the barrister issue 51

the barrister

#51

ESSENTIAL READING FOR BARRISTERS

11th January - 4th April 2012 HILARY TERM ISSUE

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Legal Aid Bill and the Family Justice Review.

Tension. the scope of The Legal Aid Sentencing and Punishment of Offenders Bill (“the LASPO Bill”) is “a substantial and far-reaching” piece of proposed legislation. So it was described

by Lord McNally when introducing the Second Reading in the House of Lords on 21st November 2011.

“Substantial” – it certainly is, running currently to some 137 clauses and 23 schedules.

And “far-reaching”? – Undoubtedly, given that it contains brutal reform of the provision of legal aid in a range of civil and family cases, affecting (on the Government’s own estimates) approximately 500,000 people. Of most concern to those who work in the field of family justice, the LASPO Bill contains controversial provisions to remove from

legal aid the vast majority of cases concerning family breakdown.

It is predicted that some 54,000 cases will be removed from the scope of family legal aid per year.

It is assessed (per Justrights) that 68,000 children and young people will be affected by the legal aid proposals.

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ISSN 1468-926X

Features Legacy 3 Bingham’s An appreciation of the life and work of Lord Bingham of Cornhill KG PC

By Phillip Taylor MBE, Barrister, Richmond Green Chambers trial: too 10 Summary summary?

The drive for speedy summary justice means that magistrates’ courts are expected to be increasingly reluctant to grant adjournments.

By Peter Hungerford-Welch, Assistant Dean (Professional Programmes) at The City Law School, City University London

Stephen Cobb QC Chairman of the FLBA

In outlining the Bill’s key provisions

p.6

Problem With Lawyers 14 The The European Union is currently engaged in considering how procedural safeguards for suspects in criminal proceedings can be enhanced.

It is a long time coming.

Young adults, maturity and sentencing The Court of Appeal’s decision in October 2011 to uphold the majority of sentences for the rioters reflected the fact that the context of public disorder was considered a hugely aggravating factor. Lord Judge defended the decision stating that the level of lawlessness required severe sentences “to provide both punishment and deterrence”.

He went on to differentiate between the approach taken towards these young adults (the majority were aged between 18 and 25) and the approach adopted for juveniles, “none of these appeals involves children or young offenders (where different sentencing considerations arise).....the actions were deliberate, and each knew exactly what he (and in one case, she) was doing.”

However, before sentencers heed the green light to impose harsher penalties on those

Est. 1999

still queuing up at the Crown Court, it is worth noting the new Sentencing Council guideline on burglary offences, published only a week earlier than the riot appeal judgements, included the mitigating factor of ‘age and/or lack of maturity’ where it affects the responsibility of the offender.

This means that, just as context of wider criminality should be considered, so too should the individual offenders’ age and maturity. This has clear relevance for the young adults caught up in the summer of public disorder.

A substantial body of research evidence shows that young people are not fully mature until their mid-20s. This is particularly evident in the areas p.8 of judgment, self control, resisting

By Jodie Blackstock, Barrister, Director of Criminal and EU Justice Policy JUSTICE

News 20

Bar council calls on house of lords to listen to warnings on legal aid cuts

21

Soldiers and law students prepare for international crisis

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03

Bingham’s Legacy An appreciation of the life and work of Lord Bingham of Cornhill KG PC

By Phillip Taylor MBE, Richmond Green Chambers

L

ord Bingham was the first judge to be appointed a Knight of the Garter in 2005 and it was a fitting tribute to one of our finest modern judges. This article reviews the life and work of Thomas Bingham who has rightly been considered a towering figure in the Law (according to “The Guardian” newspaper) and the greatest judge of the age: a description which this appreciation, written on the first anniversary of his death on 11th September 2010, will aim to justify from his work and writings.

He was the first person in history to be the Master of the Rolls (in charge of civil process), and then the Lord Chief Justice (in charge of the criminal process), and as a Senior Law Lord (in charge of the final appellate court) recording some enduring judgments throughout this period in legal history. One notable success was his dexterity in steering the highest court towards its transition from the Appellate Committee of the House of Lords to our new Supreme Court.

Thomas Henry Bingham was born on 13th October 1933 and raised in Reigate, Surrey. Both his parents practised as doctors. He was educated at Sedbergh (where he was considered the cleverest boy for a century!), Then he went on to take a First in Modern History at Balliol College, Oxford, being awarded the Eldon Scholarship. He topped the Bar exams (winning a Certificate of Honour in the Bar Finals), and winning the Arden Scholarship. He was called to the Bar of Gray’s Inn in 1959, becoming one of its Benchers in 1979.

Bingham joined the chambers of Leslie (later Lord) Scarman, and established a name in both common

law and commercial work. He was appointed Standing Junior Counsel to the Department of the Environment between 1968 and 1972. He took silk in 1972 and sat as a Recorder of the High Court between 1975 and 1980. Lord Denning considered Bingham, with Patrick (now Lord) Neill as one of the foremost advocates of his time. In 1980, Bingham was appointed to the High Court, in the Queen’s Bench Division and as a judge of the Commercial Court, serving there until 1986.

During 1977 and 1978, Bingham led an investigation into the supply of oil to Rhodesia, and between 1991 and 1992 he investigated the supervision of BCCI by the Bank of England, castigating the Bank of England for failing to intervene earlier. Viewed from the judicial standpoint, he exhibited his independence and he supported Sir John Major’s reformist Lord Chancellor, Lord

Mackay,

with

the

relatively

modest attempts to modernise the legal

The Supreme Court Between 2000 and 2008, Bingham was Senior Lord of Appeal in Ordinary, and was the highest-ranking and presiding member of the judicial committee of the House of Lords, after the position of Lord Chancellor. The enactment of the Human Rights Act in 1998 established some 100 cases during his term. It has been rightly said that he left an enduring mark in human rights law with what has been described as “classic judgments of pellucid prose that revealed an unrivalled breadth of learning (again from ‘The Guardian’).” Bingham will be remembered for steering the law lords towards a Supreme Court although there were quite a few waverers! And as the chief catalyst, who, once the Labour Government’s intention was clear, he advanced the cause more than any other individual in the belief that the judiciary should be visibly separate from the legislature, and the Supreme Court took shape from the Middlesex Guildhall.

Another precedent was set.

profession at that time.

Bingham was a Lord Justice of Appeal from 1982 to 1992, and he then became Master of the Rolls from 1992 to 1996 during which time he supported the incorporation of the European Convention of Human Rights into English Law. Then, he was appointed Lord Chief Justice in 1996, to the surprise of some, even though he had little experience of criminal law and it was a post he held until 2000. During those years he called cannabis law stupid, sought safe houses for paedophiles and the abolition of mandatory life sentences for those convicted of murder. During this time, he heard civil cases as well as criminal appeals and even occasionally sat in the Crown Court. And to my mind he was always his own man throughout!

Bingham’s Works Bingham wrote a number of fascinating books which started life as lectures, including ‘The Business of Judging’ (2000) and ‘Lives of the Law’ (2011not a good title). However, his most memorable work for us will be ‘The Rule of Law’ which it has been suggested by many commentators will define the rule of law for a century! Some years before the book itself emerged, in November 2006, Bingham delivered an academic paper which became his book ‘The Rule of Law’, although the original lecture was largely ignored by the press at the time.

Before Bingham’s views were aired, "the rule of law" meant generally what Professor A V Dicey (and jurisprudence

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students) had decided the phrase conveyed about law in four words.

Bingham's definition of this muchused term is both the authoritative and orthodox view and will probably remain so for the foreseeable future.

‘The Rule of Law’ is now defined as follows: "that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts."

Great! It’s always useful to have a new definition for a new decade, and Bingham does not disappoint! He builds upon his definition with eight principles which are worth identifying for those unfamiliar with his concepts: 1.

"The law must be accessible and so far as possible intelligible, clear and predictable". As he explains, this is a restraint on judicial activism. "It is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way."

2.

"Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion". This does not mean that judges are automatons lacking the ability to take decisions in individual cases. But any discretion granted by law must not be exercised merely in an arbitrary fashion.

3.

"The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation". Equality before the law is rightly seen as a cornerstone of the constitution, though it did not deter the last Labour government from passing legislation in 2001 under which the only terrorist suspects who could be detained

indefinitely were foreigners.

4.

Bingham's 4th principle has been moved from the 6th place it held in his lecture. It’s that "ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably". And so this is a fundamental and long-standing principle of public law, and the basis of judicial review.

5.

"The law must afford adequate protection of fundamental human rights". In what may be seen as an attack from the grave on critics of the European convention within the current government, he demands to know which of the convention rights they would discard. "Would you rather live in a country in which these rights were not protected by law?" he asks sharply.

will be much more contained in his judgments and selected essays which Oxford University Press have now published. As we celebrate the 800th anniversary of Magna Carta in three years’ time, so from its beginnings until Bingham’s statements of today, ‘the rule of law’ remains the bedrock of how we do things, and it’s not to be blithely summed up (as Mr Gearty unfortunately did in ‘The Observer’) as reading “like the transcript of a parlour game played by a particularly precocious set of undergraduates". Bingham’s legacy is much more than that as we have seen, and he remains greatly missed.

6.

The state must provide a way of "resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve". As Bingham recognises, this is more of an aspiration than an assessment of the current position.

7.

"Adjudicative procedures provided by the state should be fair".

Bingham’s use of somewhat ponderous language is designed to cover not only criminal trials but also civil hearings and administrative decisions.

8.

"The rule of law requires compliance by the state with its obligations in international law as in national law". There are those who would argue the opposite. But stating this principle gives Bingham the opportunity to restate his view that Britain's invasion of Iraq in 2003 was unlawful (he was critical of Blair and the then Attorney General), a view he was careful not to express in the lecture he delivered while still a judge!

Bingham’s legacy will not just be about these 8 well-structured principles, it

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

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on family legal aid to the Upper House, the Minister sought to re-assure its members that “the vast majority of support for children will be unaffected by our changes”, and further that “in relation to women’s access to legal aid, we are again prioritising those most at risk of harm, retaining legal aid for private law cases involving domestic violence”.

However, when probing the detail lying beneath these headlines (as, it was re-assuring to see, many of the Peers who addressed the House did), these re-assurances offered by the Minister look rather less convincing. p.1

Tension The LASPO Bill follows a consultation process, which was launched a year ago. Even by that time, the Family Justice Review (“FJR”) - an independent panel set up as an inter-departmental initiative with cross-party support – had been, for some months, examining the family justice system in England and Wales.

Unsurprisingly, many working in the family justice system (including the FLBA and the Bar Council) proposed that reform of legal aid in family cases should await the outcome of the FJR report. This plea was ignored. Just as the LASPO Bill passed through the House of Commons largely unamended (certainly in relation to legal aid provision for family cases) the final Report of the Family Justice Review (“FJR”) was published. While the Government has sought to portray that the FJR “complements” the legal aid reforms, the reality is that in many respects, these two reforming initiatives are in considerable tension with one another.

While recognising that the Government has to make tough economic decisions, perhaps the greatest for a generation, it cannot be right to do so by removing legal aid provision from the most vulnerable in our society. Please don’t accuse me of ‘Nimby-ism’. These proposals attracted virtually no support when they were consulted upon. Less than 3% of the 5,000 respondents to the Government’s consultation supported these plans.

And the Government rationalizes that overwhelming reaction by declaring itself satisfied that: “Although a significant majority of responses disagreed with the proposals, the Government remains convinced that reform is necessary to avoid unnecessary litigation, reduce the cost of legal aid and deliver better overall value for money.” (Annex B, para.3: The Government Response: CM8072).

Child protection The Government’s apparent perception that litigation in family breakdown cases

is “unnecessary” shows a disheartening lack of understanding of the work of the family court, and the role it plays in protecting the vulnerable. Little, if any, recognition is given in the Government’s lengthy documentation generated in its legal aid reform initiative to the fact that large numbers of cases of family breakdown (‘private law cases’) involve child protection issues. The FJR did recognise this, reporting that: “Serious child protection concerns are raised, or come to light, in a significant proportion of private law cases. Where there are concerns for the child’s safety or for a vulnerable adult swift and decisive action must be taken to protect them” (emphasis added). Many of these cases will now come before the court with the parties unrepresented.

Child protection cases cannot (or should not) be mediated. They need robust safeguarding measures. Yet the future legal aid regime will see many litigants self-representing in these difficult cases.

And as if the subject of the dispute was not difficult enough, it has to be recognized that in the field of family law litigation perhaps higher than average numbers of parties have significant vulnerabilities.

Mental illness, for instance, is well-known to be closely associated with relationship breakdown.

The NSPCC’s recently published report ‘All Babies Count’ [November 2011] underlines this point; it revealed that just under 20,000 babies (under a year old) are living with a parent who has taken class A drugs in the last year, nearly 100,000 babies (under a year old) live with a parent who is a problem drinker, nearly 150,000 babies (under a year old) live with a parent with a common mental health problem. What happens when family breakdown occurs in the households of these babies? Will the cases be suitable for mediation? These cases need independent scrutiny and effective safeguarding measures; the courts will need help. But absent legal aid, there will not only be no lawyers on hand to assist the court, there will be no facility for procuring drink/drug testing analysis, mental health reports, or even DNA testing.

“Scandalous delays” In addressing its objectives, the FJR has focused on family justice ‘systems’, as well as substantive law, in the area of family breakdown. One of its key objectives was to address the fact that “delays in determining the outcome of court applications should be kept to a minimum”; delay was, understandably, seen as a ‘weakness’.

The FJR panel was outspoken in its interim report (March 2011) when

describing the ‘shocking’ delays in the family justice system; they were “little short of scandalous”. The delays affect all types of family dispute. The fact that a child in care is now expected to wait 61 weeks for a decision as to his/her future is attributable in significant respects in some areas of the country, to a range of reasons including the pressure on the court lists and the relative unavailability of court rooms and judge time.

In its interim report (March 2011 §2.47) the FJR panel observed that “Proposed changes to legal aid, should they go ahead, will mean more people choosing to represent themselves as litigants in person. This complexity will, as a result, become an increasingly important weakness” in the delivery of outcomes for families (my emphasis).

The success of the Government’s legal aid reform proposals depend very significantly on its assessment that large numbers of cases of family breakdown will be siphoned away from the court system and into mediation. Even on the Government’s own figures, the number of mediations is not likely to be great.

