the barrister
#60
ESSENTIAL READING FOR BARRISTERS
29 th A pril - 23 rd M ay 2014
E st . 1999
www.barristermagazine.com
EASTER TERM ISSUE
Barristers risk losing their Public Access advantage - Unless essential steps are taken With the Bar Council stoking the furnace over ‘public access’ for the last 10 years, there has been constant regulatory change surrounding the initiative, suggesting either a carefully measured approach to improving competitive practices, or an ad hoc response to what may be fundamental flaws in the original idea that no amount of regulatory adjustment can resolve. While the intention behind regulatory change is to present new opportunities, the Bar’s ‘evolution’ towards public access has so far only exposed barristers to competition for legal work from solicitors. Unfortunately, for many members of the Bar,
losing to solicitors in the public access arena is a foregone conclusion, particularly for those less savvy in marketing techniques. Barristers have traditionally had far less experience Dr Yuri Rapoport, than solicitors in Executive Director, dealing directly Legal Cost Finance with clients, and chambers have had considerably p.6 fewer resources than firms of
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Features Justice – the principled case for televising courts 13 Open By Richard Glover. School of Law, University of Wolverhampton, co-author, Murphy on Evidence cult of victimhood and 21 The the limits of the law– Part 1 By Barbara Hewson, barrister, Lincoln’s Inn children: Female 29 Hurting Genital Mutilation & custodial restraint By Dexter Dias QC, Garden Court Chambers. Visiting Scholar, Cambridge University cooperation in 32 International criminal cases By David O’Mahony, barrister, 7 Bedford Row
The verdict on reasonable doubt Much has been said about the ability
suggest that interpretations of BRD can
of jurors to understand legal direction
vary considerably between jurors, and
in criminal trials.
In particular, legal
inappropriate application of the standard
direction regarding the criminal standard
is a basis of appeal upon conviction. This
of proof, beyond reasonable doubt (BRD)
is potentially problematic as in the eyes of
has
the law BRD is a static concept that should
come
under
close
scrutiny
with
questions raised as to the extent to which
be uniformly applied.
News 03
City students triumph in moot at European Court of Human Rights
05
New judicial member appointed to QC Appointments Selection Panel
jurors’ correctly understand and apply the standard. Although reasonable doubt
Over the last few years, I have been working
is embedded in legal parlance and the
in collaboration with Prof. Mandeep K.
Publishing Director: Derek Payne
general public are familiar with the phrase,
Dhami from the University of Middlesex
0845 5190 176
it does not necessarily follow that jurors
and Dr. Katrin Mueller-Johnson from the
truly understand what it means. Indeed,
University of Cambridge on an Arts
there is plenty of research evidence to
and Humanities Research Council
email: info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Alan Pritchard email: info@soinspire.me.uk
p.8
phone: 24hr: email: web:
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NEWS
www.barristermagazine.com
City students triumph in moot at European Court of Human Rights Joanne Moss co-ordinates mooting activities for students on The City Law School’s professional programmes. She commented: "We are delighted by the success of our students and we also celebrate the vigour of the mooting programme at all levels across The City Law School. We are actively expanding our engagement and are on target to build a reputation as one of the best moot programmes in the world".
A team of students from The City Law School has won the European Human Rights Moot Court Competition. Ali Nihat, Niall Coghlan and Howard Leithead, who are studying the Bar Professional Training Course (BPTC) at City University London and Anna Dannreuther of the University of Law, beat leading teams from across Europe.
and Barrister at 2 Temple
media freedom.
Gardens, is the team’s coach. Sixteen
teams
She comments:
selected
to
“The quality of the advocacy
European Court of Human
has been superb and it has
Rights in Strasbourg to plead
been a privilege to sit behind
the case during the final
the team from City.
rounds. The team from The
Their
Law
were
travel
School
to
then the
submissions and responses
City
to questions have been of an
in the closing stages of the
excelled
exceptionally high standard.
competition, beating strong
They are deserving winners
opposition from Kaplan in
of both this prestigious title
the semi-finals.
and the opportunity to train at the European Court of
They triumphed in the grand
Human Rights”.
final against opponents from
The
the University of Athens and
simulation of a court trial,
in front of a jury of 9 human
began in August when teams
rights law experts. The City
were asked to examine a
team will be awarded the
fictitious case.
Council of Europe Prize; a
teams from 29 European
month-long traineeship at the
countries
European Court of Human
submissions
Rights in Strasbourg.
which concerned defamation
Clare Brown, Lecturer in Law
and hate speech in relation
at City University London
to freedom of expression and
moot,
which
is
a
Seventy-two
drafted for
written the
case
The competition is organised by the European Law Students Association (ELSA) with the support of the Council of Europe. It is designed to help students understand the principles and implementation of the European Convention on Human Rights. It is open to all law students in ELSA Member Countries as well as Council of Europe Member Countries.
The City Law School has an exceptionally strong record of success in mooting. Students won several prestigious national and international competitions in 2013. BPTC students Matthew Fraser and Jelia Sane took the top prize at the Human Rights Lawyers Association Judicial Review Mooting Competition in April. Matthew Sellwood and Daniele Selmi took part in the13th Commonwealth Student Moot held in South Africa. It was the first time in ten years that a team representing the UK had triumphed. This year, The City Law School unveiled its first ever Senior Moot, adding to its existing roster of internal competitions. Open to all postgraduates on the School's professional programmes, it is sponsored by property experts Savills and carries a total prize fund of £2,000.
NEWS
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New guidance will help barristers carry out their duties to clients, says regulator New guidance for solicitors on how they should assist barristers in telling clients of their right to complain will help members of the Bar carry out their duty, says the Bar Standards Board (BSB). The new guidance - published by the Solicitors Regulation Authority (SRA) - makes clear how instructing solicitors can better help barristers convey information about complaints
to clients - specifically, by: • Providing client contact details directly to barristers; and • Forwarding chambers' complaints information directly to clients. The barristers' Code of Conduct requires members of the Bar to inform lay clients of their right to complain. As many barristers do not have direct access to their clients they often have had to rely on solicitors to pass this
information on for them. Head of Supervision at the Bar Standards Board, Oliver Hanmer said: "In the past, we know that many chambers have reported difficulties in relying on instructing solicitors to pass on this information to clients or to provide their contact details to chambers. We welcome the steps the SRA has taken to make this easier for solicitors and barristers alike. As a regulator with a duty to
protect the public, making clients aware of their right to complain is paramount to ensuring confidence in the profession." The SRA's new guidance is available via: http://www.sra. org.uk/barristers/. Chambers' compliance with this obligation will be monitored by the BSB through supervision. However, chambers will be able to make referrals to the SRA about law firms refusing to cooperate.
Counsel travel expenses for civil and family work Making a successful travel expense claim for distances longer than 10 miles You can normally only claim travel expenses if the distance is in excess of 10 miles each way. You will to provide justification for your claim. For counsel this means that the claim needs to fall within one of four categories: 1. no local bar
2. continuity 3. specific knowledge 4. lack of available counsel 1. No local bar This applies where there are no local chambers or the number of chambers is small. The following details must be provided on the form: • explain there is no local bar • tell us the location of the most local bar • explain why counsel is required 2. Continuity
Using counsel – but not chambers – familiar with the case or client may be reasonable justification for travel provided the nature of the hearing requires it. This must be justified. 3. Specialist knowledge A particular counsel may be instructed owing to specialist knowledge or skill in a specific field of law. This needs to be justified. 4. Lack of available counsel Where the instructing solicitor
is unable to find a suitable local counsel it may be reasonable to instruct counsel form further afield. This needs to be justified on the claim form and the closest available counsel instructed. Additional information can be found at: http://www.justice.gov.uk/ legal-aid/newslatest-updates/ civil-news/counsel-travelexpenses-for-civil-and-familywork
BSB responds to the Legal Service Board’s statutory guidance on legal education and training Head of Education and Training at the Bar Standards Board, Simon Thornton-Wood, said: “As we made clear in our response to the consultation, we believe that the Legal Services Board is exceeding its powers by issuing statutory guidance; and it is not necessary, in our view, to do this. The challenge of increasing flexibility in legal education and training is a complex one and there are
no straightforward answers. We believe that front-line regulators are best placed to formulate their own approach, tailored to the needs of their respective profession. We will be publishing details of our plans later this spring.” The LSB’s press release about statutory guidance on legal education and training, issued on 4 March 2014, can be found at: http://www. legalservicesboard.org.uk/ news_publications/press_ releases/pdf/20140304_LSB_
Education_And_Training_ Consultation_Response_And_ Guidance.pdf The guidance is available at: http://www. legalservicesboard.org.uk/ what_we_do/regulation/ pdf/20140304_LSB_ Education_And_Training_ Guidance.pdf The BSB’s framework for the development of its approach to legal education and training, following the publication of the Legal
Education & Training Review (LETR) report in June, is available at: https://www. barstandardsboard.org.uk/ qualifying-as-a-barrister/letrnext-steps/ The BSB’s response to the LSB’s consultation, Increasing flexibility on legal education and training, can be found at: https:// www.barstandardsboard. org.uk/media/1548795/ bsb_response_to_lsb_letr_ consultation_final.pdf
NEWS
www.barristermagazine.com
New judicial member appointed to QC Appointments Selection Panel A new judicial member has been appointed to the QC Appointments Selection Panel .
appointment
1. The other QC Selection
appointment
Desmond
of a senior
Panel members for 2014-15
solicitor
will be:
senior barrister member, to
of the Bar Council and the
• Helen
Law Society, said:
(chairman - appointed 2012,
2. The Selection Panel is
Lord Justice Maurice Kay is
'We are extremely pleased
appointed lay member 2009)
made up of a senior judge,
the new member. He has been
to welcome Sir Maurice Kay
•
senior
a Lord Justice of Appeal since
to
member - appointed 2013)
both barristers and solicitors)
2004, and vice president of
Selection
•
and distinguished lay (not
the Court of Appeal since
extremely well qualified both
(lay
2010. After spending some
from his work as a senior judge
2011)
time in academic posts, he
and from his involvement
•
was called to the Bar in 1975.
with the work of the Judicial
solicitor member - appointed
legally
He was appointed QC in 1988
Appointments
2011)
The Panel Chair is always a
and became a High Court
and
judge in 1995. He chaired
skills will reinforce the QC
(senior barrister member -
3. For further information,
the Judicial Studies Board
Appointments
appointed 2013)
please
from 2007 to 2010 and was
look
•
Appointments Secretariat on
Treasurer of Gray's Inn in
successful Silk round as we
member - appointed 2013)
2013.
proceed with the 2014-15
The Selection Panel
will
competition.'
be
the
on
the
the
and
Stephen
Hudson, the chief executives
Commenting
Crowne
,
QC
his
Appointments
Panel.
He
Commission
knowledge
forward
is
process. to
and We
another
•
Pitcher
Sir Alex Allan (lay Sir Alistair Graham member
-
appointed
lawyers
(including
work of the Panel is shared Linda
Martin
Lee
(senior
Mann
QC
Quinton Quayle (lay
completed
with
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06
the barrister
solicitors aimed at client-relations, p.1 which is an essential component of legal service delivery.
managers’, a new and specialised breed of legal professionals that found its roots in international client practice.
Put simply, without a support structure dedicated to client management, barristers are bound to struggle with the demands of court work for one client while coping with the urgent needs of another outside of court. It is for this reason that solicitor partnerships have proven successful in the public access market, with solicitors working together as a team, covering each other’s backs, all for the good of the firm.
Many international clients who ventured into the potholed world of litigation in the UK faced daunting obstacles in terms of language and cultural barriers, and for this reason they often unwittingly offered themselves up for slaughter to unscrupulous lawyers. In response, a niche was created for legally-trained intermediaries who spoke clients’ language and intimately understood their requirements. Legal case managers have the necessary qualifications to understand the value of legal services in order to level the playing field between lawyers and clients. Furthermore, since they do not actually do any legal work themselves, the support structure they offer is highly cost-effective.