And many mediators have expressed their clear view that mediation is only truly effective in matrimonial and family breakdown cases if conducted under the shadow of the law, and supported by robust independent legal advice. So if mediation fails to capture and resolve large numbers of problems associated with family breakdown, these couples are going either to resort to self-help out of the court (with untold social and economic cost) or self-help in the court.

It is easy to predict that the influx of self-representing litigants in the family courts is going to cause havoc to the proper and speedy administration of family justice.

The Government knows this. They were so advised by very many professional bodies who responded to the legal aid consultation, including, notably, the judiciary. And if these submissions were discarded as generated by a form of selfinterest, surely the Ministry of Justice’s own literature review (conducted by Kim Williams) could not so easily be put on one side. The MoJ paper (published in June 2011) revealed, in summary, that cases involving ‘active’ litigants in person (i.e. litigants who play a part in proceedings as opposed to those who do not) lead to lower prospects of settlement, poorer case outcomes, and longer delays.

The House of Commons Justice Committee reinforced this point. In their report, on the “Operation of the Family Courts”, they recognized that the family courts will see an increase in litigants in

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person following reforms to the legal aid system, adding – notably and explicitly that “We are not convinced the Ministry of Justice has fully appreciated the impact on court resources of many more unrepresented parties”.

As part of the wider legal aid ‘reform’ programme, and in parallel with the LASPO Bill, the Community Legal Services (Funding)(Amendment No.2) Order 2011 has been passed.

Notwithstanding an attempt by the opposition shadow Minister Lord Bach to have the Order annulled at the end of October, the Order stands. It has the effect of introducing 10% cuts to the fixed Family Advocacy Scheme rates for solicitors and the Bar with effect from 1st February 2012. These cuts are made to fees which have not been increased in real terms for over 10 years. Doubtless, the Government feels that it can justify this on the basis – as referred to above – that private law cases are essentially “unnecessary”; but the lawyers practicing in the field of family law are in the view of the FJR not a disposable group but a valuable commodity. The FJR explicitly acknowledged that “lawyers play an important role in ensuring the speedy resolution of cases, in supporting

families to negotiate settlements and narrowing issues where matters are contested” - characteristics of our work which receive no acknowledgement, let alone recognition in any of the lengthy Government documents generated in its discussion of legal aid. The FJR further acknowledges that “the supply of properly qualified family lawyers is vital to the protection of children”. That ‘vital’ service will ebb away. I fear that women and BME practitioners, who rely more heavily on public funds in family law than their male/white counterparts, will suffer first and hardest. It is easy to imagine what this will do to the supply of legal services; advice deserts will emerge – particularly in the regions.

The drain of talent will be irreversible.

The upshot? Access to justice will be harder for those who need it most.

It was something of an understatement for the Justice Committee to forecast (in its 28th June 2011 report on the Operation of the Family Courts) that “Undertaking changes to legal aid and implementing the recommendations of the Family Justice Review at the same time will be difficult.” It went on “The Department must look carefully at the interactions between the two sets of

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proposals, and the cumulative impact on the different elements of the family justice system. The Department must monitor the situation carefully and intervene quickly if problems emerge…”

We have to hope that the House of Lords anticipates these problems, and amends the Bill in meaningful ways, to avoid the worst of the problems rather than waiting for them to happen.

When Lord McNally rose to close the debate on the LASPO Bill in Second Reading late in the evening of 21st November he said that he expected the Upper House to “use Committee for a useful and productive examination of the Bill”; he added that “we have something like three months of parliamentary time looking at this Bill in its various stages.

I cannot go further on these issues than saying that we will listen, but we will listen to some very serious points that were made in a very serious way.” In the interests of family justice, let us hope so.

Stephen Cobb QC - Head of Chambers Chairman of the Family Law Bar Association 1, Garden Court Temple London EC4 Y 9BJ

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peer pressure and ability to understand consequences of actions. A review of maturity by the University of Birmingham, on behalf of the Transition to Adulthood Alliance, concluded that “development on those areas of the brain concerned with higher cognitive processes and executive functions, including control of impulses and regulation and interpretation of emotions, continues into early adulthood; the human brain is not mature until the early to mid 20s.”1 The researchers go on to explain that maturity is also contextual “how an individual demonstrates maturity, for instance in decisions about whether to engage in particular courses of action, is heavily dependent on the social, economic and cultural context in which the decision is made, and in particular on the ‘moral rules’ that operate in the particular context.” Is it any wonder that many of those convicted for involvement in the riots are young adults? p.1

The evidence also throws into question pervasive assumptions around supposed ‘deterrent’ sentencing. The weight accorded to sentencers’ ability to deter other would-be criminals is naive at best, and at worst it is a gross misreading of the evidence. As the last major government-sponsored review of sentencing, the Halliday Report2 , concluded, there is no empirical evidence for the effectiveness of deterrent sentencing. For young people with developing maturity a potential prison sentence can appear a world away from the immediate pressures of the moment. Interesting the Halliday report recommended the mothballed ‘custody plus’ sentence which would have given offenders supervision and support after release from a short prison sentence. This would have been a smarter approach, focusing resources on cutting high reoffending produced by short prison sentences, and ensuring punishment is accompanied by practical support to move young adults away from crime into responsible adult lives.

The previous government never found the cash to invest in the much-needed

programme and the current government are removing it from the statute book.

More recent sentencing decisions have also attracted criticism including the case of Danielle Corns who, 18 at the time, stole two left-footed trainers during the August riots in Wolverhampton.

She subsequently dumped them in the street yet received a 10 month prison sentence. Although no-one would argue that someone’s maturity is an excuse for illegal behaviour, it is certainly a factor and thus should be accorded due weight in mitigation. Lord Judge himself acknowledges that had those involved been under 18 they would have been treated entirely differently, as distinct sentencing principles apply to children and young people for very good reasons.

of including maturity in the sentencing framework. Experts from the Sentencing Council, the Magistrates’ Associate, the Ministry of Justice and parliament engaged in the debate. John Thornhill, Chair of the Magistrates’ Association, welcomed the inclusion of maturity as a mitigating factor in sentencing guidelines and espoused the need to take all relevant evidence into account.

Panellists also highlighted a poll in which 69% of the public think a person’s emotional and psychological maturity should be taken into account when they are accused of breaking the law. This was rated more important than age, which only 57% of the public thought should be taken into account. Public opinion is clearly not a barrier to reform.

The majority of young adult rioters now facing serious time behind bars are the contemporaries of those heading off to university or into their first proper job.

This raises wider political questions on whether custody should be reserved for those who committed violent acts or caused serious damage. Many of the young people jailed do not pose a threat to the public; alongside appropriate punishment they should be made to make amends, contribute, and repair the harm caused. The Criminal Justice Alliance has argued for much greater use of restorative justice in response to the riots 3. Not only is this hugely popular with victims and communities, it can often get young people to understand the consequences of their actions and take responsibility for the first time. Restorative justice can be particularly effective with young people; in Northern Ireland the reoffending rate for restorative justice was around 38% this compared to 52% for community sentences and 71% for custodial sentences 4. Approaches which cause young people to face up to the harm they’ve caused work with the grain of developing maturity, rather than against it.

As a member of the Transition to Adulthood Alliance, Criminal Justice Alliance has long argued that maturity, not simply chronological age, should be recognised in sentencing. Many young people will find their futures blighted by the acts of stupidity or opportunism they committed this summer. For many, a long custodial sentence will make it difficult to ever get back on track.

At a recently held Criminal Justice Alliance event in parliament interested parties gathered to explore the issue

Vicki Helyar-Cardwell, Director of the Criminal Justice Alliance www.criminaljusticealliance.org 1 University of Birmingham (2011) Maturity, young adults and criminal justice: A literature review, http:// w w w. t 2 a . o r g . u k / w p - c o n t e n t / uploads/2011/09/BirminghamUniversity-Maturity-final-literaturereview-report.pdf 2 The Halliday Report (2001), 'Making Punishments Work: A Review of the Sentencing Framework for England & Wales' http://webarchive. nationalarchives.gov.uk/+/http://www. homeoffice.gov.uk/documents/hallidayreport-sppu/ 3 Criminal Justice Alliance (July 2011), Restorative Justice: Time for Action.

4 Gibbs, P. And Jacobson, J. (2009) Making amends: Restorative youth justice in Northern Ireland.

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Summary trial: too summary?

The drive for speedy summary justice means that magistrates’ courts are expected to be increasingly reluctant to grant adjournments. For example, in Balogun v DPP [2010] EWHC 799 (Admin), the court reiterated that requests for adjournments should be submitted to ‘rigorous scrutiny’

By Peter Hungerford-Welch, Assistant Dean (Professional Programmes) at The City Law School, City University London

O

n 21 July 2006, the government published Delivering Simple Speedy, Summary Justice (Department for Constitutional Affairs, 2006), which set out plans to improve the speed and effectiveness of the magistrates’ court system. Lord Falconer, then Secretary of State for Constitutional Affairs and Lord Chancellor, wrote in the foreword that the government’s vision was to deliver a criminal justice system that deals with cases ‘fairly but as quickly as possible’. This article suggests that, whilst efficiency is in everyone’s interests, according undue priority to haste may have an adverse effect on the fairness of the trial process.

An aspect of speedy summary justice may be seen in a document issued in December 2009, by the then Senior Presiding Judge for England and Wales, entitled Essential Case Management: Applying the Criminal Procedure Rules (Judiciary of England and Wales, 2009).

This emphasises that ‘unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time’. For example, the plea should be taken at the first hearing, or as soon as possible after the first hearing. The guidance goes on to point out that this obligation ‘does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid’. I would argue that defence advocates may have to take a robust approach in resisting demands for a plea to be entered where, for example, the defence have insufficient information about the nature of the prosecution case and so it is not possible to give proper advice on plea. Moreover, unrepresented defendants should not be pressurised into entering a plea without careful thought as to the consequences of pleading guilty.

The guidance goes on to say that, where the accused pleads guilty, the court should, unless committing for sentence, pass sentence on the same day if at all possible (perhaps using a pre-sentence report prepared for earlier proceedings or a ‘fast delivery’ report prepared the same day). However, care needs to be taken here too, as it is important that the court is in possession of sufficient (and up-to-date) information, both about the offence and about the offender, to enable it to pass the most appropriate sentence.

The drive for speedy summary justice means that magistrates’ courts are expected to be increasingly reluctant to grant adjournments. For example, in Balogun v DPP [2010] EWHC 799 (Admin), the court reiterated that requests for adjournments should be submitted to ‘rigorous scrutiny’. The delay caused by repeated adjournments, as well as adding to the cost to the taxpayer, can cause problems for the victim, the witnesses and the accused in the present case, not to mention those involved in other cases (the longer one case takes to progress through the system, the less court time can be devoted to other cases). However, the courts should be ready to grant adjournments where there is a good reason why it would be unfair (to either side) for the trial to go ahead even though one of the parties is seeking an adjournment.

One of the central themes of criminal procedure at the moment is the early identification of issues. The December 2009 guidance picks up this theme, saying that that where the accused pleads not guilty, the parties must identify the disputed issues at the outset; if the parties do not supply this information to the court, the court must require them to do so. Such early identification of issues assumes preparation of the

case well in advance of the trial. This is, of course, highly desirable; however, funding arrangements for publiclyfunded criminal defence work (requiring solicitors to take on a high volume of cases in order to make a living) might be regarded as inimical to such early case preparation.

The guidance also says that the ‘live’ evidence at trial must be confined to the issues which have been identified.

As a result, only witnesses ‘who are really needed in relation to genuinely disputed, relevant issues should be required to attend’ and, as the trial itself starts, the court should begin by establishing what disputed issues the parties intend to explore and must ‘ensure that “live” evidence, questions, and submissions are strictly directed to the relevant disputed issues’. This approach is reflected in the current version of rule 3.10 of the Criminal Procedure Rules, which provides that the court ‘may limit the examination, cross-examination or re-examination of a witness, and the duration of any stage of the hearing’. It is likely that defence advocates will be called upon to justify lines of questioning to a greater extent than has previously been the case. Whilst fishing expeditions are best avoided, some speculative questioning by the defence may well be necessary in order to probe properly the evidence being given by prosecution witnesses.

This interventionist approach is supported by a new, five-page, case management form (available from the Ministry of Justice website) to be completed by the parties in Magistrates’ court cases to supply detailed information about the case. The form includes a series of very detailed questions to be answered by the defence, aimed at identifying what is agreed and what is in dispute.

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The prosecutor has to list all the witnesses whom the prosecution intend to call. For each witness, the defence have to indicate whether their evidence can be read to the court, and if not, what disputed issue makes it necessary for the witness to give evidence in person.

The court then has to indicate whether or not the attendance of that witness is ‘justified’. The form does not say what happens if the court takes the view that the attendance of the witness is not justified but that person is nonetheless called to testify because the defence do not consent to the statement of the witness being read under s 9 of the Criminal Justice Act 1967. Presumably, however, there could be ramifications in any costs order made against the defendant (under the Prosecution of Offences Act 1985, s 18) if he is found guilty. I would argue that that the defence should rarely be penalised for exercising their right to test the prosecution evidence through crossexamination.

It should be borne in mind that, under the Criminal Procedure and Investigations Act 1996, s 6 (CPIA), defence statements (summarising the defence case) are not compulsory for summary trials. However, the detailed questions which have to be answered in the case management form effectively require the defence to provide much of the information that would be required in a defence statement, as set out in s 6A of the CPIA, effectively undermining the exclusion of summary trial from the mandatory defence statement regime which applies in the Crown Court.

Care must be taken when completing the form, as the contents can be used as evidence against the accused (as in Firth v Epping Magistrates’ Court [2011] EWHC 388 (Admin), where an assertion in a case progression form that the accused was acting in selfdefence was successfully relied upon by the prosecution as an admission that the accused was the assailant).

The form also contains a reminder of the fact that, whether or not the defendant supplies a defence statement, he must (under the CPIA, s 6C) give a notice indicating whether he intends to call defence witnesses and, if so, must identify them. This allows the Crown Prosecution Service to check whether any of the proposed defence witnesses have relevant previous convictions, but also (and more controversially)

could enable the police to interview the proposed defence witnesses, with the concomitant risk of pressure being brought to bear on them not to testify or to change their story.

Another manifestation of the drive for early identification of issues is to be found in the willingness of the courts to allow the prosecution to re-open their case to make good deficiencies identified in a submission of no case to answer (rather than acquitting the defendant on the basis of a successful submission).

For example, in R (CPS) v Norwich Magistrates' Court [2011] EWHC 82 (Admin), the prosecution opened the case (a charge of assault) by stating that identification was not in dispute (the section of the case management form completed by the defence raised the issue of self-defence); at the close of the prosecution case, the defence made a submission of no case based on the lack of adequate identification. The prosecution sought to call additional evidence, but the magistrates refused to allow this. Richards LJ said that if the defence were going to take a positive point on identification, it was incumbent on them ‘to flag the point at an early stage, not to wait until the close of the prosecution case before raising it for the first time in a submission of no case’. His Lordship concluded, that the decision to refuse the prosecution application to re-open ‘ran counter to the overriding objective of the Criminal Procedure Rules’. This decision is understandable on the facts of the case but care must be taken, when requiring the co-operation of the defendant, not to dilute the burden of proof.

The desire for speedy justice is also seen in the draft protocol on disclosure in magistrates’ courts, issued in May 2006 (Department for Constitutional Affairs, 2006b). Dealing with an earlier version of Part 21 of the Criminal Procedure Rules (defence entitlement to advance information about the prosecution case), para 1.4 says that, where the material is served on the day of the hearing, ‘defence advocates should, save in exceptional circumstances, expect to be ready to go through that material with the defendant and advise ... there and then without the need for an adjournment. If necessary, cases can be put back in the list to allow the defence sufficient time to consider any material provided’. Similarly, on paragraph 57 of the A-G’s Guidelines

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on Disclosure, (defence entitlement to copies of the witness statements of the witnesses to be called by the Crown), paragraph 2.2 of the protocol says that, ‘late provision of such evidence should not automatically result in a trial being adjourned ... In the majority of cases, a competent advocate will be able to deal with the material then and there by the court allowing time before the trial commences, or even during the course of the trial’. It should be noted, however, that, going through the material there and then may simply not be practicable in a case of any complexity or where the material is voluminous. In such cases, adjournments may be necessary.

In Visvaratnam v Brent Magistrates Court [2009] EWHC 3017 (Admin), Openshaw J said that an ‘improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the magistrates' court will bring about great benefits to victims and to witnesses and huge savings in time and money’. This is clearly right, as excessive delay is harmful to everyone involved in a criminal case.

Not only do victims have to wait longer for justice, but also defendants have to wait longer for trials. However, speed must not be achieved at the expense of the right of the accused to a fair trial, including adequate time in which to prepare the defence case and the right to present that case fully.

Peter Hungerford-Welch is Assistant Dean (Professional Programmes) at The City Law School, City University London.

References Department for Constitutional Affairs (2006), Delivering simple, speedy, summary justice, www.dca.gov.uk/publications/reports_ reviews/delivery-simple-speedy.pdf (accessed 24 October 2011).

Department for Constitutional Affairs (2006b), Protocol for the Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in the Magistrates’ Courts, www.judiciary.gov.uk/ NR/rdonlyres/98DDD823-0F87-406F-A11E95E9DFC0F111/0/mags_courts_disclosure. pdf (accessed 24 October 2011).

Judiciary of England and Wales (2009), Essential Case Management: Applying the Criminal Procedure Rules, http://www. judiciary.gov.uk/Resources/JCO/Documents/ Protocols/applying-crim-procedure-rulesdec-2009.pdf (accessed 24 October 2011).

An earlier version of this article appears in (2011) Criminal Justice Matters, vol 84, pp 10-11.

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European account preservation order under the spotlight

By Joseph Kean, Partner, Dispute Resolution Team, Mundays Solicitors LLP

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vital consideration at the start of any court process is whether the proposed defendant will be able to pay any judgment which the claimant might obtain. Having satisfied yourself that the defendant is “good for the cash”, consideration then turns to whether they may act to avoid payment in some way, by perhaps dissipating or hiding their assets. The position is further complicated when the defendant is resident in a foreign jurisdiction and the claimant will have to enforce the judgment against assets there.| The primary contender for satisfaction of a money judgment is the funds held in the defendant’s bank account. But will those funds be there when judgment is obtained and enforcement attempted?

The European Commission’s proposal To address this question within the EU at least, the European Commission recently proposed a new Regulation introducing a European Account Preservation Order (“EAPO”) to assist with the recovery of debts and damages in cross-border civil and commercial matters. The proposal provides a standardised mechanism by which claimants can, in certain circumstances, obtain an injunction freezing money held by a defendant in accounts across Europe. The order would restrict the account holder’s ability to deal with the funds in the accounts, including making payments and other transfers. Currently the availability of such orders is a matter of domestic procedure, which differs widely throughout European member states. The proposed EAPO would be an alternative to national procedures and in addition to them.

Following a public consultation, the UK Government announced on 31 October 2011 that it has decided not to opt in to the proposal, citing concerns raised in response to the consultation process

(examined below). The Government still intends to participate as far as possible in the final negotiations at EU level in the hope that changes can be agreed which will allow the UK to opt into the proposed Regulation later. Nonetheless, and even if the UK ultimately stays out of the regime, UK companies with bank accounts in other EU Member States or undertaking litigation in European courts will need to take careful note of EAPOs if and when they are adopted.

How will an EAPO work?

Under the proposal, an EAPO will be available to a claimant in civil and commercial matters in disputes having cross-border implications (ie., where the bank accounts sought to be preserved are outside the jurisdiction of the court considering the substantive dispute.

Applications for an EAPO will be made “without notice” to the defendant, allowing the "surprise effect" of the measure to be preserved. It will be available in two different cases: • a “Section1” EAPO, available in two circumstances: o prior to or during substantive proceedings in a Member State (ie, an “interim remedy”); o after a judgment has been obtained in a Member State but not yet declared enforceable in the Member State of enforcement as required.

• a “Section 2” EAPO, available once a judgment has been obtained in a Member State which is directly enforceable in the Member State of enforcement under usual European enforcement principles.

In both cases, an EAPO will be available from either the court hearing the substantive dispute or issuing the substantive judgment, or the court of the jurisdiction in which the bank account to be frozen is located. In the latter case, however, in order to avoid forum-shopping, the effect of the order will be limited to bank accounts held

within that jurisdiction only.

Conditions of Issue A claimant applying for a “section 1” EAPO will need to show that it has a good prospect of winning its case on the substance, i.e. that its claim is prima facie well-founded, and that there is a real risk, if the measure is not granted, that the debtor would remove or dissipate the funds held in its bank accounts, frustrating enforcement.

In addition, the court may require the creditor to provide security to ensure compensation for any loss suffered by the debtor if, for example, the creditor ultimately fails on the substantive claim.

The conditions of issue of a “section 2” EAPO are far less stringent. There is no need to show a risk of dissipation of assets and no security is necessary.

In fact, the only condition is that the claimant has obtained an enforceable judgment in one EU Member State that it wishes to enforce in another. Once issued, EAPOs will be automatically recognised and enforced in another other Member State without any special procedure being required, and a defendant’s right to challenge the order is largely restricted to alleging that the conditions for issue were not properly met. The defendant’s only alternative is to pay a security deposit in the amount of the EAPO, which would then be lifted.

Obtaining information on the debtor’s account In both cases the application for an EAPO must be made on a prescribed form and include full details of the defendant and the accounts to be frozen. Given the difficulties the claimant may have obtaining information about its debtor's account(s), the proposed Regulation requires Member States to provide for a mechanism facilitating that task, either by obliging all banks in their territory to disclose whether the debtor has an account with them or by granting their enforcement authorities access to such

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information held by public authorities.

Data protection considerations limit personal information exchanged under this provision to that necessary for enforcing and implementing the order.

How is an EAPO enforced?

An EAPO will be served directly on the bank holding the account that is to be frozen, which must immediately block the amount of funds specified in the order. The defendant should be notified immediately after the order has taken effect. Funds in the account over and above the amount frozen by the EAPO remain available to the defendant.

Potential difficulties with the proposal So far so good, you might say, and certainly for a claimant wishing to recover monies owed to it by another European business, the EAPO would provide a welcome additional tool in its enforcement armoury. However, what goes around has a nasty habit of coming around and that same organisation could just as easily find itself on the receiving end of an EAPO issued by the courts of another jurisdiction. The proposal has been widely criticised as being too proclaimant, with “section 2” EAPOs raising particular concern. As there is no need under this provision for a claimant to show that assets are at risk without an order, a defendant who is willing and able to pay the judgment debt may nonetheless find its bank account frozen without notice, with all the potentially serious consequences that may have for trading. In addition, there are a number of other safeguards missing that UK litigants are accustomed to seeing in measures of this type.

Lack of full and frank disclosure Under similar “without notice” procedures in the UK, where the defendant is not present to put its case, the claimant is obliged to make full and frank disclosure to the court of all matters the court should take into account when making its decision, including those which may have an adverse effect on the application. There is no similar obligation here and indeed in most Continental European jurisdictions, parties routinely only have to disclose evidence which supports their case and

on which they rely. Freezing injunctions have hitherto been seen as an unusual and exceptional remedy – under EAPOs they may become more mainstream with potentially damaging effects for businesses on the receiving end.

Lack of security Security, in the form of a crossundertaking for damages, is routinely ordered by English courts making freezing injunctions. While there is power for the court to order security to be provided in the case of “section 1” EAPOs, the amount and conditions are left to domestic law, which differs widely across European jurisdictions. There is a possibility that no security, or only insufficient security, will be available to protect a defendant.

Uncertainty over exempt funds The amount of funds frozen by an EAPO is determined by the court making the order. The law of the Member State enforcing the order may permit certain amounts to be exempt from enforcement, to ensure the livelihood of the defendant and his family or to allow a company to continue its ordinary course of business. However, this varies considerably between EU jurisdictions, making matters potentially uncertain for debtors forced to defend an EAPO in a foreign state.

Impact on banks EAPOs will also impact on banks and other account-holding institutions, who may find themselves having to devote more resources to complying with EAPOs served on them and providing account information to claimants.

Banks have expressed concern at the considerable additional work they may have to carry out should the use of EAPOs become common. Their entitlement to compensation for this work, likely to be a single fixed fee, is left to national law, as is a bank’s liability for failure to comply with an EAPO served on them.

What do you need to do?

As things currently stand, as the UK has opted out of this proposal, EAPOs will not be obtainable in support of claims brought in the UK, nor will they be enforceable against bank accounts

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held in the UK. However, in modern business, commercial organisations maintain financial accounts in many jurisdictions. Businesses with accounts in European Member States or litigating in the courts of other Member States will need to take relevant legal advice on the applicability of EAPOs to their situation, whether claimant or defendant. The proposal is still some way off becoming law, as the European Parliament and Council still need to consider it under the Ordinary Legislative Procedure.

However, it is clear that, if passed as currently drafted, the Regulation would have a considerable impact on recovery of money judgments in European cases.

Links: The proposed EU Regulation The UK Ministry of Justice’s consultation The Government’s statement Parliament, 31 October 2011:

to

By Joseph Kean, Partner, Dispute Resolution Team, Mundays Solicitors LLP 01932 590 500 www.mundays.co.uk joseph.kean@mundays.co.uk About Mundays: Mundays is a leading regional practice which provides quality advice to corporate and private clients.

Established in 1960, Mundays has a diverse client base that includes major international and national companies as well as smaller businesses, individuals and families.

Mundays specialises in Banking, Construction, Corporate & Commercial, Dispute Resolution, Employment, Family, Insolvency, Private Wealth, Property, and a wide variety of industry sectors.

About the author: Joseph, Partner at Mundays LLP, became a solicitor in 1990 and throughout his career practiced in commercial litigation and arbitration, working in a wide variety of industry sectors, including aviation, construction and technology

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The Problem With Lawyers The European Union is currently engaged in considering how procedural safeguards for suspects in criminal proceedings can be enhanced. It is a long time coming.

By Jodie Blackstock, Barrister, Director of Criminal and EU Justice Policy JUSTICE

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hen the framework decision on the European arrest warrant was adopted in 2002, the European Parliament and many NGOs called for corresponding minimum standards for suspects.

Indeed, the European Commission did present a proposal for a framework decision on procedural safeguards which was debated by the member states’ ministers of justice in the Council of the EU. However, it was shelved because the member states could not agree on whether there was a need for activity at EU level and indeed whether there was a legal base.

That changed with the Lisbon Treaty coming into force which explicitly provides under article 82(2) Treaty on the Functioning of the European Union for minimum rules for suspects in order to enhance mutual recognition of judicial decisions and police and judicial cooperation. The Treaty on the European Union further cements the rights of EU citizens by way of article 2 (foundation on respect for human dignity, freedom, democracy, equality, rule of law and human rights) and article 6 (recognition of the EU Charter of Fundamental Rights; accession to the ECHR). The Swedish Presidency of the EU in 2009 saw through the adoption of the Lisbon Treaty and in doing so, dedicated some of its time to the agreement of a Resolution for strengthening procedural safeguards which reignited work in this area. The Resolution provides a step by step approach, one right, in one directive at a time. Whilst this leads to some artificial debate about what is and is not agreed to be an EU standard (for example the right to information about rights: This is currently limited to

national rights since no EU standards are yet in force), there is now an adopted measure on the right to interpretation and translation (due to be implemented in national law by 2013), and the Commission has presented proposals on the right to information and on the right of access to a lawyer which are currently being debated by the Council and Parliament. Forthcoming are directives on vulnerable suspects, legal aid and a green paper on detention.

Until now the UK has been supportive of these measures. After all, there has been little need to improve our standards in comparison to other member states.

The Police and Criminal Evidence Act in England and Wales is probably the most comprehensive set of rules for the conduct of police investigations and prosecutions in Europe. But now we have got to Measure C on the list (the right of access to a lawyer) where one would expect the UK to be the most robust given our adversarial system and presence of lawyers throughout proceedings, suddenly we appear to have got cold feet. As part of the Lisbon Treaty arrangements, the UK, along with Ireland, managed to negotiate an ‘opt in’ protocol to the area of freedom, security and justice (protocol 21). This protocol gives us three months from the presentation of a proposed directive by the Commission to decide whether we will opt in to the instrument. If we do, we can vote in the Council on whether the instrument should be adopted. If we don’t, we can negotiate on the contents of the instrument with a view to opting in a later stage, but we cannot vote and arguably don’t have the same weight in the negotiation process. The UK decided not to opt in to the directive on the right of access to a lawyer.

The protections set out in the measure

The European Commission presented a proposal for a directive which builds upon the ECtHR jurisprudence under article 6 ECHR to provide a set of practical and effective rights.