Even self-employed solicitors, unlike their barrister counterparts, rely on support staff, such as personal assistants and practice managers, who are experienced in client relations. Thus, despite the drive for deregulation aimed at bolstering barrister-client interaction, public access to stand-alone barristers (those without the facilities to support their client base) is an innately problematic proposition. Moreover, from a client’s viewpoint, despite the advantages of avoiding costduplication caused by solicitor-counsel tandems, the financial incentives derived from public access are likely to be short-lived if clients are exposed to services of inadequate quality due to a lack of basic support resources. Clearly, to succeed in the public access market, barristers need to be both costeffective and service-efficient. To this end, they need to form alliances with entities that go beyond the traditional resources provided by chambers, but stop short of resembling the cost-heavy structures of solicitors’ practices. In simple terms, what barristers need, as they evolve towards public access activity, is for their chambers to evolve with them. One possible solution is for chambers to consider expanding their range of services to include client-relations support by outsourcing to ‘legal case
Award-winning barrister and specialist in multi-jurisdictional commercial litigation and arbitration at 3PB Barristers, Nikolai Lazarev, has commented: “Combining chambers’ traditional services with the resources of legal case managers is a promising means of enabling barristers to attract a larger share of legal work. This union of legal professionals enables barristers to continue doing what they do best -
focussing their billable time on advocacy and substantive legal work - while legal case managers provide administrative infrastructure for effective client handling and play an invaluable role in supporting client-barrister relationships and communication, including post-advice support, which is another example of an important, albeit underestimated, function that is provided by legal case managers.” As a result, barristers are not only shielded from dealing with minor and repetitive matters concerning clientrelations management, but clients readily save money by avoiding paying for time that would otherwise require barristers’ involvement and be charged at barristers’ standard charge-out rate. By harnessing the expertise of legal case managers, chambers can provide public access clients with a low-cost efficient administrative resource to assist in understanding and controlling their legal matters, whilst providing barristers with the necessary support structure to achieve a state of efficiency where they can actually work less, earn more and maintain better relations with clients. Legal Cost Finance In addition to fortifying their support systems, the more progressive barristers
the barrister
may also consider alternative means of achieving competitive advantage in the contest for public access work. In this regard, the question of legal cost affordability, central to the drive behind deregulation of barrister practices, can be taken a significant step further. If barristers can provide a unique selling proposition by not only offering clients more affordable access to justice, but also easier payment terms, the public access trophy will be theirs for the taking. Offering clients better payment terms is, in fact, a matter of simply joining the dots. Barristers can now offer their clients a payment plan through thirdparty financiers in the form of legal cost credit. These new consumer credit products simply allow clients to settle their legal costs at their own convenience using affordable instalments over an extended period. The interesting twist is that by providing a nominal discount (around 5-10%) on their legal bills – as a means of offsetting clients’ financing cost (i.e. interest) - barristers can effectively secure immediate settlement of their fee notes from a third-party financier, while their clients enjoy an affordable and convenient payment method, instead of being asked to discharge their entire legal costs liability outright from their own pockets. Unlike ‘litigation finance’, which claims a stake in the outcome of a client’s case, legal cost credit solutions are useful for a wide range of case types, including instances where clients need funds to pay for a barrister’s opinion in order to qualify for ‘litigation finance’, or in cases where a client simply has cashflow limitations. Other instances include non-litigation matters, and matters where clients have already incurred legal costs and must find the means to settle their lawyers’ bills. Legal cost credit solutions, in addition
to being a unique selling proposition for barristers searching to secure new instructions, can also assist in avoiding the risk of damaging relations with existing clients when recovering aged debt. In many cases, barristers are reluctant to aggressively pursue clients (or solicitors) over unpaid bills, as this may cause tensions and affect the prospect of future work referral. Suggesting the opportunity of a convenient payment plan at no extra cost to the client, may serve as a crucial incentive that liberates aged debt and helps to improve barristers’ cash flow. Further to aged debt recovery, this type of financing arrangement has obvious win-win benefits for clients and barristers while specialist credit providers like legalcostfinance.com are already offering consumers (via their lawyers) credit lines to pay their legal costs. All barristers and their clerks have to do is to follow three simple rules: 1. When sending clients a cost estimate – offer a payment plan! 2. When sending clients an invoice – offer a payment plan! 3.When chasing clients over a debt – offer a payment plan! To increase their chances of securing a share of the public access market, barristers must consider offering their clients payment plans as a standard practice procedure. Let’s face it there aren’t too many barristers who would be unwilling to offset clients’ additional third-party financing costs by discounting their invoice by 5-10% in order to get their invoice paid without delay. A word of caution, however – access to legal cost finance is not limited to barristers alone. It is equally available to solicitors for use with their clients. It is now a question of who will be first to adopt this solution as an industry standard, and today this opportunity is far more relevant to barristers, given
07
the impending challenges they face in the competition for public access work. According to Stephen Evers, who is an experienced member of the practice management team at 3PB Barristers chambers: “A legal cost credit solution is what the legal profession has been crying out for. By shifting the risk from the lawyer back to the client, and enjoying immediate settlement of professional fees, financing clients’ legal costs provides clear advantages for lawyers over Conditional Fee Agreements.” Mr Evers continues: “I wouldn’t be surprised to see legal cost credit solutions replacing CFAs completely in the near future.” In all, to triumph in the public access market, barristers must recognise the importance of service quality and cost convenience. While the former is a wake-up call for chambers and may take additional time to satisfy, the latter is entirely in the hands of individual barristers and the solution is available for their immediate adoption. The transition from traditional advocacy to public access is undoubtedly a challenging process, but one that promises rewarding opportunities for proactive and market-savvy practitioners. Winston Churchill said “[a] pessimist sees difficulty in every opportunity; an optimist sees opportunity in every difficulty”. By recognising the ongoing regulatory changes as an opportunity and responding in a commercially prudent manner that involves adopting client-management platforms and implementing customer credit solutions, barristers have a meaningful chance of securing a share of the future legal services market. Dr. Rapoport collaborated with Nikolai Lazarev of 3PB on the above piece
08 p.1
the barrister
funded project that empirically
trial.
investigated
the
public’s
members of the public and focused on
departure
interpretations
of
reasonable
cases involving burglary, assault and
language in England and Wales over
attempted murder.
the last 25 years towards the JSB Bench
doubt. We attempted to identify some
Altogether,
we
surveyed
515
of the extra-evidential factors that
to define the standard for jurors. from
reasonable
A
doubt
Book specimen direction “of being sure
may account for differences in jurors’
What does ‘beyond reasonable doubt’
understanding and application of this
mean to jurors?
conviction threshold. Gaining a better
of guilt” is one such attempt. In one study we examined the effect
understanding of how people interpret
Across
the
standards of proof can help legal
we
professionals appreciate how it is used
interpretation of BRD
by jurors, and how they may be assisted
a study examining the effect of
the
the concept and their confidence in
to use it appropriately.
‘sure’ instruction. Here, the average
its correct use. We found that under
observed
studies the
conducted,
lowest
average
was found in
of the ‘sure’ instruction on peoples’ quantitative
interpretations
of
BRD
as well as on their understanding of
interpretation of BRD was .92 (which
the
The starting point for our research
is potentially acceptable). The highest
interpretation of BRD was .92. People
programme was to better understand
average interpretation was found in
also felt that the ‘sure’ instruction
how
interpret
a study examining consequences of
helped them to understand the standard
BRD. We wanted to find out whether
a custodial sentence for a defendant.
and it gave them confidence in using
jurors’ interpretations were generally
Here, the average BRD interpretation
the standard appropriately. Overall,
in line with the perceived wisdom
was .97 and would be considered to be
the sure instruction was found to be
of a probability of .90 or, to borrow
too stringent.
significantly easier to understand than
Blackstone’s adage, “it is better that
We were also able to examine the
when the standard is left undefined. In
ten guilty persons escape than one
variability in interpretations of BRD
addition, the sure instruction appears to
innocent suffer” (which some translate
across jurors. Across the studies we
have the desired impact across different
as
.91).
conducted, variability in interpretations
segments of the jury eligible public.
Beyond this, we were interested in how
ranged from a worryingly low BRD
peoples’ interpretations of BRD were
interpretation of .35 to an equally
Do jurors’ concerns over a defendant’s
influenced by the wording of judicial
concerning high interpretation of 1.00
welfare
instructions such as the JBS Bench
(or absolute certainty). Finally, we also
thresholds?
Book recommended ‘sure’ direction.
found evidence of considerable intra-
We were also interested in examining
individual variability implying that the
Two extra-evidential factors that may
how jurors’ perceptions of the potential
reasonable doubt represents a fuzzy
alter a juror’s conviction threshold
‘costs’ of a case such as potential
concept in the minds of individual
relate
penalty and consequences of a custodial
jurors.
associated with a guilty verdict for the
people
a
quantitively
conviction
criterion
of
sentence for a defendant might affect
sure
direction,
influence
to
the
the
their
average
conviction
perceived
‘costs’
defendant. These include the potential
their interpretations of BRD. Finally,
Does the ‘sure’ instruction help jurors
penalty associated with an offence if
we wanted to explore the relationship
understand ‘reasonable doubt’?
the defendant is convicted, and the
between
people’s
criminal
justice-
consequences of a potential custodial
related attitudes and their conviction
A possible source of the variation
sentence for the defendant. It is possible
thresholds. Since the Contempt of Court
in interpretations of BRD lies in the
that jurors may be less likely to convict
Act 1981 prohibits the study of real
imprecision of the standard. In an effort
when the defendant’s alleged offence
jurors, we employed a method common
to reduce inter-individual variability
is more serious, and consequently his/
in juror decision-making research i.e.,
in interpretations of BRD as well as
her potential penalty is more severe.
surveys of individual mock jurors at the
to bring interpretations closer to that
This
pre-deliberation stage of a simulated
intended, there have been attempts
effect suggests that as penalty severity
so-called
‘severity-leniency’
the barrister
09
increases jurors’ are less willing to risk
verdicts on defendants who faced more
a pro-defence attitude. Finally, pre-trial
making a type I error (i.e. convicting an
adverse consequences of a potential
attitudes combined with interpretations
innocent person) over a type II error
custodial sentence. Thus, the influence
of BRD were shown to be an important
(i.e. acquitting a guilty person). It is
of such extra-evidential variables arises
predictor of how a juror will vote
also conceivable that jurors might be
at early stages of a trial when jurors are
regardless of the evidence.
influenced by the consequences of the
considering the evidence rather than at
penalty for a defendant. A custodial
later stages when they are applying the
penalty
negative
conviction threshold. From a pragmatic
ramifications, and some defendants
standpoint, the fact that jurors may
The right to trial by a fair and impartial
may have more to lose by a custodial
be
extra-evidential
jury is one of the pillars of our justice
sentence than others. For example,
factors further underscores the need to
system. In addition, the due process
defendants with primary responsibility
instruct them on the application of legal
model provides legal safeguards for
for childcare, household finances and
(probative) factors alone, irrespective
defendants. Studies have shown public
employment may be deemed to have
of the potential ‘cost’ to the defendant.
confidence in the jury system to be
‘more to lose’ than a defendant with
Both of the extra-legal factors studied
consistently high and by and large, it
no family, financial or employment
here are legally relevant at a later stage
seems that they have every right to
responsibilities.
jurors
in criminal proceedings (i.e. sentencing)
be confident. The jury system works
may adjust or increase their conviction
but they should not be informing earlier
well and most of the time the verdict
threshold so they are less likely to return
decisions made by jurors.
is the appropriate one. However, there
can
have
many
Consequently,
influenced
by
a guilty verdict. This is problematic
Conclusion
is no doubt that the decision-making
because in the eyes of the law, the
The biasing effect of jurors’ pre-trial
task faced by jurors is a difficult one.
conviction threshold should not fluctuate
attitudes
Therefore, identifying those parts of the
according to characteristics of a case.
process where jurors may need help is It is well known that jurors’ criminal
important. The findings of our research
In two studies we asked people to
justice-related attitudes can lead to a
programme
imagine that they were serving on a jury
pro-prosecution bias. In another study
might be needed to deal with potential
in a criminal trial. They were asked to
we examined how jurors’ interpretations
variability
read a trial summary of a fictitious case.
of BRD and their verdicts were biased
of BRD.
In one study we varied the seriousness
by their pre-trial attitudes. We predicted
legal directions and operate with as
of the offence the defendant was charged
that a juror with a pro-prosecution bias
little influence from extra-evidential
with and in the other the severity of the
would have a lower conviction threshold
factors is a crucial element in the
potential consequences of a custodial
than a juror with a pro-defence bias,
proper functioning of the jury decision-
sentence for the defendant. Overall, we
and consequently the former would be
making process. Given that the legal
found that although these two extra-
more likely to return a guilty verdict
system confers great responsibility on
evidential factors did not influence
compared with the latter. The results
jurors to make decisions that may have
jurors’ interpretations of BRD, it did
of our study clearly demonstrated that
severe consequences for the defendant’s
affect other important aspects of their
jurors' interpretations of BRD and their
liberty and for public safety, the system
decision-making.
Defendants charged
verdicts are associated with their pre-
is responsible for setting out clearly
with more serious offences (that had
trial attitudes. The more biased jurors
what it asks of the juror, so that jurors
more severe penalties attached to them)
were towards conviction, the lower their
can, and are confident that they can,
and defendants for whom there were
quantitative interpretation of BRD (i.e.,
accomplish this task.
more adverse consequences of a potential
lower conviction threshold). In addition,
custodial sentence were all judged less
jurors with a pro-prosecution bias were
Samantha Lundrigan, PhD
likely to have committed the crime. In
more likely, given the same evidence, to
Anglia Ruskin University
addition, jurors rendered fewer guilty
find a defendant guilty than those with
suggest in
that
jurors’
initiatives
interpretations
Jurors’ ability to understand
10
the barrister
Transition within the legal sector – how to manage the process successfully Agnes Bamford of executive coaching company The Results Centre has advice for legal personnel dealing with the challenge of workplace transition.
T
he
legal
profession
your control, which can make it hard to
to the behaviours and norms of the new
is often seen as a
understand exactly why you feel the way
culture.
static environment by
that you do.
those working outside it
(and
sometimes
The important thing to remember is that Transition stages
it’s completely normal to experience
within it), populated
these negative emotions, so accept and
by traditional partnership structures
Whether moving to new chambers, a new
acknowledge them, whilst focusing on
and slow to implement the different
role or a new workplace, the transition
finding the positives and taking action.
concepts embraced by other industries
period typically involves several phases
such as outsourcing. However, the
that most people experience, although
legal workplace is also undergoing
the timescale and intensity can vary
change
widely.
as
increasing
numbers
of
Strategies for dealing with transition The good news is that there are practical
personnel consider the alternatives to
strategies that you can use to help
private practice or self-employment,
1.
to
manage the anxiety of transition, which
encouraged by initiatives such as the
experience the ambiguity of initial
apply to most situations and most levels
relaxation of the Bar Standards Board’s
excitement coupled with anxiety about
of personnel – from the most junior
regulatory changes allowing barristers
the new situation. This may be followed
through to senior.
to act as partners in a law firm.
by a honeymoon period of discovery and
Whilst this change may be good, it can
Firstly,
you
are
likely
exploration, where people assist you as
The first step is being realistic about
a newcomer.
the situation that you are entering. This
also be a major source of stress for
means recognising that transitioning
most people - and those working in the
2.
The first dip is normally a
between roles or firms will almost
legal profession are no different.
You
reaction to the new environment and an
certainly incur periods of uncertainty
may have worked long and hard for
inability to consistently function within it
and doubt. However, just acknowledging
promotion,
barrister
as well as you know that you are capable
that this is normal can help you to
or partner and you may be excited by
of. This includes logistical systems and
deal with the situation better. It is also
moving to an innovative new practice,
procedures that you haven’t yet learned
important to appreciate that this is an
but you are likely to find the transition
to manage. After learning to adjust to
emotional process, a rollercoaster for
period stressful.
the new environment and its demands,
some, and therefore not something that
you will soon function more comfortably
you can rationalise your way out of.
making
senior
There are many variables that influence
and successfully.
transition stress, from basic changes in
Think about how you normally tackle
routine to potentially profound changes
3.
As you become more involved
hardship and how you can prepare for
in how you see yourself and your role
in the new role, you may experience
these experiences. Difficult situations
within an organisation. This can be
a second dip: an internal reaction as
are often easier to tackle – and may
particularly difficult if moving to a
you continue to adjust your behaviour.
even act as a powerful motivator - as
completely different environment e.g.
This is because former behaviours may
long as you are prepared for them.
from chambers to working in-house
not be sufficiently effective or generate
Whilst the majority of your attention
within industry.
Often, much of the
the expected reaction. However, you
should be focused on success, it will
focus centres on elements outside of
should eventually find a way to adapt
also help if you are prepared for any
the barrister
negative experiences. It is possible to
during the lows. It may also be helpful
stressors.
change your mindset and learn how
to focus on what helped you to manage
impacts you: what you tend to think,
to like being uncomfortable, teaching
this transition.
feel and do as a result. Then consider
yourself to enjoy the possibilities offered by tough challenges. Learning from change
Think
11 about
how
stress
what you can do that will help you to Now consider the potential implications
feel balanced and manage stress more
for your current situation. What did
effectively.
you learn about yourself that you could apply to your present transition?
Tips for managing transition stress
personal experiences, so looking back
It may also be useful, dependent upon
•
at other past transitions can help you
your experience and areas of practice
the top ten successes in your working life
understand how you react to change.
expertise, to look at how others, including
so far. Consider where you have added
Thinking about your past responses to
clients, have dealt with transitional
value to the organisation or people in it
major life transitions such as having
changes in their lives, environment and
and when you have received praise or
children, getting divorced or moving
circumstances – how can you learn from
recognition. What has brought you the
house can all prepare you for the
these observed experiences?
most enjoyment and when you have felt
We all learn from our professional and
changes ahead. What were the periods
Get into a positive mindset. List
positive and satisfied?
of emotional ‘highs’ and enablers of
Reflect on what normally causes you
these? Think of the periods of emotional
stress, identifying the situations, types
•
‘lows’ and what triggered them and
of people, responsibilities or areas (work
the main skills/qualities you bring that
reflect on how stress manifested itself
and personal) that are your specific
have enabled your success? Identify ten.
Considering the above, identify
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12
the barrister
No matter how successful your career, stress and anxiety are inevitable parts of transition. Approach the situation as you would a difficult case or complex legal issue – by preparing and gathering information. This way, its impact can be
managed,
minimised
and
even
transformed into something positive. About the author Agnes Bamford specialises in crosscultural
business
and
personal
development. She is a partner at executive
coaching
company
The
Results Centre and a board member of the Norwegian-British Chamber of Commerce in the UK. Agnes holds an Look objectively at your new
reasonable risks. If you are moving home
MSc in Business from the Norwegian
role and consider the four/ five best
get involved in the new community:
School of Economics and a PGCE in
things
volunteer, explore and interact.
coaching from the UK.
and what would be the best outcome for
•
www.theresultscentre.com
you in this role 12 months from now?
trust who can introduce you to parts
Identify two things that you can do
of the new culture that you would
immediately to move towards achieving
not otherwise have access to, as well
this outcome. It may help to imagine a
as helping you to make sense of the
colleague you admire stepping into this
differences. New colleagues can show
role - what would they do in the first
you the culture from the inside, as well
month/three months?
as helping you to interpret reactions
•
about
the
new
opportunity:
which of your main skills will be useful
around •
Approach a colleague that you
you
and
develop
effective
Try to make sense of your new
interaction with others. They can also
environment. Look for logical reasons
offer feedback and act as a safe sounding
for why people behave as they do and
board before you take action.
for why things work differently. Look for the ‘big picture’. •
Pay attention to the different
values,
behavioural
patterns
communication
styles
new
and
colleagues
of respect
and your those
differences. How do your beliefs, values and assumptions colour the way you perceive them? •
Be prepared to step outside of
your comfort zone. Great learning can occur when you do. Take advantage of your new environment and take
The barrister magazine cannot accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.
the barrister
13
Open Justice – the principled case for televising courts By Richard Glover. School of Law, University of Wolverhampton, co-author, Murphy on Evidence
T
he purpose of this
public to see the way justice is delivered
article is to briefly
in an even more open and transparent manner than at present’5.
examine for
the
case
televising
court
benefit from anonymity in sexual offence trials8. Accordingly, it appears evident that ‘open justice’ is an increasingly important
principle
governing
the
proceedings based on
The common thread running through
practice of the courts. It may be regarded
the principle of open
these speeches is the principle of ‘open
as a principle related to the rule of law,
justice. The Crime and Courts Act 2013
justice’. It is a principle that, in recent
provides that existing legislation, which
times, has rarely been out of the news.
which requires a level of ‘fair warning and predictability9’ in respect of how
prohibits photography, drawing in court
In September 2013, Judge Peter Murphy
authority is to be exercised, but is also
and sound recordings, can be disapplied
ordered Rebekah Dawson to remove
a distinct principle. How, then, should
in certain circumstances. So far, only
her niqab when she gave evidence at
it be defined? Judge Peter Murphy,
Court of Appeal hearings have been affected1, but it is anticipated that
her trial for witness intimidation and
drawing on Lord Diplock’s speech in
cameras will spread gradually to other
justified this, in part, on the grounds of open justice6. Then, in November, Mr
Attorney-General v Leveller Magazine Ltd.10, puts it neatly:
courts, including the Crown Court and,
Justice
in time, perhaps even the magistrates’
questioned
court.
need
This will complete the process
Sweeney for
the open
begun by the Supreme Court, which has
justice
allowed cameras into its proceedings
compromised
to
since its inception in 2009, has its cases streamed live on Sky2 and its own YouTube account3.
in
The broadcasting of court proceedings
case is adjourned
is popular with the media but, perhaps,
until March. More
more surprisingly the arguments in
recently, following
favour have also been largely accepted
the
by senior members of the judiciary.
the
Lord Dyson, the Master of the Rolls,
Street
favours opening up trials as well as
William
appeals to cameras and has argued that
issues relating to
televising proceedings is necessary to ‘secure public scrutiny of the courts’4.
the
Similarly, Lord Thomas, the Lord Chief
again in the news,
Justice, has stated: ‘I and my fellow
as
judges welcome the recording of the
renewed
proceedings. We believe it will help
for
defendants,
assist understanding of the way in
as
well
which the courts work and enable the
complainants,
a
trial
be
terrorism held
‘amid
unprecedented secrecy’7. The
acquittal
of
Coronation actor, Roache,
principle
of
open justice were there
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were calls as to
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14
the barrister
filmed for the Channel 4 documentary ‘The Murder Trial’ screened in July 2013, which revealed ‘the reality’ but also ‘the banality of the courtroom’ 16. The lawyer, Baroness Helena Kennedy, has been a prominent opponent of the introduction of cameras and is sceptical of arguments based on open justice. She has argued that television companies are only interested in ‘the salacious and the sensational’ and fears that the public would only see exciting edited highlights of Crown Court trials and not the full story 17. However, the same criticisms might be equally laid at The primary meaning of open justice is
exceptions such as the phone hacking
the door of newspapers. As a defence
that criminal proceedings should be held
trial, is a significant lacuna in the open
lawyer she will know that newspapers
in open court, in public, and be open to
and public nature of the trial process.
often
reporting by the press… Any derogation
The televising of proceedings steps into
at length, as if it is the unmitigated
from open justice should occur only in
this breach and, to quote Mr Justice
truth, and devote much less time to
exceptional circumstances and where the interests of justice require it…11
Bayley’s judgment in the pre-television
the defence. A casual perusal of daily
authority of Daubney v Cooper, is the
newspapers also often reveals stories
best means of securing a position where
that highlight the sensational nature of
the
‘all parties who may be desirous of
a trial, for example: ‘Coronation Street’s
question - how do we secure such a
hearing what is going on’ are able to
public hearing in the 21st century? Should it be sufficient that the public
be ‘present for the purpose of hearing what is going on’.13 People unable to
Michael Le Vell “held teddy over girl’s mouth as he raped her”18’. Moreover,
is simply entitled to attend court, even
attend court because of work or other
is largely beside the point. The key
though it is apparent that it is relatively
commitments will be enabled to be
question is whether, in principle, trials
rare for the entitlement to be exercised?
‘present’ in order to witness the trial.
should be televised and not whether
However,
this
definition
begs
report
the
prosecution
case
the use of exciting edited highlights
the full story will be presented because
The journalist Duncan Campbell has greater
of superficial news reporting. Again,
public scrutiny would bring greater
the televising of Parliament provides
When I first started covering criminal
transparency to the court system but
a helpful comparison - the fact that
trials in the early 1970s, long queues
there will, of course, also be potential
news bulletins often provide only edited
were still common for high-profile
pitfalls.
It is sometimes said that
highlights of the ‘knockabout’ Prime
murder cases. The public gallery would
cameras would distort the trial process
Minister’s Question Time, and not the
be full, people craning their necks to see
complexity
the accused brought up from the cells.
because jurors would become ‘star struck’ and lawyers ‘grandstand’ 14.
Today many murder trials take place
That is a danger, but similar comments
suggestion that Parliament should not
without a single person in the press box
were made when the United Kingdom Parliament was to be televised 15 and
be televised at all.
there is little evidence that politicians
Baroness Kennedy is surely right that
have been affected. Furthermore, there
we should be concerned about the effect
It is contended that the absence of a
was no evidence of these problems in
of cameras on the participants in a trial.
public to witness a trial, with notable
the trial of Nat Fraser, a Scottish case
However, there seems no reason why,
noted:
or a single member of the public in the gallery 12.
Opening
up
the
courts
to
of
a
full
parliamentary
debate, does not usually lead to the
15
the barrister
as now, proper arrangements could
the Closed Material Procedure hearings
which is seen and heard by a court
not be made to protect their interests,
that have proliferated in recent years
for example, by screening, ‘pixelating’
due to concerns about terrorism, and
determining his case is… fundamental’ 21. The Supreme Court was of a
images or excluding cameras where
which were extended by the Justice and
similar view and in Bank Mellat v HM
necessary. The fact that there may be
Security Act 2013. In relevant cases,
difficulties, for instance, regarding the use of the trial highlights for television
instead of the Public Interest Immunity regime,19 the court appoints special
Treasury described the Procedure as ‘obnoxious’ 22. It may be countered
or in how witnesses may be protected
advocates who are not responsible
use of the Closed Material Procedure are
from intimidation, should not detract
to the defendant/applicant and there
exceptional but, arguably, as the appeal
from the principled case for opening
is restricted disclosure of material to
courts have maintained, the principles
up the courts to the public gaze. These
lawyers for reasons of national security.
of open and natural justice that are
are all matters that can be managed.