A substantial body of evidence exists to demonstrate the divergence of protection between member states (in particular see a project we conducted jointly with academic institutions: Effective Criminal Defence in Europe (2010)), not least in relation to the access lawyers have to the police station1.

The Directive would apply from the moment a person is made aware that they are suspected of committing an offence until the conclusion of the final appeal. It would allow the presence of a lawyer at any questioning by the police; at evidence gathering actions by the police, where the national law allows/ requires the presence of the suspect and so long as this would not prejudice the acquisition of evidence; and in any event where a suspect is deprived of liberty.

The content of the right would seek to ensure that access is of a sufficient time and manner that would enable an effective defence, that the lawyer is able to participate by asking questions and raising challenges in the police interview and is even able to inspect detention conditions. The right should ensure confidentiality of conferences and correspondence, waiver should be properly informed and understood by the suspect and derogation should be for compelling reasons only.

So what really does the UK object to in all this? Are we not doing this anyway?

Some light is cast by the Government’s correspondence with the EU Scrutiny Committee, documented in its 36th Report on 6th July 2011: (a) It would require access to a lawyer from the start of questioning and during searches where lawyers are not

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currently present under UK law; (b) The proposal demands presence of a lawyer whereas the UK is increasingly resorting to telephone advice in relation to minor offences; (c) Derogations in the proposal are narrowly drawn and do not allow for current operational reasons to withhold legal communication; (d) Statements made prior to status as a suspect or obtained in breach of a right are deemed to be inadmissible by the proposal.

These concerns ignore the qualifications drafted into the proposal, the actual treatment of these issues in UK law which require fairness to the accused, and the negotiation process which takes place prior to an instrument being adopted in the EU, substantially altering the text in any event. There are many instruments we have opted into which require much improvement prior to adoption, such as the European Investigation Order which afforded virtually no opportunity to refuse a request from another member state for assistance when proposed.

Many of the concerns the UK raises with the Directive have already been addressed in the current draft after three months of scrutiny by the Council.

Not only has the UK not opted in to this measure, but it has co-authored a five member state public statement expressing its concerns with the proposal. This public criticism of the Commission is an unusual step. It has created tension between the EU Institutions which is unhelpful. But it is more concerning that the UK has joined with member states that do not afford the same level of access to a lawyer enjoyed here, particularly in relation to police detention and interview: Ireland, France, Belgium and the Netherlands.

By aligning with these states, the UK has given legitimacy to their resistance to improve defence protection. The Committee for the Prevention of Torture has repeatedly explained how important presence of a lawyer is from the outset of proceedings in ensuring suspects are not ill-treated and that any vulnerabilities are identified, as well as ensuring suspects are properly advised as to what is happening (see CPT Annual

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Report 2011).

Perhaps the most revealing aspect of the statement is its objection to the omission of rules on legal aid in the proposal: in a time of e c o n o m i c and financial constraint these member states argue that the impact of legal advice on public expenditure must be considered.

As the Government pushes ahead with the Legal Aid, Sentencing and Punishment of Offenders Bill, it is clear that the intention is to severely cull spending on lawyers. Clause 12 ominously suggests the expansion of telephone advice in police stations rather than presence of lawyers. It seems the gamble of additional expenditure posed by this measure was too much. This is a real disappointment when the UK is in such a strong position to lead the way in demonstrating the value of lawyers in criminal cases, rather the problems we cause to the exchequer.

Jodie Blackstock Director of Criminal and EU Justice Policy JUSTICE 59 Carter Lane London EC4V 5AQ Tel: 020 7762 6436 Fax 020 7329 5055 www.justice.org.uk 1 Following the case of Salduz v Turkey (2008) 49 EHRR 421 which confirms that suspects must have access to a lawyer

as from the first interrogation by the police where admissions obtained from the suspect are to be used to support a conviction, otherwise this would prejudice the right to a fair trial. The UK Supreme Court confirmed this principle in Cadder v HM Advocate [2010] UKSC 43 with respect to Scotland, as has the Conseil Constitutionnel in France. But Netherlands, Belgium and Ireland have not changed their laws. Other member states allow varying amounts of access to a lawyer and to disclosure of evidence.

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The international expansion of the English Bar Guy Hewetson writes that chambers need to target overseas markets and base themselves in the fast-growing jurisdictions both to capitalise on new opportunities and to hedge against a domestic downturn

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or over a decade the English Bar has been going through a revolution of change. It is the last bastion of the professional services sector to deregulate and with the imminent implementation of the Legal Services Act 2007 there will be greater changes than have ever been experienced in the history of the Bar. This stems largely from the increase in competition at the Commercial Bar and a proposal to provide a greater level of access to justice from the Publicly Funded Bar. Many commentators sincerely hope the latter will bear fruit although one has to remember the planned cuts in publicly funded work. One experienced civil practitioner, Roman Poplawski from 33 Bedford Row, remarked that, since the average member of the public would only rarely need to call on the Bar’s services in his/her lifetime and primarily for criminal and/or family matters, it is ironic that practitioners who want to dedicate their careers to fighting injustice, may themselves now face injustice from relentless government funding cuts and in turn render their ‘calling’ an unaffordable career choice.

There are three types of sets at the Bar. The trailblazers, those waiting to see what other sets are doing, and those who feel they are fine just the way they are and always have been. The latter are undoubtedly going to struggle to compete as the rules of engagement are changing swiftly, coupled with the introduction of direct access and alternative business structures which will come into play at the Bar next year. There are two ways that chambers can respond to the challenges: to become more professional in their management, and to think about overseas opportunities.

The recession, like others before, has been good for the Commercial Bar. Recessions cause an increase in disputes and therefore more work for commercial barristers. Yet, it is also the case that competition has intensified, which has

caused downward pressure on fees.

The Commercial Bar has had to adapt to a rapidly changed - and changing environment.

Many lessons learnt at the Commercial Bar over the last 10 years are now being implemented across other areas of the Bar. Chief among these is the professionalisation of the management of chambers. Many progressive, modernthinking commercial sets have seen the benefits of separating management from the clerks’ room, and then hiring the right senior managers - whether a CEO or a senior clerk or both - to steer chambers strategically through the evolving legal landscape. However the ramifications by not making the right hiring decisions can already be seen.

Gone are the days where one individual could be expected to manage chambers, run the clerks’ room and be out of chambers three or four days a week bringing in new business.

Apart from anything else, it does not make commercial sense. Paying someone a six-figure salary to be a good diary manager is no longer acceptable.

That is not to tarnish all managing clerks with the same brush. There are many excellent clerks, who run excellent ships. However, that is no longer enough. Commercial sets have to become more commercially focused if they are to survive and prosper. The Bar is some 15 to 20 years behind law firms in terms of having to become more commercially savvy and putting the processes and people in place to be more proactive, and successful, in winning new business.

And, just as the commercially focused law firms have based themselves in new markets, so the Bar would be well advised to follow suit. Many commercial sets that receive instructions from international clients have been seeking ways to build on this revenue stream.

Getting close to the clients is good business practice.

Among the pioneers is 20 Essex Street, which has established a fully operated chambers outside the UK within Maxwell Chambers. The set was invited by the Singaporean government to help establish Singapore as a leading centre for international arbitration.

Brian Lee, Joint Senior Clerk, says that this was a deliberate strategy. “Singapore invested in facilities, and promoted itself as a user-friendly environment perfectly suited for international arbitration. The government actively encourages and acknowledges the need for arbitration by the international business community.

For the past two years we have had a barrister working permanently in Maxwell Chambers, with David Lewis being the first and now Simon Milnes.

No longer do lawyers in the region have to wait for London to open to get assistance from those in need of the services of a barrister” He continues: “Singapore is a small, independent, neutral country, with outstanding local lawyers, but also friendly to those from overseas, which makes the city state the natural venue for arbitration for those in Asia and indeed the Pacific region.”

It is also helping to present Singapore as a viable alternative to Hong Kong as a venue for international arbitration.

As Mathew Kesbey, Joint Senior Clerk at 20 Essex Street, notes, “Particularly in the last few years there has been an increasing investment focus in Asia with a surge of foreign investors within the region. Hong Kong has long been recognised as one of the leading arbitration centres in Asia, but with its close proximity to China, the neutrality of Singapore is being seen by some as a more attractive option.

“It is this neutrality and the investment in the infrastructure that was a driving force for us wanting to set up our office in Singapore where we are able to service a long established client base in Asia from our fully staffed office within

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Maxwell Chambers. For many years now 20 Essex Street has been investing in Singapore, which we believe has been pivotal to the success of this venture.

Local lawyers are seeing a significant increase in arbitration disputes and, at the same time, view chambers as complementing their work.”

In a recent speech by the Singapore Minister for Foreign Affairs and Law, Mr K Shanmugam said, “A sound legal infrastructure has to be complemented by an outstanding set of professionals who practice in this field. Arbitration practice in Singapore, in that context, is going from strength to strength, and we are continuing to attract topnotch individuals, both counsel and arbitrators, because we have a very open regime. We now have a very substantial international presence in Singapore.

Eight of the world’s top 10 law firms by revenue have set up offices here.

We currently have over 100 foreign law firms and over 1,000 foreign lawyers, complementing our 800 local law firms and slightly under 4,000 local lawyers.

Our Qualifying Foreign Law Practice (QFLP) scheme has played a role in developing our international arbitration scene. Five out of our six QFLP license holders have set up arbitration practices or expanded existing practices in Singapore since they were awarded their licenses in December 2008. Going forward, we will continue to grow our arbitration sector through calibrated measures.”

The investment is enhancing the chambers’ reputation. They are gaining local knowledge and earning goodwill among local lawyers, which could also reap benefits in the UK. The set is now using this base as a springboard to other places such as Vietnam, Indonesia, Malaysia, Korea, and increasing opportunities in China and Australia.

At the same time, being on the ground the set can greatly assist the Singaporean government in building trust with the wider spectrum of investors.

This was reaffirmed by the Singapore Permanent Secretary for Law, Mr Pang Kin Keong at a recent conference in Ireland where he said, “ Particularly with the rise of India and China, the centre of gravity of global economic activity is gradually shifting to Asia. This

is nothing new but conventional thinking by now, but it bears repeating in the context of a discussion on arbitration in Asia. The IMF predicts that within 5 years, Asia’s economy will be 50% larger than it is today, and that by 2030, the region could become the world’s largest economic area. On the investment front, data from UNCTAD shows that foreign direct investments in Asia in 2010 were up 18% from 2009.”

He continues, “As for Singapore’s legislative framework, the Government monitors closely international developments and solicits constant feedback from stakeholders, to ensure that our laws remain up-to-date and provide the best framework possible for arbitration. Singapore’s experience and circumstances are unique because every country is unique, but I think the criteria critical to establishing a good arbitration venue are applicable to many jurisdictions. To try to sum up in a nutshell, it is essentially about providing an overall environment in which parties can arbitrate efficiently, arbitrate in confidence, and with a high degree of predictability about how things will work.”

Opportunities also lie in another part of the world. In the Middle East, the DIFC has recently opened its doors to a much wider range of litigation cases.

Many believe this is going to lead to an explosion of cases being brought before the court.

Kaashif Basit, a barrister and partner at KBH Kaanuun in Dubai, says, “The Middle East has been, and will remain, an important source of work for the English Bar, particularly in respect of high-value cross-border disputes. The question for the English Bar is whether it wishes to invest in Middle East relationships directly on the ground, or to continue to rely on law firms as a source of instructions.

“Those chambers and barristers who are prepared to invest in direct access to clients in the region would undoubtedly benefit from both high-quality work and attractive fee income.”

So what conclusions can be drawn? If chambers are to compete proactively on an international stage, it is only a matter of time before sets will have to look further than having an annex in a

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foreign jurisdiction.

Again, the comparison with law firms is instructive. Twenty years ago, many leading law firms in the UK, including the magic circle firms, were confident in their business model as the instructions continued to flow in. Then, with the influx of US firms setting up in London and firms further down the rankings list starting to vie for the same work, often at more competitive rates, the top-tier firms realised that a more commercial and proactive approach to how they won business and serviced their client base was the only way to ensure their position in the market.

Being at the top of the chain is only the first step – staying there is quite another matter, as some sets are now starkly realising. The English Bar is universally revered as being the pinnacle in excellence in legal services, and rightly so. The uniqueness of the Bar is its greatest strength, but this should not be the cause of resistance to change.

On the international platform, demand for access to the Bar is set to increase at an exponential rate in the coming years.

Chambers are now more than ever going to be competing against solicitor advocates as they aggressively seek to retain this work in-house.

For the moment at least, some would say the Bar is not as commercially switchedon as it needs to be to make a dominant play on this playing field. However, the visionaries at the Bar, and they are increasing in number, can clearly see that for the Commercial Bar at least, direct access is the platform which will allow the Bar to level the playing field and for chambers to become global businesses.

Guy Hewetson is a founder and partner of Hewetson Shah, a firm of leading legal search and recruitment specialists.

Hewetson Shah offers expert full-service assistance in search and recruitment for the Bar. www.hewetsonshah.com

Hewetson Shah LLP Main: +44 (0)203 008 5595 Direct: +44 (0)203 008 5598 Mobile: +44 (0)7531 674 203

18

the barrister

The changing face of legal services and Chambers’ need to respond.

By Catherine Bailey, Managing Director, Bar Marketing Limited

I

t is a simple fact that a £4bn profit legal market is bound to be attractive to new entrants with low cost operating structures.

These new entrants bring with them existing large loyal customer bases.

The questions we should be asking ourselves are how do we react? Do we work in co-operation?

Do we compete head on? Do we adopt a mixture of both? Or do we firmly stick our collective heads in the sand and hope it all goes away?

The last of these really isn’t an option if you want your chambers to survive these increasingly-competitive times!

The changing landscape According to Professor Stephen Mayson, the impact of these new entrants could be catastrophic with the shift of over £1.5bn from traditional legal practices to them. This would primarily impact the provision of retail legal services, and could bring about the potential demise of over 3,000 law firms. These law firms tend to be multi-disciplinary high street practices. What’s more, these law firms are the Bar’s clients. So what’s the impact on chambers’ and what are they going to do about it?

The market is also likely to see an over-supply of law graduates, some of whom will join the ranks of the new entrants offering a more commoditised version of law, whilst some will follow a more traditional route into law firms the length and breadth of the country.

Others will struggle to find work.