The procedure resembles something
compromised
However, there is one element of
from Franz Kafka’s The Trial, where
that even exceptional infringement is
Kennedy’s argument that should give us
‘the proceedings were not only kept
unacceptable. It also seems, following
some further pause for thought.
secret from the general public, but from the accused as well’ 20. In Al-Rawi
the recent judgment in ZZ v Secretary of State for the Home Department 23, that
Kennedy argues that if ‘the political
v Security Service the Master of the
the limited disclosure regime may be
class’ was really concerned with the
Rolls said this in criticism of the Closed
incompatible with European Union law.
principle of open justice it would not
Material Procedure: ‘In our view, the
be supporting the ‘disgraceful spread
principle that a litigant should be
So what does the future hold for
of secret courts’. By this she means
able to see and hear all the evidence
cameras in courts? Lord Justice Toulson
that the circumstances leading to the
are
so
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fundamental
16
the barrister
commented in 2012 that ‘the purpose of
1 The Court of Appeal (Recording and
to screen The Murder Trial’, The Law
the open justice principle… is to enable
Broadcasting) Order 2013.
Society Gazette, 15 July 2013.
the public to understand and scrutinise the justice system’ 24. It is evident
2
17 Cameras in court are a threat to
that the presence of cameras in courts
3
will aid this process and, moreover, the
UKSupremeCourt.
18 Jenny Booth, 2 September 2013.
absence of cameras appears increasingly
4 ‘Advances in Open Justice in England
19 For a further discussion of Public
anachronistic when it is already possible for reporters to ‘tweet’ from court 25. It
and Wales’, Hong Kong, 18 October 2013
Interest Immunity and the development
at [35] http://tinyurl.com/q643k54.
of the Closed Material Procedure, see
seems likely that televising the Court of
5 ‘Justice in One Fixed Place or Several?’
Chs. 13 & 14: Glover & Murphy, 'Murphy
Appeal will, as Lord Dyson envisaged 26, be the first stage in the cautious
The Birkenhead Lecture, Gray’s Inn,
otn Evidence' 13th edn. (Oxford: Oxford
21
University Press, 2013).
development of the broadcasting of court
kvxjw7n.
20 Franz Kafka, The Trial (Aylesbury:
proceedings. Of course, the crucial step
6 R v D(R), Blackfriars Crown Court
Penguin Books Ltd., 1972) 129.
will be when Crown Court trials are
[2013] Eq LR 1034 and online http://
21 [2010] 3 WLR 1069 at 1079.
opened up. This will have to be very
tinyurl.com/qfpvr4o.
22 [2013] 3 WLR 179 at 210.
closely regulated in order to protect the
7 David Brown, ‘Judge questions need
23 [2014] EWCA Civ 7.
trial participants and to avoid coverage
for secrecy in terrorism trial’, The Times,
24 R (Guardian News and Media Ltd.) v
degenerating into the worst of ‘reality
19 November 2013.
City of Westminster Magistrates’ Court
TV’, as appears to have happened on
8 The arguments for and against were
[2012] QB 618 at 649.
at least one occasion in New Zealand,
well-rehearsed following the acquittal
25 Following the Practice Guidance:
where in-court television began in 1995 27. The procedure in New Zealand is
of Roache’s Coronation Street colleague,
The Use of Live Text-Based Forms of
Michael Le Vell, and engage directly with
Communication (Including Twitter) from
currently under review in the light of
the principles of open justice. See my
Court for the Purposes of Fair and Accurate
18 years’ experience and changes in technology 28, but the intention appears
blog ‘Open Justice: Michael Le Vell and
Reporting [2012] 1 WLR 12. E.g. the jury
the Anonymity of Defendants’ http://
question ‘tweeted’ by David Brown of
to be to review rather than remove
tinyurl.com/mebsmnk.
The Times from the Dave Lee Travis trial
cameras from courts. No doubt the
9 A. Ashworth & J. Horder, Principles of
– ‘if sure complainant telling truth, must
findings will make interesting reading
Criminal Law 7th edn. (Oxford: Oxford
they find guilty despite passage of time
for the judiciary in England and Wales.
University Press, 2013) 81-2.
& lack of supporting evidence?’ https://
http://news.sky.com/info/supreme-
court.
justice, The Guardian 3 November 2013 https://www.youtube.com/user/
October
2013.
http://tinyurl.com/
http://tinyurl.com/mr66l5d.
10 [1979] AC 440.
twitter.com/DavidhBrown.
Finally, it is to be hoped that the
11 R v D(R), Blackfriars Crown Court
26 ‘Advances in Open Justice in England
introduction of cameras into courts, in
[2013] Eq LR 1034 and online http://
and Wales’, Hong Kong, 18 October 2013
the name of open justice, will also mean
tinyurl.com/qfpvr4o at [28].
at [15] http://tinyurl.com/q643k54.
that it becomes increasingly difficult to
12 Duncan Campbell, ‘The decline of
27 The Scott Guy murder trial. Review
justify the Closed Material Procedure.
the British trial’, New Statesman, 12
of court TV promised, The New Zealand
This may appear optimistic but, after
November 2013.
Herald,
all, as Lord Hewart CJ stated in R v
24
September
2012
http://
tinyurl.com/p3smpq3.
Sussex Justices, ex parte McCarthy: ‘it
13 (1829) 10 Barnewall and Cresswell
28 Media in Courts Review http://www.
is not merely of some importance but is
237 at 240.
courtsofnz.govt.nz/In-Court-Media-
of fundamental importance that justice
14 As noted by Paul Mason, Court on
Review.
should not only be done, but should
Camera: Electronic Broadcast Coverage
29 [1924] 1 KB 256 at 259.
manifestly and undoubtedly be seen to be done’ 29. The principle remains the
of the Legal Proceedings, http://usf.usfca.
same, whether we are considering the
15 HC Deb 19 October 1972 vol. 843,
use of cameras in court or the legitimacy
cols. 465-585.
of the Closed Material Procedure.
16 Catherine Baksi, ‘Channel 4 was right
edu/pj/camera-mason.htm.
the barrister
17
A question of compulsion: US requests for compelled FCA interviews By Andrew Smith, Partner, Corker Binning
C
ompelled interviews are
line is sometimes blurred when the
interviewee’s
a long-standing feature
US authorities request the product of
requesting an undertaking from the DOJ
of
compelled interviews conducted by their
which upholds the privilege against self-
UK counterparts.
incrimination, i.e. an undertaking that
the
criminal
regulatory
and
landscape
in the UK. The Serious
Article
6
rights)
by
the interview transcripts cannot be used
Fraud Office (SFO) has
These requests generally take one of
as evidence against the interviewee in
the power to compel persons to answer
two forms. The US authority may seek
any US criminal proceedings. However,
questions under section 2 of the Criminal
the product of compelled interviews
an undertaking of this nature only solves
Justice Act 1987. The Financial Conduct
which have already been conducted in
part of the problem. The transcripts
Authority (FCA) has a similar power
the UK. Alternatively the US authority
may be inadmissible as evidence in the
under section 171 of the Financial
may request the UK authority to conduct
US, but they can still provide valuable
Services and Markets Act 2000 (FSMA).
a compelled interview at its behest (as
leads in an evolving investigation, and
Answers given in such interviews are
envisaged by section 169 FSMA). In
thus indirectly assist the US authorities
not generally admissible as evidence
both scenarios the UK authorities are
in locating admissible evidence which
against the interviewee in criminal
being asked to hand over information
can be used to prove their case.
proceedings. That reflects the primacy of
which the US authorities would have
Whether it is wise for US investigators
the privilege against self-incrimination
been unable to
in criminal proceedings – a principle
obtain
encapsulated by the European Court
their domestic
of Human Rights in UK v Saunders:
powers.
“the prosecution in a criminal case
US authorities
[must] seek to prove their case against
can thus obtain
the accused without resort to evidence
potentially
obtained through methods of coercion
incriminating
or oppression in defiance of the will of
material
the accused.” However, answers given
exploiting
in compelled interviews are admissible
legal anomaly.
using The
this
of non-criminal proceedings, e.g. non-
In
market abuse proceedings brought by
border criminal
the FCA before the Regulatory Decisions
context (e.g. a
Committee or Upper Tribunal.
request
the
cross-
from
the Department The privilege against self-incrimination
of Justice (DOJ)
is more far-reaching under US law.
to
Under
the
SFO
Amendment, the idea of a compelled
be
careful
interview is anathema. A person cannot
guard
be compelled to answer questions,
prejudice
regardless of whether the interviewee is
the interviewee
being questioned in a criminal or civil
(and any claim
investigation. Whilst this distinction
that it is acting
between the UK and US treatment of
incompatibly
self-incrimination is a clear one, the
with
US
Constitution’s
Fifth
NATIONAL TENDER EXTENDED!
by
against the interviewee in most types
the
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18
the barrister
Amendment. The FCA will write to the
contracts and would lead to disciplinary
relevant persons, inviting them to attend
consequences
interviews voluntarily, but threatening
dismissal).
the use of a compelled interview under
it would be necessary to determine
section 171 FSMA if they refuse. The
whether the product of the interview,
recipient of the letter may believe that,
if released by the employer to the UK
if ultimately he can be compelled to
and US authorities in the context of
attend an interview, there is little point
a corporate self-report, would have
in waiting. And therein lurks the danger.
the same legal status as a compelled
By being subtly encouraged by the FCA
interview conducted by those authorities
to answer questions voluntarily, the SEC
in the exercise of their statutory powers,
will be on stronger ground in arguing
and accordingly whether the transcript
that an interviewee waived his Fifth
would be admissible as evidence against
Amendment rights, and accordingly that
the interviewee in UK or US criminal or
his answers are admissible in any US
regulatory proceedings.
In
(including these
potentially
circumstances
proceedings against him. to use compelled evidence in this way,
On one view, an internal investigation
and whether the suspects can claim that
The lesson is that, on receiving such
interview
the investigation has become abusive or
a letter from the FCA, the recipient
compelled interview: it is simply a fact-
tainted as a result, are matters for US
should seek UK and US advice in order
finding exercise incorporating none of
legal advice. From a UK perspective,
to evaluate whether he should insist
the statutory protections of SFO or FCA
however, the SFO will rarely hesitate
on a formal statutory request for a
compelled interviews. On the other hand,
in handing over compelled material to
compelled interview, which would make
it seems overly simplistic to argue that
the DOJ provided the Saunders-style
it more difficult for the SEC to admit the
an interview is only truly “compelled”
undertaking is in place.
answers as evidence in US regulatory
if criminal sanctions can be imposed in
is
not
equivalent
to
a
proceedings. Subject to US law advice, it
consequence of an interviewee’s failure
The potential prejudice to a suspect may
may also be worth stressing at the outset
to comply; an internal investigation
be greater in the cross-border regulatory
of the FCA’s compelled interview that the
interview is hardly voluntary given the
context (e.g. a request from the Securities
interviewee is only answering questions
serious disciplinary consequences that
and Exchange Commission (SEC) to the
in light of the sanctions for refusing to do
may result from a refusal to attend.
FCA). The FCA does not need to request
so (a potential contempt of court); that
The status of such interviews, and their
an undertaking from the SEC because
his testimony is therefore involuntary;
admissibility against the interviewee in
Saunders extends the privilege against
and that it does not constitute a waiver
criminal and regulatory proceedings,
self-incrimination only as far as criminal
of his Fifth Amendment rights. Taking
may well become the subject of judicial
proceedings, which is not a type of
steps such as these may serve to protect
scrutiny in the future, particularly given
proceeding which the SEC can initiate.
the interviewee, not only in any US
the introduction of Deferred Prosecution
Thus the FCA can legitimately claim
regulatory proceedings, but also in
Agreements (DPAs), which are likely to
that for it to require an undertaking
the event that, further down the line,
spur ever greater numbers of companies
which upholds the privilege against
a criminal law enforcement body such
to consider the benefits of internal
self-incrimination is inapposite. In this
as the DOJ makes a legally enforceable
investigations and self-reporting.
regard it is sufficient for the FCA to
request for the interviewee transcripts.
presume that US law provides adequate safeguards regarding the admission as
Similar steps may also need to be
Corker Binning is a law firm specialising
evidence in the US of material obtained
considered in interviews conducted in
in business crime and fraud, regulatory
compulsorily in the UK.
the course of an internal investigation by
litigation and general criminal work of
a bank or company’s lawyers. Bank or
all types.
In this firm’s experience the FCA is
company employees are often warned,
increasingly minded to assist the SEC in
explicitly or otherwise, that to refuse
seeking to circumvent the admissibility
to answer questions in such interviews
problems
would be in breach of their employment
created
by
the
Fifth
www.corkerbinning.com
19
the barrister
Where two wrong wills can be right: Marley v Rawlings: a change in approach to the interpretation and rectification of wills. By James Lister & Rebecca Piper Associates in the Contentious Trusts and Estates Team at Charles Russell LLP
T
he
Supreme
handed
Court
grounds that (i) the will did not satisfy
contracts and other documentation -
a
the formalities laid down in section 9 of
however Lord Neuberger has changed
landmark judgment on
down
the Wills Act 1837 (“the Wills Act”) and
this approach stating that “when it
22 January 2014 (Lord
(ii) even if it had done so, it was not open
comes to interpreting wills, it seems
Neuberger giving the
to her to rectify the will (on the basis
to me that the approach should be the
judgment of the court
that the error was not one of a “clerical”
same [as when interpreting contracts]…
in relation to the law in England & Wales
nature) under section 20 Administration
the aim is to indentify the intention of
and Lord Hodge in relation to Scotland)
of Justice Act 1982 (“AJA”).
the party…by interpreting the words
overturning the High Court and Court of
used in their documentary, factual and
Appeal’s decisions in the case of Marley
The Court of Appeal upheld Proudman
v Rawlings [2014] UKSC 2.
J’s decision on the first ground (that the
commercial context”.
will failed to comply with the Wills Act
The
THE FACTS
formalities), and so found it unnecessary
construction/rectification
The case concerns the execution of
to consider the point on rectification. Mr
now be crucial in interpreting whether
the wills of Mr and Mrs Rawlings.
Marley appealed to the Supreme Court.
and how a will needs to be rectified (the
The married couple instructed their
intention
of
the
testator cases
on
could
court should in effect put itself “in the
solicitor to prepare simple mirror wills
THE SUPREME COURT’S DECISION
for them, benefitting each other on
The Supreme Court has overturned
first death, and Mr Marley (who they
the decision of the lower courts by a
treated as an adopted son) on the death
unanimous decision, finding that Mr
2.
of the last to die. Their wills had the
Rawlings’ will did in fact satisfy the
formalities to rectification claims under
effect of excluding their two biological
formalities of the Wills Act so as to be a
the AJA
sons, to whom they were not close.
“will” within the scope of section 20 AJA
When the solicitor visited the couple to
and that it could therefore be rectified
The two sons sought to argue that the
execute the wills, he mistakenly handed
so that it contains the typed parts of the
will could not be rectified under section
Mr Rawlings’ will to his wife to sign,
will signed by Mrs Rawlings in place of
20 AJA as it was not a will at all as a
and vice versa.
the typed parts of the will signed by Mr
result of its failure to satisfy section 9(a)
inadvertently signed each other’s wills.
Rawlings, thereby allowing the deceased
and 9(b) of the Wills Act. Lord Neuberger
The mistake was not noticed until the
couples’ testamentary wishes to come in
rejected this, finding that section 9
death of Mr Rawlings in 2006, his wife
to effect.
was concerned with formalities, not
The couple therefore
having pre-deceased him in 2003. The
armchair of the testator”).
Application
interpretation.
of
Wills
Act
He was satisfied that
couple’s sons sought to challenge the
POINTS FROM THE JUDGMENT:
section 9 had been complied with in this
validity of Mr Rawlings’ will, as if it were
1
The change in approach to the
case stating that “as it was Mr Rawlings
held to be invalid they would benefit
interpretation of wills – a move towards
who signed it, it can only have been
through the intestacy rules. Mr Marley
an intention based approach.
his will” and that “it was Mr Rawlings’
commenced
probate
proceedings
intention at the time he signed the will
seeking to rectify the will and seeking
Previously
probate to be granted of the rectified
divergence between the Courts’ approach
there
had
been
some
that it should have effect”.
will.
At first instance, Proudman J
on interpretation of wills compared
Lord
dismissed Mr Marley’s claim on the
to their approach on interpretation of
unless the will was rectified it would not
Neuberger
acknowledged
that
20
the barrister
from the previous narrow approach and encouraging the use of section 20 AJA in a wider context. THE FUTURE POST MARLEY The previous position of the Court in relation to rectification of wills has been very strict and narrowly applied. This of course brings certainty, although in some situations an unjust result. It was clear that the lower Courts considering the matter were frustrated by the decision that they felt they had to reach and arguably this a further example of the Supreme Court working hard to find a way to “do the right thing”, as they satisfy the requirements of full knowledge
has been the commonly held position
did in the decision in Prest v Petrodel
and approval of the will but did not view
that the term “clerical error” had a
[2013] UKSC 34 last year.
this as a bar to rectification, stating “It
relatively narrow meaning. Blackburn
does not appear to me that a document
J outlined the position in Bell v Georgiou
There is a possibly that the Court’s
has to satisfy the formal requirements
[2002] EWHC 1080 (Ch): “the essence of
decision in Marley will open the floodgates
of section 9, or of having the testators
the matter is that a clerical error occurs
to further claims of rectification as
knowledge and approval, before it can
when
something
lawyers seek to explore and push the
be treated as a “will” which is capable of
which he did not intend to insert or
new boundaries for the definition of
being rectified pursuant to section 20”
omits something which he intended to
‘clerical error’ and attempt to extend the
and ”I can see no reason why the word
insert”.
scope of cases for rectification that can
someone…writes
be brought under section 20. This case
“will” in section 20(1) could not be read as meaning a document which, once it is
The effect of the decision in Marley
has also muddied the waters in relation
rectified, is a valid will”.
is to widen this definition to include
to the requirement of knowledge and
“a mistake arising out of office work
approval of wills, which was previously
of a relatively routine nature, such as
an established area of law – in particular
preparing, filing, sending, organising
the comments concerning knowledge
Section 20(1) AJA provides that if
the execution of, a document (save
and approval for a rectified will, before
a court is satisfied that a will is so
possibly, to the extent that the activity
rectification, are likely to require some
expressed that it fails to carry out the
involves some special expertise)”.
further exploration.
The general approach of the Court
The Courts will need to be quick to stamp
3. A wider approach to rectification.
testator’s intentions, in consequence of (a) a clerical error or (b) a failure to
on attempts further to widen the scope of
understand his instructions, the court may order that the will can be rectified so
Lord Neuberger has stated that “it would
this decision in order to ensure that the
as to carry out the testator’s intentions.
appear appropriate that the grounds
outcome of this case is not taken beyond
Lord Neuberger has sought to widen the
for rectification are as wide for wills as
situations where wills need to be ‘saved’
circumstances in which this provision
the words of section 20(1) can properly
due to a human error in preparing the
can be used in two respects:
allow”. This would seem to allow not
will making them otherwise invalid or
only the widening of the use of “clerical
incorrect.
The definition of ‘clerical error’
error” as in Lord Neuberger’s judgment, but would seem to indicate that the
Since section 20 AJA came into effect it
Court generally favours a move away
the barrister
21
The cult of victimhood and the limits of the law– Part 1 ‘The notion that there exists an evil conspiracy given to preying on children and causing them harm is an ancient one…when fantasy is mixed with fact in unequal proportions, the fantasy can sometimes become even more dangerous and even more destructive’ Richard Webster
By Barbara Hewson, barrister, Lincoln’s Inn
T
his
article
considers
certain problems that stale
accusations
malicious falsehood case of Reed & Lillie
It is perhaps relevant to bear in mind
in 2002:
the words of Lord Hewart C.J. in Bailey
of
[1924] 2 K.B. 300, 305:
historic abuse present
‘when a collective belief [that children
for the legal system. I
have been abused] takes root in a
suggest that the role
"The risk, the danger, the logical fallacy
group, it is a very powerful force. It
is indeed quite manifest to those who
holds people in a group, who mutually
are in the habit of thinking about such
reinforce each other, and it is quite
matters. It is so easy to derive from a
difficult for professionals, unless they
series of unsatisfactory accusations, if
are very experienced, to stand back
there are enough of them, an accusation
from the weight of that belief system.’
which at least appears satisfactory.
of the media in historic sex scandals is likely to generate false allegations, as do current police ‘trawling’ operations like Operation Yewtree. Also implicated is a therapeutic ‘self-help’ culture, that sees the past as the source of current ills. A
It is so easy to collect from a mass
follow-up article will consider how some recent cases have treated problems of
A troubling feature of the present
of ingredients, not one of which is
limitation.
approach to historic abuse allegations is
sufficient, a totality which will appear to
the deployment of the logical fallacy: ‘if
contain what is missing. That of course
First, I should declare an interest. My
so many people from different parts of
is only another way of saying that when
own view is that stale claims are inimical
the country are saying this, it must be
a person is dealing with a considerable
to justice. I support the old legal maxim
true.’ Exactly the same naïve literalism
mass of facts, in particular if those
that ‘justice delayed is justice denied’; or
was evinced about allegations of Satanic
as Best C.J. said in 1825, ‘long dormant
facts are of such a nature as to invite
ritual abuse in the early 1990s, which
reprobation, nothing is easier than
turned out to be fantasy.
confusion of mind; and, therefore, if such
claims have more cruelty than justice in them.’
charges are to be brought in a mass, it
In this piece, I will not rehearse concerns that have already been voiced by other commentators, about matters such as
In Reed and Lillie, Eady J. was scathing
becomes essential that the method upon
about the logical fallacy:
which guilt is to be ascertained should be stated with punctilious exactness".
the abolition of the ‘similar fact’ rule of
I reject any analysis to the effect that,
evidence in the 1990s: see, for example,
abuse having been alleged in so many
… I must focus upon the essential
Mark Newby and Mark Barlow’s article
instances, it must be a true bill in all
principle. Evidence about what A has
‘Savile, Bryn Estyn and the danger of
or even some cases. Not only is that
done to B may be admissible and probative
modern witch hunts,’ and their 2009
an inherently sloppy approach to any
of what A has done to C. The value of
paper,
serious allegation, but it ignores an
such evidence, however, depends upon
essential part of the Claimants' case in
its independence. If there is a significant
this litigation; namely, that there has
risk of contamination undermining that
Child abuse hysteria
been a "feeding frenzy" leading to a
independence, the relevance and value
We need to get back to basics. As one
grave risk of cross-fertilisation between
may be correspondingly diminished. It
expert pointed out in the landmark
the accounts given. […]
is necessary to be wary in cases where
‘The
Challenges
of
Historic
Allegations’.
22
the barrister
demonstrated,
people
who
have
been in care may be damaged; some may be skilled confabulators. Richard
Webster
has
argued,
victimizer is exploitative, the victim innocent;
As they
may ‘transmute the “normal” hurts of childhood and adolescence into the abnormal hurts of child abuse’. They may begin by deliberate fabrication. Or they may persuade themselves that an incident they have imagined is actually Or they may be persuaded by
4. Victimization often goes unrecognized, even by the victims themselves. As Crown Prosecutor Nazir Afzal is wont to say: ‘They don’t know they’re victims.’ 5. Individuals must be taught to recognize their own, and others’ victimization. This involves a process
a risk of contamination arises (which is
true.
real, as opposed to fanciful) because of
counselors or therapists, who believe
conversion experience, sometimes of a
the investigation process itself.
in ‘repressed trauma’, to ‘recover’
religious intensity.
memories of abuse.
6. Claims of victimization must be
of re-education. It can amount to a
respected (‘believe the victim’).
Trawling and other ills Experience has shown that when a
The act of making an accusation of
7. The term ‘victim’ can be
major scandal breaks, and the media fan
abuse
disempowering. The terms ‘survivor’ or
the flames of public outrage, the police
figure or celebrity can bring a sense of
and others can develop a psychological
psychological satisfaction. It puts the
compulsion to find witnesses to verify
accuser at the centre of much official
Victim advocates start with initially
their suspicions. This is particularly so
attention, concern and sympathy. It may
modest campaigns, addressing clear-
when the media allege the existence of
give them ‘both a raison d’etre and a
cut, egregious examples of exploitation.
something as shocking as a ‘paedophile
feeling of strength and solidarity which
Having gained social acceptance, they
ring’, and hint darkly at official ‘cover-
they did not previously possess.’ Faced
then typically expand the problem’s
ups’.
Thus, the authorities can
with a sympathetic interviewer, they
domain, to include a much wider
inadvertently create the evidence they
may feel impelled to recount more and
range of behaviours, which they deem
need. Where does fact end, and fantasy
more horrors. Webster calls this ‘lying
problematic. Thus, for example, we now
take over?
for love.’
operate expansive definitions of ‘abuse’,
against
a
former
authority
‘recovering’ are preferable.
‘trauma’, As
well
as
trawling
(the
police
and
sexual
victimization.
Ideology of victimhood
The definition of what ‘rape’ means in
soliciting reports of crime, instead of
We should be more critically aware of
criminal law has also been expanded.
the other way about), the police can
the prevailing ideology of victimhood,
engage in ‘targeting’, which involves
which developed in the 1970s, and
Why do some people identify as
a preconceived notion of who may be
dominates current thinking. Its mantra,
victims?
responsible. This leads to ‘confirmation
‘Believe the victim’, sums up the present
A key textbook in the victim ‘recovery’
bias’, in which police only look for that
climate of credulity.
movement is The Courage to Heal
which confirms their hunch. They then
(1st ed., 1988), still recommended by
may pressure suggestible witnesses into
The sociologist Joel Best describes how,
‘survivor’ charities such as NAPAC
telling them what they want to hear.
‘as this ideology became accepted by key
(National Association of People Abused
Journalists avid for scandal may do the
institutions, it created a victim industry
in Childhood). Its authors were a teacher
same. When graphic accounts of abuse
– a set of social arrangements that now
of creative writing and poet, Ellen
get media prominence, they provide a
supports the identification of large
Davis, and her student Laura Bass, who
template for others to adopt. Finally, it
numbers of victims.’
identified as a victim of abuse.
is not uncommon for ‘survivors’ making
ideology has seven component beliefs:
This powerful
allegations to have had prior contact, for
Consisting of a stream of first-person
example via social media sites: another
1. Victimization is widespread;
reminiscences
source of witness contamination.