This could present an opportunity for chambers who are considering the hiring of paralegals for high volume, low value work. Effectively chambers would be getting relatively cheap labour and have the ability to provide an end-to end service to the client. For example, it is possible to use paralegals as the front end for Direct Access where there is a lot of preparation work and liaising with members of the public. There is also space in the market for the establishment of paralegal businesses who would then be able to outsource their skills to chambers as and when required.

Simultaneously we will see the increase of legal process outsourcing and offshoring, where firms engage with overseas suppliers to handle cases in order to maintain a low cost base.

Again, this is an option for chambers seeking to establish a ProcureCo or other such ABS style business where they could run the whole supply chain, outsourcing the routine legal processing.

However, this would require a significant understanding of the legal process outsourcing market and a great deal of time management to ensure quality and service standards are maintained.

Client expectations are also evolving more rapidly than before. I must agree with Chris Kenny, Chief Executive of the LSB in his recent address to the Westminster Legal Policy Forum when he spoke about the changing expectations of clients and the legal industries need to meet them. Today’s technologically-savvy consumers expect their lawyers to utilise a mix of faceto-face correspondence, telephone and online advice. As many as 50% of individuals make their initial contact by telephone, many having previously used search engines such as Google to establish an understanding of the chambers and members expertise prior to calling.

The urgency around their services search is also increasing. Chris Owen, Chief Executive of St Philips was correct when he stated some time ago that clients want “a good service at a good price .. and they want that service now”. The world we live in is information based.

People are used to having information at their fingertips and are impatient if it’s not forthcoming. They no longer sit around and wait for information to come to them, they actively go and get it, usually via the internet and peer recommendations.

Another thing to remember is that clients are consumers, and as such behave in the same way. Consumers are much more likely to shop around based on a priority list which includes quality of customer service, recommendation, timeliness and price.

They do not

necessarily make a decision based on price alone, particularly if their matter is one of great importance to them. This is where chambers need to be more proactive in marketing their wares, providing full details of the services they provide.

Disruptive technologies are also driving change within chambers. The advent of social media is changing the way we do business. Chambers need to be much more reactive to the needs of clients. How do those clients want to be communicated with and more importantly, when? What technologies do fee earners need? Do they need to be truly mobile?

It is inevitable that there will be other technologies invented that will require chambers to re-think the way they work, the services they provide to their staff and their engagement with their clients. Chambers need to be keeping an eye on those service industries that are further developed to research which technologies are being used that could be of benefit to them.

Finally, for those involved in publicfunded work, there are likely to be significant changes ahead.

How chambers decide to deal with Legal Aid could be crucial to their success.

Bidding for contracts outright would not be recommended. Having organised numerous ProcureCo events in the last year to look at how chambers could manage these competitive processes, it became evident that bidding for a whole contract alone is not considered to be a sensible option. The tendering process is not an easy one and the requirements for supervision would increase the cost base of chambers to such an extent that benefits of winning the contract would be eroded.

Therefore, tight collaboration with other law firms and providers seems to be the most practical way forward.

The probability of an ‘NHS Direct’-style Legal Aid operation looks increasingly likely. This will undoubtedly provide public sector cost savings for the government in the long-term, but who will run the service, who will be

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given access to Legal Aid and how will it facilitate the needs of the most vulnerable in society?

Many questions currently remain unanswered. However, one thing is clear, chambers need a business and marketing strategy to enable them to survive and thrive.

Changes and impacts We are witnessing structural change in this industry now. The advent of Alternate Business Structures, LLPs and ProcureCos are all possibilities for providers of legal services. However, they are in themselves not a strategy.

They are simply possible structures which may, or may not, be beneficial in the operation of chambers.

Rather than select a structure, chambers need to identify a sustainable strategy and consider an appropriate structure after they have made these initial important decisions. They need to understand the likely direction of the market and be prepared to differentiate based on their real strengths. They need to decide which direction they are heading and how they are going to get there.

What market are they in? What do they want to be in? What is their competitive advantage? What do their clients want?

Chambers must be clear about their real strengths and be prepared to build a strategy around them in order to survive.

Equally they need to acknowledge their weaknesses and determine a strategy to improve them, or to actively avoid that part of the market entirely. They must fully consider what they need to provide for clients who are prepared to pay for their services. That might include the provision of integrated services with other professionals such as accountants, insurers, surveyors and others. It might be as simple as finding a niche close to chambers and then recruiting the relevant Barristers to service that niche, thus building a specialism in that area and marketing the service as experts in this particular field.

Clients’ desire for online legal services also needs to be addressed by chambers.

We are now at a point where the users of web based technologies have exceeded the more traditional clients. This is an opportunity for chambers to match client desire and provide cheaper online

Struggling to make yourself heard?

19

services. It is an example of the need to place clients at the centre of a law firm’s strategy, and to appreciate how technology is an enabler to this strategy.

Chambers directors need to look at how they put the client at the heart of the operation and determine what really “adds value” to the client and the client experience. They need to find ways of achieving this without increasing the cost base to chambers significantly.

We should also not dismiss the possibility of established law firms, new entrants, funders, technology partners or ProcureCos driving joint ventures. In the chambers of the future, there is no one-size-fits-all, but what is clear is that the established and traditional method of providing legal services must change; it must change because new lower-cost entrants will cause it to; it must change because clients demand it; it must change if chambers want to survive and maximise upon the opportunities presented to them within the evolving marketplace.

Sometimes it’s not the piano that needs restoring, it’s the pianist

Let us give you a voice!

Bar Marketing, with over 10 years’ experience working closely with chambers, understands the way you work.

We provide every marketing service: in-house marketing support a fully outsourced service

planning & communications managing press, events & webinars

Add to your marketing skills – not your headcount 0771 434 5072 info@barmarketing.co.uk barmarketing.co.uk

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news round up

20

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Bar council calls on house of lords to listen to warnings on legal aid cuts The Bar Council, which represents barristers in England and Wales wrote to Peers to voice its concerns around the Legal Aid, Sentencing and Punishment of Offenders Bill The Bar Council addressed the All-Party Parliamentary Group for Legal and Constitutional Affairs, who met to consider the Bill. The meeting was chaired by Lord Hunt of Wirral and addressed by Stephen Cobb QC, Chairman of the Family Law Bar Association and of the Bar Council’s working group on the Bill.

Peter Lodder QC, Chairman of the Bar Council, said: “Despite the warnings of the Bar Council and other concerned organisations, the House of Commons has done little to change the Legal Aid, Sentencing and Punishment of Offenders Bill.

“In the Lords, we will maintain our campaign to highlight the devastating effect that this Bill will have. A key example is the removal of private family law cases, almost in their entirety, from the scope of legal aid. Distressed parents will be left abandoned and will be forced to represent themselves. Courts will become clogged and far from saving money, delays will be greater and both societal and fiscal costs will increase.

“Other proposals also hit the most vulnerable the hardest. Many with valid claims in clinical negligence will be unable to gain legal redress for wrongs caused by others, while those facing problems with debt and benefits will be unable to access vital legal advice and assistance.

“The House of Lords has an important constitutional duty as a revising chamber.

We hope that Peers on all sides will persuade the Government to recognise the real consequences of these drastic proposals, so that a realistic Bill can be returned to the Commons. The public interest and the interests of justice demand no less.”

Solicitor general speaks on the value of Justice Edward Garnier QC MP, Solicitor General for England, Wales and Northern Ireland has stated that the current economic climate must not be allowed to damage the legal system and those it serves.

Speaking at The University of Northampton (17 November 2011) as part of the 2011-12 High Sheriff [of Northamptonshire’s] Lecture Series, Mr Garnier said: “The Government were left with very little money when they came to power. I supported the campaign against the closure of the Magistrates Court in Market Harborough, which resulted in its nearest equivalent being in Leicester, some 15 miles away.

“Cost cannot outweigh the need for law, and this is the circle that must be squared.

We must reduce the budget, but not the administration and delivery of justice.”

Talking about his role to over 100 students, staff and guests, Mr Garnier reflected on current challenges for the legal profession and justice. He added: “I act as legal advisor to the Government and the Queen while protecting the public interest on matters such as the laws of charity and contempt of court. My role is to ensure that legal cases are properly administrated and that justice is delivered fairly, both for victim and accused.

“We need universities to continue producing high calibre graduates who are experts in the law. Not just for their own prosperity, but also for their own understanding of life and the benefits they can subsequently bring to society.”

BAR COUNCIL SENDS DELEGATION TO CHINA The Bar Council, which represents barristers in England and Wales, is sent a delegation led by the Chairman of the Bar, Peter Lodder QC, on a business development visit to China in November The visit was part of a long-term strategy to raise the profile of the English and Welsh Bar in China, promoting barristers’ expertise in international dispute resolution as advocates and specialist legal advisers.

The Bar Council hosted seminars in Beijing on Tuesday 22 November and Tianjin on Thursday 24 November, which was chaired by Peter Lodder QC and aimed at Chinese commercial lawyers and in-house counsel.

The seminar in Beijing looked at international arbitration from both English and Chinese perspectives, and explore how it is conducted and perceived by PRC law firms and the ways in which barristers can help.

The Tianjin seminar, co-hosted by the Tianjin Lawyers Association, focused on competition law and the Bribery Act. The Bar Council also hosted a reception for alumni of the Chinese Lawyers’ Lord Chancellor’s Training Scheme (LCTS) at the residence of the British Ambassador in Beijing.

The event celebrated the success of the programme and highlighted the strength of the friendships that have grown between the English and Chinese legal professions.

Peter Lodder QC, Chairman of the Bar, said: “The widening of international practise opportunities has been a major focus for the Bar Council. China is an important market for legal services. We will build upon existing links to forge an even closer relationship.

“In our seminars we will demonstrate the high quality, high value services offered by the Bar and explore opportunities for further collaboration with local Bar associations and law firms.”

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Legal sector to gather for first major summit on newlook legal landscape

Soldiers and law students prepare for international crisis Army officers and students have joined forces to plan for an international crisis.

Postgraduate students from the University of Essex’s School of Law and Human Rights Centre and 16 Air Assault Brigade officers worked together at Colchester’s Merville Barracks to plan a response to a fictional humanitarian crisis in Africa.

Exercise Demeter’s Eagle involved 30 students studying for Masters in International Human Rights and Humanitarian Law, while the Army officers brought operational experience from Iraq and Afghanistan.

The exercise was based around the fictional countries of Tytan and Petraceros. Both countries are beset by a humanitarian crisis and accompanying insurgency. At the invitation of both governments an international force has been called in to stabilise the border area, where insurgents have attacked refugee camps, intimidated local residents and recruited child soldiers.

After introductory briefings, the students and officers worked in mixed groups to draw up a plan for operations taking account of both military and civilian factors. The plan was then briefed to Colonel Hugo Fletcher, Deputy Commander of 16 Air Assault Brigade, and Professor Geoff Gilbert, head of the University’s School of Law. Colonel Fletcher said: “16 Air Assault Brigade provides the Army’s high-readiness, light, short duration intervention force. This scenario is exactly the kind of situation that 16 Air Assault Brigade could find itself tasked to deal with. Our troops can expect to come across staff from aid agencies and international organisations already operating in the area, which is precisely the kind of employment that these students are working towards.

“It is vitally important for all involved in these difficult and demanding situations to know how other institutions think and operate, and it is that mutual understanding that we hope to develop through this exercise.”

Professor Gilbert said: “This exercise is an essential part of a postgraduate student’s preparation for going into humanitarian operations.

“It has been running since the mid-1990s and grew out of the realisation that our students were going on to work alongside the military in the more challenging parts of the world. As a university, we felt it was important for them to be prepared for that and also help the Army improve its awareness of international humanitarian organisations.”

Legal aid cuts will mean more employment tribunals, Citizens Advice warns Abolishing legal aid for employment advice will have the perverse effect of increasing the number of cases that end up at an employment tribunal, national charity Citizens Advice warned.

Far from achieving the government’s objective of saving money and resolving disputes at an early stage, it predicts that the move will have the opposite effect. It is urging the government to rethink planned legal aid cuts or else find another way to fund the employment-related information, advice and assistance of the kind currently provided by Citizens Advice Bureaux and others to both workers and employers.

In its response to the government’s consultation on promoting economic growth through a strong and efficient labour market*, Citizens Advice welcomes the government’s commitment to enforce fundamental employment protection against employers who try to gain an unfair advantage by exploiting staff.

But it says this pledge is meaningless unless people continue to have access to the specialist legal advice that plays a key role in resolving disputes and potential disputes at an early stage, thereby averting thousands of employment tribunal claims.

Citizens Advice Chief Executive Gillian Guy said:

21

news round up

The Law Society’s Law Conference, the first of what promises to become a landmark annual event for the profession, will take stock of the new-look legal services market and focus on how firms and in-house lawyers can develop their businesses further.

Law Conference, due to take place in September 2012 at Celtic Manor Resort, Wales, will see solicitors and those who work with the profession gather to share a wealth of information and ideas covering pressing issues for the legal sector and those it serves, including new business models, opportunities and challenges in globalisation, technological changes, business strategy for successful law firms, mediation, commercial property, commercial law and regulation and risk, to name a few.

Law Society President John Wotton said: “With change comes the opportunity to develop new ideas, innovate and share experiences. This conference will take on board the changes we have seen under the Legal Services Act, including alternative business structures and outcomes focused regulation, not to mention changes to civil justice and other areas of law.

“By September next year we, as a sector, will have a better feel of the direction this new-look legal market is taking. Often, great ideas and valuable experiences go unnoticed and unshared. The aim of the conference is to pull together all of that information under one roof and discuss best practice for the way forward and ensure solicitors remain competitive.”

Opportunities for attendees to speak on one of the topics covered at the conference remain open. Find out more about the two-day event and how to apply call Steve Rudaini, The Law Society +44 (0)20 7316 5624

“We strongly back the government’s commitment to ensure that rogue employers determined to operate outside the law are not allowed to unfairly undercut business rivals by exploiting their workers. We agree absolutely that the most vulnerable workers – those most likely to be exploited by unscrupulous bosses – must be effectively protected.

“But abolishing legal aid for employment cases is no way to achieve these very laudable aims. If the legal aid cuts go ahead, Citizens Advice Bureaux will no longer be able to offer the specialist legal advice and casework that helps resolve more than 3,000 employment problems every year, most involving vulnerable workers in low paid, low skilled work, who have nowhere else to turn for help.

“The government still has time to rethink these plans and prevent legal aid cuts undermining its efforts to promote growth through a strong and efficient labour market, and to create a level playing field that is fair to workers and decent employers alike.”

22

the barrister

Strategy Formulation in a Changing Market Given the changes in the legal market place it is important for Barristers to develop a clear strategic vision and thereafter to deliver that vision.

By Stephen Bedford, Managing Director of the Strategy Consultancy and Marketing Outsourcing business Conical

T

he

legal

has

should buy a particular product/service.

Whilst in the airline industry several

considerable

There may well be longer term strategic

‘classes’ of travel often exist on the same

change in recent years

objectives to consider.

aircraft.

and

going

range from market share in a particular

into detail on all the

sector, through to personal objectives

A tighter approach to segmentation is

influences

impacting

of Directors, such as divestment of

that of ‘niche marketing’. This is a tactic

upon the market place, there is no doubt

a business at a particular value at a

that is employed widely in the services

that

within

particular time. The need to plan is

sector and in particular in the business

the legal market will have to adapt to

somewhat taken for granted yet, many

to business sector. The approach is one

change or face an uncertain future.

organisations both within the legal

that identifies a highly specific group

seen

organisations

sector

without

operating

These could

sector and outside of it, do not make use

of target buyers and results in services

Change in any market place is of course

of structured strategic planning tools.

being specifically designed for that

natural. Technological advance dictates

Given the changes in the legal market

group. It is quite possible that we may

that consumer goods manufacturers

place it is important for Barristers to

see the emergence of truly national legal

have to drive forward product change

develop a clear strategic vision and

brands serving the private client market

as a matter of course, but in the legal

thereafter to deliver that vision.

but may well see some teams break off

sector the basic provision of services

to create highly focused single service

has been relatively static. The internet

Strategic

has provided some on-line models

Techniques

specialised

and the arrival of intermediaries have

There are several easily understood

such

resulted in something of a challenge

strategic planning tools and techniques

etc. whilst larger international firms

to the conventional law firm model.

that can be employed by Chambers.

consolidate their international position.

Planning

Tools

and

The Legal Services Act and Alternative Business

Structures

is

ushering

in

law firms. We could also see more highly as

commercial

law

teams

media/construction/aviation

Clearly the way Chambers serve these Segmentation

Analysis

and

Niche

organisations needs to reflect their

change, the full extent of which is hard

Marketing

to judge, but what is clear is that those

Segmenting

very

Niches can be attractive when the

operating within the legal market will

important concept in all forms of

customers within that niche are likely to

have to ensure that their organisation is

marketing.

suggests

pay a premium for a service that directly

well structured to meet the needs of a

that different parts of the market

addresses their needs. Niches can also

faster moving market place. This could

place have different needs and that

be attractive even when a premium price

result in something as subtle as a slight

if an organisation can align itself, or

is not obtainable, if additional profitable

change in emphasis in the way services

align individual services, to individual

market share can be obtained.

are offered or may dictate a complete

market segments then it will appear

organisational refocus or restructure. As

more focused and relevant. Clearly,

These principles can be seen within the

ever some may be slow to change and

this requires some tailoring of services

Bar as a direct result of specialisation

as a result may have a limited life span.

to specific parts of the chosen market

and as such it would be easy to conclude

segment.

that

particular needs. the The

market

is

approach

a

All businesses should have a clear

the

profession

understands

segmentation and has done so for

strategy that defines what products

We are all subjected to examples of

many years. However, specialisation

or services they market, who those

segmentation on a daily basis. Financial

is only a component of segmentation.

products/services will be marketed to

institutions have different brand names

For example, there is little evidence

and to articulate why clients or customers

aimed at various types of customer.

of changes in operating procedures,

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23

service levels or indeed branding for

Opportunities and Threats

upon consensus building management

different types of Barrister client. The

This is perhaps the most widely used

processes which can result in something

main portal for most organisations – the

strategic planning tool. It provides

of a blurred strategic outcome.

web site – rarely articulates a segmented

useful information about the current

service and the emphasis is often on one

strategic position of the business or

Where a strategic planning process

size fits all. For a business to be able

organisation and it can be used in all

identifies a likely need to discontinue

to respond to changing market needs

sectors. It is remarkably simple to use

a particular service then this is often

it needs to offer service packages that

and provides valuable information for

linked

appeal to the different segments of

business planning.

personalities

the market place and then to promote

to

individuals who

with

will

strong

resist

the

change. As such, perhaps the biggest

these in a coherent way. This will help

A SWOT analysis involves the creation

strategic planning challenge of all is

separate the business from its less

of a list of organisational Strengths,

that of decisive leadership and creating

focused competitors.

Weaknesses,

working environments that respond to

Opportunities

and

Threats. If the exercise is opened up to Service

segmentation

and welcome change.

opportunities

a relatively large number of people the

can be identified by listing the target

analysis can identify consensus within

Even when a business has strong

organisations

the

the organisation. Most organisations

leadership there will always be some

organisation is looking to attract and

or

client

types

use SWOT analysis as an internal tool.

resistance to change. Some people

then looking at creating particular

It can be used to good effect if a select

respond to change slower than others

service packages to meet the needs of

group of clients, peers, referral bodies

and these people need to be supported

that client type. This could impact upon

and possibly even suppliers are asked to

through

the duties of the clerking team, the way

complete the exercise.

process and may well need some

a client is billed, pricing, the web site and so on.

the

change

management

encouragement to adopt changes as well Experience suggests that the views of

as some positive reinforcement.

clients do not always correspond with the Choosing the target market segments

views of those within the organisation.

Closing Comments

may not be a straightforward process.

Where there is a gap this is potentially

Given the changes happening in the

What may be profitable now maybe a

worrying and is something that needs

legal market place with new structures

segment that is about to see the arrival

to be addressed and is suggestive of

and services evolving, Chambers need

of new competition or perhaps see

an organisation that is perhaps losing

to plan clearly, change direction quickly

a reduction in demand or price. An

contact with the market place.

and above all, have market place appeal.

example of this from the law sector

There are plenty of useful strategic

could arguably come from wills and

Listing

strengths,

planning tools available for Chambers to

probate work. Those high street firms

weaknesses, opportunities and threats

consider and these can be used to good

that have a strong wills and probate

achieves nothing in itself. What is of

effect. For these tools to be used to good

team may well have ridden out the

course required is some form of action

effect organisations will need strong

current recession better than those that

plan to make the most of the strengths,

leadership and an ability to implement

are exposed to commercial property

evaluate

change. Analysis alone will not deliver

and transactional commercial work.

protect against threats and address

However, this sector is one that will

weaknesses.

an

organisation’s

and

pursue

opportunities,

probably see the hottest competition

this.

The Author

in the coming years from alternative

Implementing Strategic Change

Stephen Bedford is Managing Director of

suppliers, on-line models and so on. As

Strategic analysis of an organisation

the Strategy Consultancy and Marketing

such market segments should be looked

can,

external

Outsourcing business Conical. He is

at in terms of their growth potential,

support, be achieved relatively easily.

a Fellow and Course Director of the

the relative competitive strength of the

Making the required change is the

Chartered Institute of Marketing. He is

organisation and also the margins and

most challenging issue. A strong clearly

author of reports on Barrister, Law firm

profitability that are available within the

defined

and Accountancy Marketing.

segment.

greatly assist in implementing changes

SWOT Analysis – Strengths Weaknesses

perhaps

with

management

some

structure

will

in strategic direction. Chambers or

T 01727 844000

indeed law firm Partnerships, often rely

e-mail: sjb@conical.co.uk

24

the barrister

Legal Aid Bill proposals- the victims will be the victims here Under current rules, there isn’t a level playing field between claimants and multinational companies. The provisions of the Bill will tilt the balance even further against complainants in these cases.

By Peter Frankental, Programme Director - Economic Relations Amnesty International UK

A

mnesty International

Government, these cases did not escape

is implementing “meritorious cases will

is deeply concerned

the notice of Professor John Ruggie,

be resolved at more proportionate cost,

that clauses of the

who wrote to the Justice Minister in

while unnecessary or avoidable claims

Government’s

Legal

May 2011 in his capacity as Special

will be deterred from progressing to

Aid,

Sentencing

Representative of the UN Secretary-

court.”

and

Punishment

General for Business and Human Rights,

of Offenders Bill (the Bill) will have a

and

related

Amnesty International challenges this

devastating effect on access to justice

aspects of the proposed reforms could,

view on each of the grounds that the

for the overseas victims of human rights

when implemented together, constitute

Government has set out in defence of

abuses by UK multinational companies.

a

legitimate

its position. While in theory cases may

The proposals to take success fees from

business-related human rights claims

continue to be taken, this will only

claimants' damages instead of from

being brought before UK courts in

happen if there is a law firm willing

defendants and to make claimants'

situations where alternative sources of

to act on behalf of overseas claimants

insurance premiums non-recoverable

remedy are unavailable”.

against UK multinational companies.

cautioned

significant

that

barrier

“three

to

will have the effect of severely reducing

There have been very few such cases

the ability of law firms to take on such

The Government in response has argued

over the last decade – ten altogether

cases.

that the cases of concern to us could

– all of which have been taken on by

continue to be taken once the changes

the same law firm. Presumably other

Victims of harm committed by UK

are implemented, and that the costs

law firms have not ventured into this

multinational

while

involved would be more proportionate

arena because of the prohibitive risks

operating overseas, are one group of

corporations

complainants

completely

that

to the damages at issue. The Justice

and costs of doing so. If such cases

have

been

Minister, Jonathan Djanogly, has said

were profitable, there would surely

in

Lord

that “I am not persuaded that there

be other firms taking these on. Under

Jackson’s proposals for reform of civil

disregarded

is anything fundamentally different

the proposed reforms, the structure

litigation

the

about these types of cases which

of costs between the complainant and

litigating

would warrant an exemption from our

the defendant is changing in favour

such rare cases have not been reflected

proposals.” The Minister has drawn

of the defendant, which will makes it

in the Government’s Bill.

In view

attention to a number of measures

even less likely that complainants will

of our research into human rights

that the Government is introducing

find affordable legal representation to

abuses caused by UK companies while

that would help claimants including

take on well resourced multinational

operating outside the UK, particularly

Qualified One Way Cost Shifting (QOCS),

corporations.

in developing and emerging countries

the capping of success fees at 25% of

in the South, this is of huge concern to

damages awarded, and the availability

The

Amnesty. Not only is access to justice

of Damages-Based Agreements (DBAs)

meritorious claims will be resolved

in such cases a fundamental right, but

which would allow the claimants’ legal

at more proportionate costs, while

such litigation serves a preventive role

representatives to recovery their fees as

unnecessary claims will be deterred

in deterring other companies from

a percentage of the damages awarded.

from

committing future harm.

The Minister has expressed the belief

ignores the reality that some cases

While ignored by Lord Jackson and the

that under the changes the Government

may

unusual

costs.

Consequently,

circumstances

of

Government

progressing be

asserts

to

meritorious,

court. while

that

This being

the barrister

25

very costly to pursue, leading to costs

claimants are invariably impoverished

shifted from defendants onto claimants,

being disproportionate to the damages

inhabitants of developing and emerging

as the Government intends. This is

awarded. The Trafigura case of alleged

countries. They lack the resources to

particularly the case for claimants from

illegal toxic waste dumping in the Cote

pay for legal action on their behalf.

developing

D’Ivoire provides an example. The

The

defendants

where damages are calculated at local

enormous costs and outlays in this case

sometimes reflect the willingness of

rates, while the lawyers’ fees reflect the

- around £50m - reflect the difficulties

multinational corporations to devote

UK’s high level of legal costs.

and

enormous resources to defending claims

resources

required

to

collect

excessive

costs

to

and

emerging

countries

evidence from 30,000 complainants

and

lawyers

The Government has asked the Civil

in an unstable environment where the

with procedural disputes before the

Justice Council to undertake work on

lawyers

faced

considerable

deluge

the

claimants’

security

cases come to trial. Under current

several issues that will influence the

risks. The out-of-court settlement of

rules, there isn’t a level playing field

details of how the civil costs elements of

damages amounted to £30m, which

between claimants and multinational

the Bill will be implemented. However,

is £1000 per claimant. The fact that

companies. The provisions of the Bill

this tweaking of the Bill’s implementation

the costs in this case outweighed the

will tilt the balance even further against

details is irrelevant to the main thrust of

damages should not prevent such cases

complainants in these cases.

the Bill’s proposals to shift the burden of

from being taken in future.

costs from the multinational companies The

Government

contends

defending these cases to the claimants

Not only will there be a reduction in

that losing claimants will avoid or

pursuing damages from them. Whatever

lawyers’ success fees from the current

significantly

for

procedures are adopted to implement

maximum of 100% of the costs incurred

expensive costs insurance as they will

the Bill will not fundamentally change

to a maximum of 25%, but these success

generally not have to pay a winning

the prohibitive risks and costs for law

fees will no longer be recoverable from

defendant’s costs because of ‘qualified

firms in taking on such cases. Even if the

the defendant. To date success fees have

one way costs shifting’. This ignores the

proposal for a 10% increase in damages

enabled claimants’ lawyers to spread

reality that whatever the outcome of the

awarded was adopted – to prevent them

their risk by using costs recovered in

case, claimants will need an insurance

being eaten into by legal fees – this would

successful cases to fund the costs of

policy to cover their own lawyers’ costs.

have little effect on the cases involving

those that are not. The reduction in

These are likely to be high in the case

overseas claimants where damages are

success fees payable by defendants will

of harm committed by UK multinational

assessed at local rates.

mean that law firms acting for claimants

companies

will have to take more of their costs out

logistical

gathering

In light of this analysis of the proposed

of claimants’ damages to make up for

evidence in foreign countries where

impacts of the Bill, Amnesty International

the shortfall from the defendant. This

there are often access and language

is promoting an amendment that will

will have a particularly adverse effect on

barriers, in addition to security costs.

carve out an exception for the kind of

claimants from developing and emerging

‘Qualified one way costs shifting’ does

cases of concern to us, as we believe

countries as compensation in these

not address this.

that the victims of UK multinational

reduce

also the

need

abroad,

because

difficulties

of

of

the

cases is assessed according to local laws

corporations operating abroad should

and standards. This has arisen arises

‘Damages-based

(DBAs)

have an avenue for pursuing civil

because of the Rome II Regulation (EC),

are also not the solution for this type of

litigation when their human rights are

as a consequence of which compensation

case. In some contexts DBAs are well

infringed upon. If the Bill is passed in

rates are much lower for victims of UK

suited to group actions, where lawyers’

its current form, such litigation will be

companies operating abroad than for

fees may be recovered as a percentage

closed to them.

victims in the UK.

of the damages awarded to successful

agreements’

claimants. In a jurisdiction such as The Government claims that its reforms

the US, where claimants receive much

are necessary because ‘no win no fee’

higher levels of damages, DBAs may be

conditional

(CFAs)

appropriate. However, in the UK where

can currently be pursued with no real

fee

agreements

compensation payable by defendants

financial risk to claimants and the

is relatively modest, victims would be

threat of excessive costs to defendants.

denied a proper remedy if the costs

In the cases of concern to us, the

burden associated with litigation is

26

the barrister

The Media is the Message, The Message in the Media: Cameras (and Clicks) in Court.