2. Victimization has lasting
(how much is really ‘creative writing’
consequences;
is difficult to assess), interspersed with
3. It is morally unambiguous: the
the authors’ directive commentary, it is
As the Welsh care homes scandal
of
childhood
abuse
23
the barrister
a troubling document. It lists a series of
that victims suppress all memory of
an event, but denied it. Seven months
traits, which it claims are indicators of
it, and that such memory has to be
later, they were retested. Twenty-six per
historic abuse:
‘recovered,’ for healing to occur.
cent of participants (55) now recalled this fictional event, which previously
Do you find it hard to trust your
A Harvard Professor of Psychology,
they had denied experiencing. As the
intuition?
Richard J McNally, has called the notion
authors say: ‘New information, from
Do you have trouble feeling motivated?
of traumatic psychological amnesia ‘a set
whatever source, can be incorporated
Do you feel you have to be perfect?
of theories in search of a phenomenon.’
into existing memories and can change
In his seminal work, Remembering
the way people remember events.’
This book has had an extraordinary influence. In the USA, it contributed to a rash of false accusations of incest, which in turn led to a rash of lawsuits. Jo Woodiwiss’ research in 2010 at the University of York found that adult women who belatedly identify as victims
Trauma,
he
explains
that
people
who experience something genuinely
A fine mess
traumatic cannot repress the memory.
Such endemic problems with memory,
By contrast, an experience perceived
and how claims are generated in
at the time as merely confusing or
the
unpleasant, may simply be forgotten. In
contribute to legitimate concern about
an amicus brief filed in 2005, he wrote:
historic allegations: how to reliably filter
present
scandal-ridden
climate,
out false ones, and identify genuine The notion that traumatic events can
ones? As Lord Pearce said, ‘with every
be repressed and later recovered is
day that passes the memory becomes
the most pernicious bit of folklore ever
fainter and the imagination becomes
According to Woodiwiss:
to infect psychology and psychiatry. It
more active.’ The problems are acute.
“Among the symptoms on which they
“recovered memory therapy” -- the
In some instances, an accused may be
worst catastrophe to befall the mental
fortunate in locating contemporaneous
health field since the lobotomy era.
documents or eyewitnesses to counter
of child sexual abuse (CSA) lacked concrete memories of abuse, though a majority had read The Courage to Heal.
has provided the theoretical basis for
based their identifications were a lack of sexual desire, being overweight,
allegations, but that is a matter of
and/or stressful family lives – surely
luck.
experiences with which many (abused
False memories
and non-abused) women can identify?
We also know that it can be very easy to create false memories, which may
These victim identities are formed in
be quite vivid and detailed. People
the context of a pervasive therapeutic/
may develop false memories simply by
self-help culture that places greater
learning of a dramatic incident via the
and greater emphasis on looking inward
media. A study published by members of
(and increasingly to the past) for the
the Department of Psychology in Utrecht
possible cause, and solution, for any
University in May 2013 found that subtle
troubles.
misinformation conveyed to normal people could also create false memories.
The implication is that those who are
This follows the same findings in earlier
unhappy or dissatisfied with at least
research by US psychologists such as
some aspect of their lives can find solace
Elizabeth Loftus in the 1970s.
and the promise of a better, brighter future, if only they can be cured of the
In the 2013 study, 249 soldiers
effects of their unremembered abuse.”
deployed
in
interviewed ‘Recovered’ memory Along
with
campaigners,
a
cadre
Afghanistan about
stressors
were in
deployment. After the interview, 213 of
feminist
therapists
were
given
subtle
misinformation
and
about an imaginary but plausible
psychiatrists, The Courage promoted the
event, namely, a harmless missile
idea that sexual abuse in childhood is
attack on their base on New Year’s Eve.
traumatic, and causes lifelong damage;
They were asked if they recalled such
Meanwhile,
complainants
are
encouraged to make allegations in the expectation that they will be believed. The result is a ‘hit or miss’ approach. In my view, it borders on the quixotic to think that we can try historic grievances fairly, decades later. Two wrongs do not make a right. Barbara Hewson, barrister, Lincoln’s Inn
24
the barrister
Violence against women: looking beyond the criminal justice system By Helen Mills, Research Associate at the Centre for Crime and Justice Studies. This article is based on an earlier article the author published on the Centre for Crime and Justice Studies website as part of the Centre’s Justice Matters for Women project.
'
What would you do if he hit you?' asked the midwife at an antenatal check up. I won’t go into what I said exactly, but the midwife picked up on what I didn’t say and she told me;
'You go to the police. Women are not alone.'
Posing this question to all pregnant women seems commendable to me; a necessary acknowledgement that male violence against a partner pre- and post-birth is a common experience and
who turn up with a fast car and gun.
Working at the Centre for Crime and Justice Studies, much of the research myself and my colleagues have been involved in over several years has led us to the conclusion the criminal justice system as it currently stands is far too big, far too costly and far too intrusive. That the criminal justice system is not the solution to the wide range of social problems that currently end up within it [1].Even ‘knowing’ these limitations of
figures
clearly
capture
a
significant amount of harm against
should be neither a taboo or something to keep quiet about.
These
Criminal justice is firmly equated with
women. However the vast majority of
providing a robust response to harm.
harms women experienced are omitted
It has entered common sense that
from these figures. Many incidents will
if we take something seriously, we
not have been recognised as violence
should expect the criminal justice to be
(including by those experiencing it).
involved. But relying on criminal justice
Others will not have fitted a formal crime
to address violence against women is
classification. Even when recognised as
problematic for many reasons, not least
violence by the person at the receiving
of all because most incidents do not
end of it, the complex, usually intimate,
come to the attention of criminal justice
context
agencies. In 2011/12 the police recorded
chronic. It is estimated the actual
the following incidents as involving
number of women in the UK who
women victims:
experience violence in a year is nearer
means
underreporting
is
three million [3], making violence more
the criminal justice system, the midwife’s
prevalent for women:
advice to me is understandable. As a
• 25,008 incidences of violence
friend of mine said, if my partner starts
• 172 homicides
beating the crap out of me I don’t want
• 14,767 rapes
‘than stroke, diabetes and heart disease.’
a social worker, I want to call the people
• 18,780 sexual assaults [2]
[4]
25
the barrister
Starting a conversation
A commitment to downsizing criminal
‘If the criteria for testing their credibility
justice
my
match the characteristics that make them
colleagues, synonymous with stepping
vulnerable in the first place, we have a
There have undoubtedly been important
back protection for women or suggesting
fundamental flaw in our approach.’ [6]
gains in making criminal justice work
is
not
for
myself
and
a return to informal ‘slap on the wrist’
better for women. And anyone seeking
response to this violence. Far from it.
Leaving
and
a difference for women can’t afford to
We take very seriously the unacceptable
potential of criminal justice and the legal
ignore criminal justice or pretend it
levels of violence against women and,
process that underpins it as a response to
doesn’t exist. However, it is important
knowing this, are interested in asking
violence against women, it is necessarily
to be clear about the limitations of
whether our current approaches are
a system which addresses what we
these efforts, and, if we are interested
sufficient. We are interested in joining
might do after an incident has occurred.
in long term strategies to end violence
with others to ask: Are there better ways
Why start here? If the ultimate goal is to
against women, we should acknowledge
of responding to this violence and to the
end violence against women, it makes
criminal justice has a relatively minimal
harms violence against women causes
sense to focus energy and resources on
role to play.
than the response offered by a criminal
preventing violence occurring in the first
justice system?
place. If we approached violence against
I expect such a position is pushing against
women as a public health problem
an open door for those campaigning
By ‘better’ I mean responses that
rather than solely a criminal one, could
around violence against women. This
prioritise aspects that have long been
this rebalance resources and attention
movement has long embedded its work
recognised by campaigners in this field:
in favour of prevention and addressing
in addressing wider structural issues
treatment, survivor support, prevention,
the systemic roots of violence against
such
and protection against future violence.
women? It has been suggested that
power; advocating initiatives including
applying a public health approach to
better sex and relationship education,
that
sexual abuse for example, would enable
community mobilisation, and alleviating
prioritises above any of these things
a greater focus on potential perpetrators,
gender
conviction and punishment of the ‘guilty’.
on victims and their families, as well as
criminal
Determination of guilt is based on a
on what role ourselves, the public, could
such strategies. But it is a sector that
legal process dependant on establishing
play in tackling sexual violence and
has typically stopped short of a critical
individual guilt and a narrow concept
abuse.[7]
perspective about criminal justice.
Undoubtedly this is ineffective in its own
It will, I imagine, be uncontroversial to
In the Coalition’s 2010 strategy to address
terms at securing convictions in cases of
state that if you started from scratch
violence against women and girls, on the
violence against women [5]. In addition,
and wanted to address the problem of
first page, Teresa May states:
this process often doubly victimising
violence against women you wouldn’t
women, criticisms most recently publicly
design something that looks like our
'The causes and consequences of violence
voiced by Keir Starmer, the former
criminal justice system as a solution.
against women and girls are complex.
Director
Prosecution
What is open to interpretation is what
For too long government has focused on
Service. Writing about women victims’
to best do about this: where should
violence against women and girls as a
experiences
criminal justice feature in strategies to
criminal justice issue - dealing with the
address violence against women?
fallout of these terrible crimes.'[8]
Criminal
justice
is
a
process
aside
the
suitability
as
patriarchy,
inequality. justice
is
inequality
By
and
implication,
marginalised
in
of legitimate ‘offenders’ and ‘victims’.
of
the
of
Crown
the
courtroom, he said:
police
and
the
26
the barrister
The government has made little progress
endviolenceagainstwomen.org.uk/
publications/call-to-end-violence-
thinking through the consequences of
[4] Cerise, S. And Dustin, H. (2011) We
against-women-and-girls-strategic-
this acknowledgement of the limits of
need an integrated approach to ending
vision
criminal justice [9]. Thinking through
violence.
[9] For example see End Violence
the practical implications leads to some
Volume 85 Issue 1. Pp14-15
more difficult questions for those who
[5]
want to tackle the harms women face. I
McCandless
also do not underestimate the challenges
w w w. i n f o r m a t i o n i s b e a u t i f u l . n e t /
against women and girls.
of in thinking beyond criminal justice.
visualizations/rape-a-lack-of-conviction/
http://www.endviolenceagainstwomen.
Nor the strength of attachment some
[6] Starmer, K. (2013) Britain’s criminal
org.uk/data/files/Deeds_or_Words_
may feel to the promises of criminal
justice system fails the vulnerable. We
Report.pdf
justice – protection, rehabilitation, and
need a victim’s law. Guardian Comment
And Ingala Smith, K (2013) The Coalition
justice – whatever the current realities
is Free (Monday 3rd February 2014).
Government and broadening the fight to
of criminal justice for women. Rejecting
h t t p : / / w w w. t h e g u a r d i a n . c o m /
end violence against women and girls
criminal justice as the starting point for
commentisfree/2014/feb/03/britain-
beyond the criminal justice system (21st
a conversation about reducing harms
criminal-justice-system-victims-law-
June 2013)
for women is destabling; particularly
public-prosecutions
http://kareningalasmith.
for those working within it. But, there
[7]
And
com/2013/06/21/the-coalition-
are good reasons why those pursuing
Webster, S. (2014) Preventing sexual
government-and-broadening-the-
strategies to downsize criminal justice
abuse as a public health issue. The
fight-to-end-violence-against-women-
and those interested in long term
Conversation (17th January 2014).
and-girls-beyond-the-criminal-justice-
strategies to tackle violence against
http://theconversation.com/preventing-
system/
women could share common ground in
sexual-abuse-is-a-public-health-
looking beyond criminal justice. I hope
issue-21347
others will think this is a conversation
[8] HM Government (2010) Call to end
worth having.
violence
Criminal
As
Justice
illustrated for
McNaughton
against
rape.
Against Women Coalition (2013) Deeds
by
David
or words? Analysis of Westminster
See
http://
Government action to prevent violence
Nicholls,
women
Matters
C.
and
girls:
Strategic vision h t t p s : / / w w w. g o v. u k / g o v e r n m e n t / [1] The Centre for Crime and Justice Studies are currently undertaking a three year initiative in response to this analysis about the limits of criminal justice, called Justice Matters. To read more about this work, visit: http://www. crimeandjustice.org.uk/project/justicematters [2] Office for National Statistics (2013) Crime Statistics, Focus on: Violent Crime and Sexual Offences, 2011/12. [3]
End
Violence
Coalition.
See
Against
Women
http://www.
the barrister
27
Litigation Lawyers Under Fire By David Corker, Partner at Corker Binning
R
e
c
e
n
t
developments should give rise to concern
lawyers
specialising
in
civil and criminal
litigation. Such lawyers of course act for and advise clients embroiled in hostilities either initiated by them or in reaction to them. The parties may be at daggers drawn and the litigious process may only exacerbate their antagonism. Occasionally this poses a particular professional
problem
for
a
lawyer
acting for one of the litigants who may now become embroiled in a complaint by an opposing litigant who alleges professional impropriety. The gist of such an imputation is normally that
clearest malpractice.
defendant, Victor Dahdaleh. The SFO is claiming that Mr Dahdaleh’s former
the lawyer either compromised their
solicitors, Allen and Overy, should pay a
independence or competence in order to please their client, or acted in such
But in the past few months there have
substantial sum to it in relation to the
an unreasonable way so as to cause
been four instances of an opposing party
alleged misconduct in their dealings with
unnecessary expense.
initiating litigation against the lawyers
a prosecution witness. Mr Dahdaleh in
for the other side for the purpose of
turn has made an application against a
obtaining a penal order against them.