Recent political comments have raised the profile of television courtroom broadcasting again, as well as the debate in relation to the possible effects. As with most commentary, the possibility of radio courtroom broadcasting is ignored.

By Paul Lambert. Lecturer, solicitor and author of Courting Publicity

W

hile broadcasting the Supreme Court, and even the proposed broadcast of sentencing decisions (and possibly appeal decisions), are somewhat limited forms of television courtroom broadcasting, these too can have effects. These effects can be in-court effects aswell as out-ofcourt effects.

Regardless of the form and format of television courtroom broadcasting, the debate relating to that format still centres upon the potential negative or positive effects. Take sentencing decisions. Just because a camera focuses on the judge does not necessarily mean that other participants are not affected by the cameras present. Key participants can still focus on the camera throughout or at key moments. Some might argue that escalated publicity will result from additional television focus on a given case. Do courts require the maximum publicity that television can bring?

That participants are aware that the ultimate verdict or sentence will be/ may be televised retains a potential for in-trial influence and effect. This is notwithstanding that they are not the direct focus of in-court cameras.

All of this of course, is in addition to the concern that even a well meaning, experienced and professionally trained judge can be affected by the in-court cameras. While it may – or may not – be politically convenient to, for example, have riot related sentencing broadcast on television, might this heap additional pressure on the judiciary?

In one of the more notable US case studies, one judge in a televised case

admitted that he was affected by the cameras, and changed his deameanor, statements, etc as a result of seeing himself of television during the trial, as well as receiving comments from his wife. One researcher refers to this as the television trial feedback loop on participants. While this is not a sentence-only television courtroom broadcast, the point is well made.

While recognising that there are legitimate concerns and fears in relation to any format of television courtroom broadcasting (albeit somewhat diminished for certain formats), it still behoves those making these points to properly research and back up their arguments. This calls for proper and effective research into those effect concerns.

Separately, there are many proponents of television courtroom broadcasting.

Broadcaster for example may be in favour of wide ranging formats of television courtroom broadcasting.

David Cameron and Ken Clark appear to favour a limited form whereby only the professionally trained judges are shown in sentencing decisions and possibly appeal decisions. (On an aside, the newly announced position would appear more balanced if referring to the later only, whereas the inclusion of the former leaved the announcement open to the criticism of political convenience as opposed to considered policy).

Traditionally the assumption of proponents is that (all) television courtroom broadcasting will be educational, informative and will enhance public confidence in justice.

More recently proponents conveniently perhaps, drop the argument that it will

be educational and limit themselves to the later more less defined arguments.

In addition, there is an increasing trend to argue that television courtroom broadcasting rests on the issue of increased transparency effects. Again, this is less defined.

A number of difficulties relate to the educational argument. Firstly, there is no body of effects research backing it up. However, other issues arise upon greater analysis. Who is to be educated?

Who is the audience? Are there different audiences for different formats of television courtroom broadcasting?

Also, what are we seeking to educate about? That is, what is the message being educated/transmitted/pushed out? Is the message case specific or more generally in relation to the processes and procedures of the courts?

In the case of the later, will neat specific sentencing decisions say anything at all in relation to how the courts work, what else happened in the case, what the arguments on either side were, what happened at the beginning, middle and end of the case, etc?

However, if we are concerned with educating in relation to a specific case (or any specific case as may happen to be broadcast), is it sufficient to broadcast the sentence only, or do we need all of the case to be broadcast? Or something in between? If the aim is to educate, how do we know the experiment is successful? How much education is required to be a success? It might be suggested that in the first instance, we need to detail and indeed define what we mean by “education.” Two areas of research deserve focus, one being the educative value of one television courtroom broadcasting format content

the barrister

over other television courtroom broadcasting content formats. The second area is the audience, or audience segments, are educated. Again, does this differ between formats? Where differences arise, there may then be policy preference decisions.

While arguments such as being informative and increased transparency are increasing, there are similarities to be drawn with the educational effect issues. In many instances the same queries arise. For example, who or what audience segments are the focus of the increased informative/transparent footage? Is there an audience reception change before and after the footage?

That is, has the benefit actually accrued?

Is there a level of successful change which is required in order to justify the change and issues of legitimate concern to parties, witnesses, etc? Do we care about success and intentions being achieved at all – or is it sufficient to push the new courtroom content out

and hope for the best?

Regardless of argument for and against, the point which is constant across the argument is that there will be effects.

It just depends which effects apply to one’s respective side of the argument.

That being the case, is the research sufficient? Do we currently know the effects? Unfortunately, the body of research is so small and stand alone that we cannot be assured. Indeed, the US Supreme Court has been calling for more empirical research since 1965. It is surprising to say the least that the Us Supreme Court research challenge still remains. It is also worth pointing out that there is still lively debate in the US on these broadcasting issues.

The first US television courtroom broadcast occurred in 1953. Yet just over 20 empirical studies have been conducted since into the effects.

Whatever the results of these studies, this is far too limited a body of research

27

upon which to base decisions and policies.

Clearly, more empirical research is needed. It is important to note, however, that this research needs to begin before the cameras are allowed into a courtroom in new experiments.

There is a golden opportunity to engage before, during and after type research in individual experiments here. Such opportunities have been lost elsewhere in less considered experiments. One final point, while Twitter and social networking are different to cameras, each is deserving of effects research.

If properly considered and conceived, UK effects research can shine a leading light.

Paul Lambert. Lecturer, solicitor and author of Courting Publicity: Twitter and Television Cameras in Court (Bloomsbury).

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28

the barrister

Under the Spotlight: Property Law Leading barristers from Atlantic Chambers recently delivered a fascinating insight into topical issues during a Property Law Conference held in Liverpool. “excellent as usual”; “engaging and informative” and “very enjoyable”.

The

barrister

speakers

were

all

specialists from Atlantic Chambers’ Chancery and Commercial Group, which is one of the largest specialist groups in the North-West. The speakers covered a wide range of topics affecting property law today. The barristers presenting papers were Celia Lund, Liam Grundy, Lawrence McDonald, Hugh Derbyshire, Daian Sumner and Monika Bar. In the morning Hugh Derbyshire started the day off with a detailed examination of the law of Town and Village Greens.

M

Hugh talked about the Commons Act

ore

than

delegates

60

litigation over the years. Professor Cooke

from

outlined the role of the Law Commission

across the North-

in

recommending

law

reform

and

west of England

explained the other projects that her

and North Wales

team is working on. She then took the

attended

the

delegates through the proposed changes

fourth annual event, which is now a firm

that would result from the report and

fixture in the legal calendar. As ever, the

from the draft Law of Property Bill

feedback was extremely positive with

attached to it. There was a lively debate

many delegates already looking forward

about the effects the proposed changes

to the next conference..

would have on the real legal problems faced by the delegates and their clients.

In addition to the talks by members of Atlantic Chambers’ Chancery and

Mr

Commercial

Conference

Partner of Malthouse and Co Chartered

featured talks from two distinguished

Accountants. In his long career he has

guest

acted as an expert witness on many

team,

speakers,

the

Professor

Elizabeth

Cooke and Mr John Malthouse.

John

Malthouse

is

the

Senior

occasions. He shared with the delegates his insights into the role of the expert

Professor Elizabeth Cooke is the Law

witness as well as many stories of his

Commissioner for Property, Family and

experiences over the years.

Trusts Law. Her team recently produced

2006 and the procedural requirements for bringing a claim relating to a green He also looked at some of the changes that are in the pipeline and the significant cases over the last few years that make this area one that all property lawyers need to know about.

As Hugh pointed out: “In an idealized vision of a settlement, a green would likely be at its centre. But that imagined green is often far from the reality of the greens recognised under the regime for registration of greens.”

This was followed by an examination of the usefulness and range of the remedies available under the Protection from Harassment Act 1997 by Celia Lund, who examined some of the recent developments in this area of the law and reminded delegates that it was another remedy which might prove useful in disputes over property where feelings can run very high.

the long-awaited report “Making Land

The day-long event was extremely well

Work: Easements, Covenants and Profits

received by the delegates, who came

a Prendre.” The report aims to simplify

from solicitors’ firms, local authorities

Lastly in the morning session, Monika

and reform this difficult area of law,

and in-house legal teams. Delegates

Bar addressed the delegates on some of

which has been the subject of much

commented that the conference was

the issues which may arise when acting

the barrister

for a client whose mental capacity may

the new Lasting Powers of Attorney, and

be in question. Problems of this type

applications for deputyship.

Jones.

Quoting

are most familiar in the context of taking

29

Nicholas

Straus

QC,

Ms

instructions for a will from an elderly

In the afternoon session, Lawrence

Sumner recited: “This is a cautionary

testator - however, they can arise in

McDonald dealt with a trio of problems

tale, which all unmarried couples who

virtually any property transaction, and

faced by developers: overage, party walls

are contemplating the purchase of

one of the first hurdles for a solicitor

and mobile phone masts. Lawrence

residential property as their home and

is being able to spot when a closer

talked about the structure of overage

all solicitors who advise them, should

assessment of a client’s capacity might

agreements and the practical difficulties

study.” Ms Sumner posed questions to

be in order.

they can cause. He dealt in detail with

delegates on the issues surrounding

the different types of trigger for the

single legal owners and joint legal

Monika started by setting out the

payment of overage and the different

owners and provided an insight into the

basic principles of the current law on

forms of security that are available.

future of litigation in this area.

capacity under the Mental Capacity

In relation to party walls, Lawrence

Act 2005 – including the operation of

explained the different types of party

“The changing face of property means

the presumption of capacity and the

walls and notices that can be used and

we’re going to see more parents helping

decision- and process-based approach

the practical difficulties if the legislation

their children purchase a property and

adopted by the Act.

is not applied properly.

having an informal retirement income,”

This approach

Ms Sumner said. “With rising property

means that a person’s capacity is to be assessed in relation to making a

Speaking on mobile phone masts (of

prices making it increasingly difficult

particular decision, rather than once

which it was reported in 2009 that

for first time buyers, there will be more

and for all in relation to all future

there were 52,500 in the UK) Lawrence

instances of friends purchasing homes

decisions; and that it is a person’s ability

discussed the problems that can be

together as a home to live in as well as

to engage in the process of decision

faced by landowners who want to move

an investment. More landmark cases

making, rather than the actual decision

a mobile phone mast, which they may

will no doubt shape litigation in the

he makes, which is assessed for the

have agreed to have on their land for

future.”

purpose of determining capacity.

only a small annual rent. Lawrence outlined the guiding principle of the

In addition to the various talks there was

In addition to explaining the law,

Electronic

Code

a lively debate amongst the speakers

Monika delved into some of the cognitive

which states that ‘no person should

and the delegates about the property

disturbances which could typically be

be unreasonably denied access to an

law issues faced by clients. At the end

encountered in clients, such as different

electronic communications network or

of a full day in the excellent facilities of

types of dementia – a growing problem

to electronic communications services’

the Liverpool Hilton hotel, the delegates

in our increasingly aging population –

and looked at how that can override the

had a complete pack of speakers’ notes

and brain trauma. The often surprising

desire of a landowner to get their land

to take away with them. Enquiries

effects that injuries and disorders may

back.

about next year’s event have already

Communications

been received and Atlantic Chambers

have on the brain were illustrated by some of the more famous case studies

Liam Grundy then went on to discuss

will soon be lining up guest speakers

in neuroscience. These included the

charging orders and orders for sale,

and considering the topics for the 2012

railroad

miraculously

an area of great practical importance

Property Law Conference.

survived having an iron rod driven

and the subject of considerable judicial

through his brain but whose personality

comment.

worker

who

The above feature has been produced to give an insight into some of the

was completely transformed by his injury and the man whose surgery to relieve

Wrapping up the day, Daian Sumner,

content featured in Atlantic Chambers’

epileptic seizures resulted in a complete

talked about the delegates through an

recent Property Law seminar and in no

inability to form new memories, and

interesting look at disputes about the

way constitutes legal advice. For specific

who as a result remained mentally stuck

family home and asked the question

advice please contact Atlantic Chambers

at the age of 25 until his death at the

– where do you place your trust? Ms

directly. Visit

age of 82.

Sumner reviewed the extensive case law

www.atlanticchambers.co.uk

on this area over the last few years, Monika also covered the jurisdiction of

which has very recently led to another

the Court of Protection under the Act,

Supreme Court decision in Kernott v

30

the barrister

Bringing mobile forensics into the enterprise

By Leeor Ben-Peretz, VP Business Development, Cellebrite

I

n the past, the process of gathering digital information using forensic analysis for investigatory and evidentiary purposes had been the remit of the police, intelligence and other specialist law enforcement agencies. Yet many large enterprises conduct their own internal investigation but they then face the challenge of having to collate data and information. In any corporate investigation, whether it is a large scale international fraud case or a claim for wrongful dismissal, all of the information available needs to be utilised to enable a full 360˚ view of the situation. Therefore it is increasingly now becoming prevalent for enterprises to adopt advanced technology, previously restricted to law enforcers, so that they can gather potentially vital information for internal investigations.

In particular enterprises are utilising new technology in the mobile forensics arena to gather information held on mobile devices including mobile phones, smartphones and tablet devices. The mobile device has become a standard component of the majority of investigations, with its ability to provide a wealth of valuable insight and evidence embedded in contact lists, text messages, video and audio files, photos, social networking messages and even hidden or deleted data. But what does this mean for the investigators? What information can they retrieve and how will they be able to utilise it, not only in their internal investigations, but to ensure that it would also be valid in a court of law?

The changing work environment The changing working environment now means that the majority of information is stored electronically, whether it is on the organisation’s physical server or utilising a cloud-based alternative. In the past, investigators only had access to the employee’s desktop/laptop device

but new technological advancements in the mobile market have caused the information held on smartphones and mobile devices like iPads and other tablets to expand exponentially. Today mobile devices have become an even more important repository in collecting data for an internal investigation than desktop devices.