US law firm, Akin Gump, for its alleged
The wasted costs jurisdiction allows an
Two concern wasted costs applications,
misconduct during its investigation of
opposing party to apply for an order
one an application to have the solicitors
him which led to his prosecution.
against the other party’s lawyer and is
struck off and the fourth, to have a
designed especially to penalise a lawyer
costs order made on the basis that
who breaches their duty to the court.
the solicitors (not the client) were the
Thus
The courts however have, in a line of
applicant of an unsuccessful application.
become the forum for two applications
authorities, emphasised the exceptional
The two wasted costs applications
in which major law firms are targeted.
and sparing use of such a sanction so
both arise as fallout from the Serious
So the trial judge now has to preside
that it is reserved only for cases of the
Fraud Office’s failed prosecution of a
over satellite litigation which will not
Southwark
Crown
Court
has
28
the barrister
only be as complex as the original
at DLA by BDO; it sought a costs order
trial but will probably be more heated.
based on a contention that DLA (not
Finality seems a distant goal.
its client) was the applicant and so was liable. The possibility that a firm of litigation solicitors, despite acting
The third instance is the proceedings
properly for a client in advancing their
before
Disciplinary
interests, could nonetheless end up
Tribunal (SDT) which were brought
being held liable to pay a huge costs
not by the regulator, the Solicitors
order is something which should be of
Regulation Authority (SRA), but by an
great concern. Fortunately the Court
individual who had been the adversary
quashed the order holding there was no
in proceedings brought by clients of
power to make an order against DLA in
the two defendant solicitors’ firm. The
the absence of a finding of misconduct.
the
Solicitors
solicitors, a partner and assistant, conducted
their
clients’
litigation
and the complainant decided to turn
Presently it is unclear whether these
the tables on these solicitors via the
instances are isolated ‘straws in the
avenue of disciplinary proceedings. He
wind’ whose occurrence is coincidental
succeeded. At the end of a bitterly fought
or whether they are harbingers of an
hearing, the tribunal ruled that both
era where lawyers will be more likely
solicitors had acted dishonestly during
to be drawn into the firing line. It
the litigation and they were struck off.
would be premature to contend on the
This remarkable saga has come to light
basis of these cases there the risks for
as the solicitors appealed the decision
a litigation lawyer have significantly
and a rehearing has been ordered. See
increased. However litigants are clearly
Shaw v Logue [2014] EWHC 5.
thinking more about taking the fire to the opposing lawyer if there appears to be cause and that this may be an effective
The final one is the judgment of the
way of it fully redeeming its reputation.
Admin Court in DLA Piper, the major firm of City solicitors, v BDO, a major firm of accountants, [2013] EWHC 3970. This case relates to whether a solicitor acting for an applicant can be found personally liable to pay the costs of the respondent following the court’s refusal to grant an application to issue a witness summons against the respondent. There was no allegation of misconduct levelled
David Corker, Partner at Corker Binning
the barrister
29
Hurting children: Female Genital Mutilation & custodial restraint By Dexter Dias QC, Garden Court Chambers
W
hy
do
published in February, indicates that in
complained he couldn’t breathe, officers
we
hurt
the UK we have seriously underestimated
kept his body restricted in a hold called
children?
the number of girls under 13 at risk of
the ‘Seated Double Embrace’. They bent
being genitally mutilated. Rather than
him double from the waist and secured
W h i l e
being around 24,000, the analysis by
his head, resulting in his ingesting of
p o p u l a r
Julie Bindel and her team suggests that
vomit and dying of asphyxiation.
platitudinous
65,000 girls are at risk. FGM has been a
was 4 foot 10, seven stone and 15 years
pronouncements reduce children to
crime in the UK since 1985. Notoriously,
old.
precious symbols of our lost innocence,
however, there has not been a single
a visit to almost any of our court
prosecution. What does this say about
Gareth died in April 2004.
complexes will disabuse us of such cosy
our determination to protect children
to understand how this could have
myths
and
He
Trying
happened has been, in the most pressing sense, at the heart of investigations I’ve conducted since 2007, when I became involved in his case as leading counsel for his mother at the inquest into his death.
Prompted by the alarming
pattern of restraint injuries that emerged before
the
coroner,
I
subsequently
conducted research into child restraint at Cambridge University.
Along with
my colleague, Dr Caroline Lanskey of Cambridge’s Institute of Criminology, I will publish the research findings later this year. I should make one thing clear from the outset: every criminal justice system that incarcerates children must consider how to control and contain them should idealism.
It will reveal the extent to
from irreparable damage?
Why do
they
become
volatile.
To
protect
which children are harmed, neglected,
we allow children to be harmed? Take
others; to protect the child. That much
beaten and brutalised. Two recent
Gareth Myatt’s case.
is uncontroversial.
Both inside and
reports highlight this paradox: one on
outside of custody children lose their
the prevalence of physical restraint
temper. Further, as a prison officer told
on detained children and the other on
Inflicting pain on detained children
young girls being genitally mutilated for
me: being hit by a young person can still hurt. That must be obvious to all.
non-medical reasons – the practice of
Gareth Myatt died while being forcibly
Therefore the real issue at stake is what
Female Genital Mutilation (FGM).
restrained by three prison officers at
kind of force the state should authorise
Rainsbrook Secure Training Centre near
for use on the young incarcerated
Rugby.
person. There are different methods of
The report ‘An Unpunished Crime’,
He died because, although he
30
the barrister
control, of which pain-infliction is but
recommended
one. The question is whether it is the
technique
best one.
Secure Training Centres, where some
mean?
of the most vulnerable young people
to exert pressure on children’s joints.
are detained.
Pressure means pain.
The numbers The UK’s use of pain on incarcerated children has been subject to persistent domestic and international criticism, including condemnation from the UN Commission for Human Rights and the Council of Europe’s Human Rights Commissioner. Indeed, the NSPCC stated that ‘cruel and degrading violence’ was being inflicted upon children, resulting in ‘broken arms, noses, wrists and
the
called
extension ‘wrist
of
a
flexion’
to
Thus it comes that
So what does wrist ‘flexion’ actually Prison officers are authorised It is always
wrist flexion is part of Managing and
necessary to spell this out. Indeed the
Minimising Physical Restraint (MMPR),
revelation in a recent report of a young
the new control system that has been
person at Hindley Young Offenders
in the process of being rolled out across the juvenile secure estate.
Institution (near Wigan) suffering a broken bone following restraint serves as a sobering reminder of the dangers of
These developments have been severely criticised in differing ways.
Several
childcare professionals at the Carlile Inquiry sessions in the House of Lords in 2011 expressed concerns about the
hurting young people. The annual restraint statistics were published this January. There were 6,455 incidents of restrictive physical interventions used in the youth secure
continued reliance on pain, as did the
estate in 2012/13, the latest statistical
Office of the Children’s Commissioner
year. This was down by seven per cent
Following highly critical inquest jury
subsequently.
High
from 2009/10 and a reduction of 23 per
verdicts after the deaths of both Gareth
Court stated that the approach of the
cent from 2011/12. While this appears
Myatt and another child Adam Rickwood
Government’s appointed reviewers as
to be good news, one must be cautious
(14 when he died), a restraint review
to when restraint could be justified was
about the appearance of things.
was commissioned by the Government.
‘very much mistaken’ if they believed
The resulting report, broadly accepted
that the UN Convention on the Rights of
The fall in the total number of restraints
by
the Child was irrelevant.
has been materially affected by the
fingers’.
Government,
controversially
Moreover,
the
the barrister
number of people actually coming into
Ultimately,
custody. Unquestionably one of the
disfigures the lives of many of the
Court
positive developments in the criminal
children it is inflicted upon.
Researcher at Harvard and a Visiting
justice system in recent years has been
dents the moral claims of the society
Scholar at Cambridge University.
the significant reduction in the numbers
that authorises it. Hurting children –
chaired and co-authored the BHRC
of detained young people. Compared to
whether by forcible restraint or FGM - is
report to the Parliamentary Inquiry on
2009/10, there are 55 per cent fewer
one of the great self-defeating practices
FGM.
young people coming into the Youth
in human conduct. It has a brutalising
Justice System (from around 3000 to
effect on our communities and makes
Follow:
1500). So what does this mean for the
them more dangerous for all. Because
@DexterDiasQC
rates of restraint?
if we can harm children, we can harm
www.justicebrief.com
anyone. The number of restraint incidents per
pain-inducing
restraint
31
It also
If children are not inviolate,
almost nothing and no one is.
100 young people has increased two per cent compared to the last statistical year.
Therefore should welcome the ongoing
More worryingly, since 2009/10, the
Parliamentary Inquiry into FGM. Indeed
overall rate of restraint used on young
the
people in custody has increased by 45
(BHRC) was determined to contribute to
per cent – a significant increase.
this important initiative. Our report was
Bar
Human
Rights
Committee
delivered to the Home Affairs Committee And on whom is restraint being more
in February, and we anticipate that
frequently used? You are more likely to
Parliament will publish submissions
have coercive force inflicted upon you
shortly.
by the state if you possess any of these
expressed grave concerns about the UK’s
traits: if you are female; if you are young
historic response to FGM. We concluded
(aged 10-14); if you are from a minority
that the UK has been in breach of its
ethnic background.
international law obligations to protect
In brief, however, we have
young women and girls from genital mutilation. Consequently we proposed Infernal calculus
a range of legal and other interventions that would act to create a more effective
The amount of pain we inflict on
anti-mutilation mechanism. But that is
detained children is not just a technical
another article.
question. It’s a moral one. There is an infernal calculus at one end of which sits
Ultimately we must challenge the use of
cruelty and callousness and at the other
pain on children, whether by the state
compassion and care. It is no excuse,
when it effectively assumes the mantle
if we choose pain-inducing solutions, to
of statutory guardians in custody, or
argue that these are difficult questions.
by genetic parents should they seek
They are. But that does not relieve us of
to mutilate their child for ‘traditional’
the duty imposed by the UN Convention
reasons. The human rights of the child
to adopt policies that treat children in a
come first.
way that is consistent with their dignity
comes first. So let us not just deprecate
and worth, and which reinforces rather
the prevalence of such pain.
than violates their human rights.
change it.
The welfare of the child Let’s
Dexter Dias QC practises from Garden Chambers
(London),
is
a He
32
the barrister
International cooperation in criminal cases By David O’Mahony, barrister at 7 Bedford Row who acted on behalf of the prosecution in the R v. Venclovas case.
T Introduction
geographical scope of the criminal
her body in England. There was evidence
he Dewani extradition
law since at least the time of Henry
(from Mr Venclovas’ satellite navigation
has
the
VIII. These statutory expansions were,
system) that Mr Venclovas had driven
of
until recent times (see, for example,
his van from Lithuania to Peterborough
international
Criminal Justice Act 1993), confined to
the night before the abduction and had
cooperation in serious
murder and manslaughter. A series of
driven back shortly afterwards, stopping
criminal cases to the
nineteenth century statutory provisions
in a forest in Poland on the way. Mrs
(see, for example, section 9 Offences
Venclovas’ body was found in the Polish
Against the Person Act 1861) still make
forest some months later.
brought
importance
fore once again.
But extradition is not the only issue
it an offence against English law for a
involved in cases of this type – sometimes
British citizen to commit murder or
Before the body was found, Mr Venclovas
establishing where a crime took place
manslaughter abroad and provide for
was arrested in Lithuania pursuant
can be important. For example, in the
English jurisdiction where a fatal blow
to a European arrest warrant alleging
recent case against Rimas Venclovas, the
was struck on one side of the territorial
abduction and murder. He was returned
victim was abducted from Peterborough
boundary of the State but the death
to the United Kingdom. After the body
by her Lithuanian ex-husband and her
occurred on the other.
was found it was argued that even if it
body was discovered in Poland. The
could be established that Mr Venclovas
case raised the question of whether the
3.
There was, however, thought
deliberately killed his wife, it could not
suspect should be tried in the English
by some to be a lacuna in the law as it
be established (to the criminal standard
courts.
applied to unlawful killing. This lacuna,
of proof) that he did so within England
had it existed, would have been a serious
and Wales. He could, it was argued, have
So how can the courts cope with cross-
one given the free movement of persons
committed the act of murder anywhere
jurisdictional issues of this kind?
permitted by European law and modern
between Peterborough and the Polish
travel.
forest. That is to say, in France, Belgium, Germany or Poland.
1.
English
criminal
law
is
The presumed lacuna arose on the facts
territorial. The common law took the
of a case which, when it reached the
The first response to that argument is
view that it would only punish criminal
Court of Appeal, was reported as: R v.
that in fact there is no relevant lacuna
conduct that was committed within the
Venclovas [2013] EWCA Crim 2182.
in English law. The relevant statutory
geographical territory of England. The
provisions do not appear to have been
common law has adapted to changing
R v. Venclovas [2013] EWCA Crim 2182
used before but section 4 Suppression
times. It will now punish criminal
Mr Venclovas and his former wife
of Terrorism Act 1978 extends the
conduct where the ‘essence’ of the
were Lithuanian citizens who lived in
geographical scope of the English law
conduct occurred within the territorial
Peterborough. After the marriage ended,
of murder and manslaughter to inter
boundaries of the State and where
Mr Venclovas went back to Lithuania;
alia encompass a killing by any person
there are no reasons of comity requiring
his wife and son remained here.
(regardless of citizenship) in any country
that the crime should be punished
which is designated by the Secretary
elsewhere: R v. Smith (Wallace Duncan)
One night Mrs Venclovas went missing.
of State as a party to the European
(No 4) [2004] QB 1418.
Close circuit television showed that
Convention
on
she had been abducted by her former
Terrorism
1977.
husband but there was no trace of her or
through which Mr Venclovas passed had
2.
Statutes
have
extended
the
the All
Suppression the
of
countries
the barrister
33
been so designated. A prosecution using
[(disregarding the provisions of the
to non-convention countries that are
section 4 ordinarily requires the consent
Internationally Protected Persons Act
category 1 or 2 territories under the
of the Attorney General. It states:
1978 [, the Nuclear Material (Offences)
Extradition Act 2003].
Act 1983 [, the United Nations Personnel 4.— Jurisdiction in respect of offences
Act 1997 and the Terrorism Act 2000] 6]
The defendant then argued that the 1978
committed outside United Kingdom.
5)] 4 would not be an offence apart from
Act could not cure the position in his
this section shall not be instituted—
case. He said that if consent was given
…
under the 1978 Act and proceedings
(1) If a person, whether a citizen of the United Kingdom and Colonies or not,
commenced on an indictment for murder
does in a convention country any act
(b) in England and Wales, except by or
as a result, it would be necessary for the
which, if he had done it in a part of the
with the consent of the Attorney General
Crown to establish that the killing in fact
United Kingdom, would have made him
[.] 7
occurred outside the UK and in one of
guilty in that part of the United Kingdom
[...] 7
those territories. This he said the Crown
of— (a) an offence mentioned in [paragraph
could not do to the relevant standard. It (7) For the purposes of this section any
may have been, so the argument ran,
act done—
that the killing occurred in the United
1, 2, 4, 5, 10,] 1 [11B,] 212, 13, 14 or 15 of Schedule 1 to this Act; or
Kingdom. (a)
on board a ship registered in a
convention country, being an act which,
The defendant’s argument relied on the
(b) an offence of attempting to commit
if the ship
contention that the 1978 Act created a
any offence so mentioned,
had been registered in the United
new offence or ‘a new dimension’ to the
he shall, in that part of the United
Kingdom, would have constituted an
offence rather than simply extending
Kingdom, be guilty of the offence or
offence within the jurisdiction of the
the geographical reach of the existing
offences aforesaid of which the act
Admiralty; or
common law offence of murder. This
would have made him guilty if he had done it there.
argument was rejected by the trial (b) on board an aircraft registered in a
judge and the Court of Appeal relying
convention country while the aircraft is
on remarks by Lord Hope in R v. Bow
in flight elsewhere than in or over that
Street Magistrate, ex parte Pinochet (No
country; or
3) [2000] 1 AC 147 at 232.
of the United Kingdom and Colonies
(c) on board a hovercraft registered in a
Conclusion
does outside the United Kingdom and
convention country while the hovercraft
The landmark case against Venclovas
that convention country any act which
is in journey elsewhere than in or over
illustrates the legal issues which can
makes him in that convention country
that country,
arise from modern travel and the
[...] 3 (3) If a person who is a national of a convention country but not a citizen
increasing movement of populations.
guilty of an offence and which, if he had been a citizen of the United Kingdom
shall
that
The little known provision used plugs
and Colonies, would have made him in
convention country; [and subsection
be
treated
as
done
in
an important gap in the geographical
any part of the United Kingdom guilty of
(4) of section 92 of the Civil Aviation
reach of the criminal law as it applies
an offence mentioned in paragraph 1, 2
Act 1982 (definition of 'in flight' or, as
to conduct set out in the Suppression of
or 13 of Schedule 1 to this Act, he shall,
applied to hovercraft, 'in journey') shall
Terrorism Act 1978.
in any part of the United Kingdom, be
apply for the purposes of this subsection
guilty of the offence or offences aforesaid
as it applies for the purposes of that
David O’Mahony is a barrister at 7
of which the act would have made him
section.
Bedford Row who acted on behalf of the prosecution in the R v. Venclovas case.
guilty if he had been such a citizen. [Section 5 gives the Secretary of State …(4) Proceedings for an offence which
power, by order, to extend the 1978 Act
Lease Terminations – Claims, Check Points and Alarm Bells! Dilapidation Disputes are a growing field of work and with the number of high street retail leases alone due to expire over the next 2-years, it shows no sign of abating. But as more and more Experts become involved in the process, what should barristers and solicitors be looking for when reviewing an Expert’s report or advice and what points should be ringing some serious alarm bells? Dilapidations casework is expanding and is becoming more
actually shown by rebuttal evidence to have been wrong in
intrinsically linked to other issues at lease termination. It is
their assumptions. In the second place, how the court is to
increasingly common for cases to originate with an Interim
exercise its discretion is not within the remit of a valuation
Rent Claim against which a Dilapidations Counterclaim is filed
expert. It is appropriate for us to consider and advise on the
and for Expert Valuation Surveyors to receive instructions to
valuation impact of different aspects of how the court may or
deal with the Interim Rent Valuation, to liaise with the Building
may not choose to exercise its discretion, but if we descend
Surveyor/Solicitor over issues surrounding the contractual
into argument on how that discretion should be exercised
dilapidations claim and to provide Diminution Valuation
we step into the role of advocate, not expert, and completely
Advice. However, my own experience over the last few years
undermine our impartiality.
seems to show, somewhat worryingly, that whilst the number of ‘Experts’ involved in these cases is growing, not all of those
Dilapidations – Reinstatement
accepting such instructions have the knowledge or experience
This is a complex area and is impossible to deal with in just
needed to undertake them. So when reviewing your Experts’
one article, but there are two scenarios that commonly arise,
reports, what issues should you look to have been dealt with
which need particular attention to detail and which are worth
and what should give rise to some serious concerns over your
considering here.
client’s selection of Expert? Firstly, most leases require landlord’s consent to make Interim Rent
alterations and to only provide for the landlord to require
The Courts have a considerable discretion under S24D
reinstatement as a provision of such consent. However, such
Landlord & Tenant Act 1954 to award an Interim Rent that is
leases often permit non-structural and internal alterations
reasonable in light of (1) the passing rent, (2) any income (or its
or alterations to a shop front without the need for specific
absence) from subletting areas, (3) the value of the Holding for
consent, meaning that there is no requirement to reinstate
a year-to-year tenancy under S34 LTA 1954 and, increasingly,
such permitted alterations. If this is the position, has your
(4) the current rental value on market terms. Has your Expert
Expert just required reinstatement of all alterations or have
assessed all of these so that legal argument can be informed
they properly differentiated between those that are subject
and can address where the court’s discretion should operate?
to a reinstatement requirement, those that did not require
If there are vacant subletting areas, has he considered the
consent and are not, therefore, subject to any reinstatement
application of an allowance to the valuation of any subletting
requirement and those that did require but did not receive
area to reflect the 99 Bishopsgate Case, particularly if only
consent and therefore constitute a breach?
a year-to-year or in practice quarter-to-quarter continuation tenancy are all that the tenant is able to grant a sublease out of,
Secondly, where alterations over the life of a lease were
making them highly undesirable in the open market?
licenced, it is not uncommon for the licences to alter to contain different reinstatement provisions.
Again, has your Expert
If not, there may be some cause for concern but I have had
properly reflected on which alterations fall under what type of
two cases in the last year that should have rung even more
requirement and treated them accordingly? Where a provision
substantial alarm bells but for some reason didn’t. In both
calls for reinstatement only on reasonably notice, has your
cases my counterpart put forward argument in their reports
Expert properly assessed the time required for reinstatement
as to how and why the court should operate its discretion
to be affected and was sufficient notice given? It still amazes
and award the passing rent, in both cases basing this on an
me how often this situation arises in a claim, with a schedule of
assumption as to the conduct of the tenant. In the first place
dilapidations, and therefore notice of requirement to reinstate,
neither had been involved in the lease renewal negotiations
being served 3-months prior to the Term Date, only for the
and so they had no personal knowledge of the dealings on
supporting paperwork to show that the reinstatement works
which they based their arguments, and in both cases were
are so extensive that they will require 4-5 months to undertake.
Ergo, reasonable notice is shown not to have been given by the
Diminution – Valuations
claimant’s own admission and no liability for reinstatement
Ultimately this is opinion evidence and someone with 25+
arises!
years experience in a small market place may well be correct in their assessment even if their evidence is simply that they
Of more concern, is an increasing tendency for some Building
know the market place and know what someone would pay for
Surveyors to interpret the exception of tenant’s fixtures & fittings
the property. But being right and being credible are not the
from a provision to deliver up all fixtures & fittings, as giving
same thing and in the face of a reasoned valuation in light of
rise to a positive obligation to reinstate all alterations made to
a transparent analysis of transactional evidence the so called
a demise. In the last year alone, I have had three counterpart
‘man-and-boy’ valuation (“I’ve known this area man and boy
experts proceed to Expert Reports on this basis only to have
and know what it’s worth”) may not be seen as having the
their client’s legal team point out the folly of this position. In
same level of credibility. So, has your expert considered all of
one case, where the timetable gave sufficient time, the Expert
the evidence? Have they missed any material transactions that
then tried to change his statement of his client’s intentions
their counterpart has identified? Have they included all of the
from requiring removal to requiring repair for his own use (odd
transactional evidence of which they are aware? Have they
given that they did not replace the items concerned) and then
analysed the transactions in a consistent manner and weighted
alleging that their state of disrepair was such that replacement
them in a rational manner?
was needed to effect repair (unevidenced and unrealistic given that they were being utilised by an occupier 5-days before the
Finally, are their ‘Valuations in Breach’ transparent and do
Term Date). Needless to say, this position did not, ultimately,
they follow how the market place actually behaves? Many
prevail but how was it ever allowed to progress and incur
valuers still undertake valuations in breach by simply knocking
substantial cost without a major alarm bell ringing?
X-pence per square foot off the rental value or adding Y% to the yield with no transactional evidence to support the adjustment.
Diminution - Objectivity
In reality, though, neither prospective tenants nor investors
The assessment of the contractual claim and of supercession
behave in that way. They do not walk into a property, say it
and mitigation is a subjective exercise and will arise from the
looks a bit tatty and just knock a random £0.50 per square
actual actions or intentions of the landlord himself. However,
foot off the rent, add a random 3-months to the rent free
the diminution valuation is not. It is an objective assessment
period or add a random 1.5% to the yield. If there are defects
in the market place in light of all potential purchasers, of which
that a tenant takes a lease subject to, they will assess which
the actual landlord is only one. Has your Expert considered
items affect their occupation or liability, will exclude other
purchase scenarios outside of the landlord’s actual actions?
items from their repairing liability and will assess a rent free
Has he considered, even if he has rejected, alternative uses for
period or reduced rent based on the cost of the extra works the
the premises?
property’s condition will require them to carry out. Investors will look at the impact of that adjustment on their potential
In
assessing
his
values,
has
your
Expert
considered
income stream, and its timing, will assess what works they
market evidence from comparable transactions and has he
need to undertake themselves in order to make a property
weighted them according to relevance and the hierarchy of
lettable and will adjust their purchase price accordingly. They
transactional evidence? Has he applied yields appropriate to
make informed, not random, adjustments that are reasoned
a vacant property rather than investment yields for long term
and transparent. If your valuer hasn’t been equally reasoned
occupations? These may seem like stupid questions but in
and transparent then this should ring some serious alarm bells
the last year alone I have had two counterpart experts assess
as he will be open to criticism for not approaching value in the
rental values by reference to a Nil Uplift of the old passing rent
same way the market does and may find that the judge will
based on the upwards only rent review provision in the old
apply less weight to their evidence as a result.
lease. Really? A new tenant in the open market would base their rental bid on an over-rented valuation and an upwards only rent review provision under a lease that no longer exists? They then went on to apply a yield based on investment sales of leases with 10-years plus remaining, on an assumption that if the tenant had renewed rather than vacated, this would have
John Williams is a Fellow of the RICS, an Associate of the CIArb and a Member of the EWI. He has over 22-years experience of rent and interim rent valuations and over 19-years experience of dilapidations cases, including Diminution Valuations and Neutral Evaluations of broader dilapidation claims.
been the length of lease they would have taken. In fact, the subject unit was vacant and unlet at the Term Date and other
Maple Leaf Property Consultants Ltd
similar units in the vicinity were experiencing voids of 2 years
john.williams@mapleleaf-pc.co.uk
or more. They made no adjustment to this to reflect any void
Tel: 01242 861155 Mob: 07506 727727
period. Someone should have been hearing alarm bells again!
www.mapleleaf-pc.co.uk
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