The capabilities of today’s average phone include high quality camera, audio and video capabilities, email and SMS communications as well as the capacity to store a huge amount of data.

The smart phone has become an ideal accessory for all employees, providing as it does an excellent means to store data and stay in touch with office colleagues and business associates, keep up-to-date with emails, capture photos or record information. It is not surprising therefore that the mobile phone has become a major component in investigations. A vast wealth of information or evidence can be found on mobile phones: pictures, phonebooks, text messages, call history, and video movies. This collection of information can supply critical information for investigators, holding in many cases the secret to unlocking the movements, activities and contacts of employees and placing suspects at specific locations at a given time and date, thereby forming an empirical basis for prosecution or defence.

What is mobile forensics?

There used to be a time, not so long ago, when “mobile” forensics was basically getting fingerprints and other telltale exterior marks off the phone.

Not anymore. As the mobile device market has grown and the capabilities of smartphones have increased dramatically, there’s been a surge in the amount of information that investigators can extract. However, gaining access to this information is no easy task: Unlike computers, mobile devices suffer

from a multiplicity of operating systems, communication protocols and devices lacking any single standard. Of the thousands of devices in circulation today, each has its own language, flash memory, communications protocol and operating system. Extracting information requires a level of knowledge and expertise.

There are two basic types of extractions: logical and physical.

With some exceptions, logical extraction provides access to content that the user creates or controls, such as call history, text messages, rich media, and mobile applications. With logical extraction the forensic investigator needs to communicate with the operating system in its native language to request the information required, such as the phonebook contacts. When the phone operating system does not provide access to specific content, it will not be available via logical extraction.

Physical extraction is much more invasive: It allows forensic researchers to obtain a full copy of the phone memory. Physical extraction provides the means to recover hidden evidence such as internal phone data and deleted phone content. However, this is far from straightforward as there is no standard for accessing internal flash memory and phone manufacturers are keen to protect their IP, therefore making it hard to bypass the protective mechanisms.

Discovering deleted information When conducting investigations it is vital to utilise and access all of the information possible to gain greater and unprecedented insight into the employee’s activity to ensure a strong case can be developed. It is possible not only to extract all of the information currently held on the mobile phone but also information that the owner had deleted. In truth, most communications or files that had been deleted from the phone will still ultimately reside on the memory – even if it does not show on the device itself. In the past, retrieving

31

the barrister

deleted information was a huge challenge. Whilst extracting information from PC hard disks has become a relatively easy exercise, information wiped from a mobile phone's memory can be almost impossible to recover, according to Tyler Moore, a researcher at the University of Cambridge Computer Laboratory.

When a user tries to delete data on a PC, the information is not actually removed. Instead, the pointers to the data are deleted, but investigators can still recover it. While mobile phone data is typically treated in the same way, the proprietary nature of the mobile phone market means that information is stored and handled in non-standard ways making the task of retrieving it considerably more difficult. But the technology is moving forward, and solutions like Cellebrite’s Universal Forensic Extraction Device (UFED) are now able to retrieve all of the visible evidence like photos, phone books, calendar, videos, audio, text messages, call logs, chat, email, web history from thousands of different devices including iPhone, Android Blackberry, Windows Mobile, Chinese Phones and Palm OS devices. Recent advances have even made it possible to place individuals at a particular location by identifying the cell address that the phone was registered from or picking up the geotags from images.

Using the data as evidence Of paramount importance in any forensic investigation is retaining the integrity of the data and we endorse an approach which operates in ‘read only’ mode and cannot alter the evidence.

Gaining access to the information is only part of the problem; the other challenge is in presenting it in a manner that is both valid, and if required, is admissible in a court of law – being “forensically sound”. Decoding this information and presenting it in a customisable manner requires intimate knowledge of the plethora of phones on the market and keeping pace with every new model that appears on the market.

This brings us to another key frustration with compiling and presenting mobile forensic evidence in court. Two specific

challenges have to be addressed; the first being the need to retain the information on the device exactly as it was found. The second challenge is to present the mobile forensic reports in a format which is clear and unequivocal and easily understood by the judge and jury. Retaining the mobile evidence in its original format requires the use of a Faraday bag or tent to disconnect the phone from the network and ensure that no incoming calls tamper with the evidence. Mobile forensic evidence must also be accompanied by MD5 or SHA signatures to prove the evidence has not been tampered with and the solutions on the market, which are available to enterprises, should comply with these requirements.

yet comprehensive assessment of the evidence available, enabling them to assess the viability of the case; either for the prosecution or the defence; and make informed decisions about the way forward, using the latest cutting-edge mobile forensic tools available on the market today.

Leeor Ben-Peretz – VP Business Development, Mobile Forensics Leeor Ben-Peretz serves as Cellebrite's Vice President of Business Development overseeing the company’s global mobile forensic activities. At Cellebrite, Mr. BenPeretz focuses on business and product related activities, maintaining close relationships with the mobile forensics community.

Making forensics a reality Mr. Ben-Peretz holds an Executive This is not a process that investigators MBA from the Hebrew University of have to go through alone, as there Jerusalem (Israel) and a BA in business are specialist vendors that are able to and economics from the Academic provide the equipment and training College of Tel-Aviv (Israel). required to make this a feasible reality www.cellebrite.com Actors' Benevolent.pdf 1 09/02/2011 09:09 for enterprises. The huge 6number and diversity of mobile phones in use worldwide, has long been a barrier to solving Patron: H.R.H. The Prince of Wales the challenge of mobile forensics. Few vendors are able to keep up with the phenomenal pace at which new makes and models are introduced to ensure that they can support the extensive range of …a helping hand for actors since devices available on 1882… the market. The more recent technological ‘The public’s perception of the acting profession is developments of being that we are glamorous and well paid but the image able to tackle the of fame and fortune is not the reality for most of problem of extracting the profession and for some the show will not go on – those actors and actresses who are suffering data, including deleted hardship because of illness, accident or old age. data, has opened up even greater opportunities for an internal investigation.

The potential in being able to extract vital information within minutes represents a major step forward in allowing investigators to conduct a speedy

The fund was founded to provide financial support for such individuals. Please help them by making a donation or remembering the fund in your will.

Thank you.’

Penelope Keith, C.B.E., DL President 6 Adam Street, London, WC2N 6AD Tel: 020 7836 6378 Fax: 020 7836 8978 E-mail: office@abf.org.uk

Registered Charity No. 206524

32

the barrister

Drug Testing – An Overview of What it Can Do Drug testing is now commonplace in a number of situations – police, treatment centres and safety critical industries. Within family law cases drug testing has increasingly been used to assess parental substance use as part of proceedings. But for those who are not familiar with the subject it can appear to be a complicated issue. This overview provides a summary of the current drug testing methods available.

By Iain Forcer, Concateno Trichotech What can be tested for drugs?

T

here are various samples types that are used for drug testing.

The three most common are hair, urine and oral fluid (saliva).

Hair Hair testing is frequently used in family law proceedings, due in part because the tests are able to provide a three month window of detection, which is much longer than either oral fluid or urine. Head hair grows at a rate of approximately 1cm a month, so for a test to cover a three month period the hair sample will need to be at least 3cm in length. Drug use history can be attained as long as the hair allows e.g.

12cm of hair = 1year Using hair testing also allows for different types of analysis to be used; either a month-by-month or overview analysis.

A month-by-month analysis involves the laboratory cutting the sample into 1cm sections to give a monthly breakdown of use. Consecutive sections of hair can indicate a retrospective history of drug use An overview, as it suggests, provides an overview of drug use in either 2cm or 3cm sections, covering approximately two or three months respectively. This will give an indication of whether or not a drug was consumed within that time frame.

Urine Urine

analysis

is

used

in

many

industries in particular for testing in the workplace and shipping. An example of its use would be after an incident in a safety critical environment or as for unannounced random testing.

Oral fluid (Saliva) Oral fluid is frequently used in healthcare and Criminal Justice settings, such as Drug Action Teams and by the Home Office for the Drug Interventions Programme. Outside of the UK, oral fluid testing is used by Police at the roadside to test drivers.

How do drugs get into hair, urine and oral fluid?

When a drug is consumed, most commonly smoked, snorted or injected, it enters the body and is absorbed into the blood stream and circulates around the body. Once there it takes a different route with each sample type to lead to detection, for example: Hair - After a drug enters the body the drug is absorbed into the blood stream.

As each hair follicle has its own blood supply, when the hair grows drugs are incorporated into the strand. Drugs remain locked in the hair, depending on hair treatments and weathering What types of tests are available?

Screening and confirmation tests The first test performed on a sample is typically a screening test based on immunoassay. This can be carried out using an instant test or in a laboratory.

Screening tests are used to identify negative results. Positive screening

results may require a more detailed confirmation test.

Samples that give a positive response to a screening test may require further testing to identify the specific drugs present. Confirmation tests, using GCMS (gas chromatography/ mass-spectrometry) or LCMS (liquid chromatography/mass-spectrometry), can provide fully defensible results for a court of law or industrial tribunal. They can only be carried out in the laboratory and are considered to be the ‘Gold Standard’ in drug testing.

Point of Care and Laboratory Analysis Point of care tests Point of care tests are sometimes called POCT or instant tests. They are screening tests that can be used on site and give a result in minutes. There are point of care tests available for urine and oral fluid samples.

Laboratory analysis The alternative to point of care tests is to send a sample to the laboratory for testing. Screening and confirmation testing is available in a laboratory for oral fluid, urine and hair. After the analysis takes place in the laboratory the results can be sent onto the relevant contact.

What drugs can be tested for?

Point of care tests and laboratories can test for a large range of drugs. This list highlights some of the main drugs that can be detected:

AF0422 Barrister Magazine_Layout 1 09/06/2011 08:47 Page 1

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Drug Name

Drug Class

Also known as….

Alcohol

Legal

Booze, bevvy

Amphetamine

Class B

Speed, sulph, sulphate, uppers, wake ups, billy whizz, whizz, whites, base

Barbiturates

Class B

Barbs, barbies, blue bullets, blue devils, gorillas, nembies, pink ladies, red devils, sleepers

Benzodiazepines

Class C

Benzos

Cannabis

Class B

Bhang, black, blast, blow, blunts, Bob Hope, bush, dope, draw, ganga, grass, hash, hashish

Cathinone

Class C

Khat, Quat, qat, qaadka, chat

Cocaine (inc crack cocaine)

Class A

basuco, C, charlie, coke, dust, Gianlucca, gold dust, Percy, lady, snow, toot, white

Ketamine

Class C

Green, K, special K, super K

LSD

Class A

Acid, blotter, cheer, dots, drop, flash, hawk, L, lightning flash, liquid acid, Lucy, micro dot, paper mushrooms, rainbows

Mephedrone

Class B

meph, m-cat, MCAT, Miaow, miaew, 4-mmc, bubbles, white magic, plant feeder

Methadone

Class A

Linctus, mixture

Methamphetamine (inc ecstasy)

Class A

Crystal meth, ‘yaba’ (ya-ba, ya ba), zip, meth, speed, go-fast, cristy, christal, tina, chalk, crank, shabu, glass, crazy medicine, L.A.

Opiates (inc heroin, codeine & morphine)

Class A & B

Boy, brown, china white, dragon, gear, H, horse, junk, skag, smack

Tramadol

Class C

Tramal, Ultram

Methamphetamine (inc ecstasy) Class A Crystal meth, 'yaba' (ya-ba, ya ba), zip, meth, speed, go-fast, cristy, christal, tina, chalk, crank, shabu, glass, crazy medicine, L.A. Opiates (inc heroin, codeine & morphine) Class A & B Boy, brown, china white, What else should be considered?

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Chain of Custody If a drug test result is going to be used in court it is important to ensure you choose a company that provide a tight chain of custody procedure. Chain of custody ensures the results reported by the laboratory relate, beyond all reasonable doubt, to a specific sample provided by a particular individual and means that the sample is fully defensible in a legal setting.

What does chain of custody involve?

1.

Chain of custody form with

barcodes that link the specimen to the paperwork 2.

Donor consent and collector's signature on every form 3.

Tamper evident seals on the specimen containers that show if any attempt has been made to remove them 4.

Secure packaging to protect the specimens in transit to the laboratory 5.

Laboratory checks on arrival to confirm the chain of custody is intact Quality and Accreditation When choosing a supplier it is imperative to investigate accreditations for quality.

If you were using point of care tests for example, checking the product is CE marked would be important. For drug tests that are conducted in a laboratory, ISO/IEC 17025:2005 accreditation should be the only choice. This is an International Standard for testing and calibration laboratories. A laboratory that is accredited by United Kingdom Accreditation Service (UKAS) to ISO 17025 standards will undergo rigorous

Source: Talk to Frank

34

yearly audits, have to implement and maintain quality systems and can apply for accreditation for each new drugs and metabolites they seek to test for.

Iain Forcer has over a decade’s experience working in the drug and alcohol testing industry. He has worked in partnership with a wide range of sectors and industries including solicitors, police services and prisons, blue chip companies, and major healthcare and treatment providers.

The Company spokesman for drug driving, he gave evidence to the UK Parliamentary Transport Committee Inquiry into Drink and Drug Driving in Westminster in October 2010. He is frequently interviewed by TV, radio and the press on drug driving and drug related issues, including recently by the BBC for the Lillian’s Law campaign (October 2011), and for InexcessTV (November 2010).

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                                                                                                                                                                                                                                                           

                                                                                                                                                               

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EXPERT WITNESS SERVICES

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EXPERT WITNESS SERVICES C

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the barrister

ific new advert copy.pdf

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Engineering Expertise

Covering the world to prevent, control and investigate fires and explosions Established in 1970, we have rapidly become leading global investigators of fires and explosions in commercial, industrial and marine environments. From investigating fires connected to engineering failures, pollution or manslaughter, our multidisciplinary services are expertly tailored to suit clients’ individual needs. All investigations can be prepared for litigation by our highly-qualified investigators who have the proven calibre to give evidence in Court and produce first class reports.

Provision of investigators for: Standing as Expert Witnesses in Court - Litigation support Summary, Preliminary and Full Report writing for: Internal company investigations - Court cases, including photographic evidence and diagrams - Statements and precognitions

Glasgow Head Office Tel: +44 (0)141 639 6611 London Tel: +44 (0)20 8816 8744 Dublin Tel: +353 (0)1 466 3333 Belfast Tel: +44 (0)28 9068 6754 Manchester Tel: +44 (0)161 408 3303

E: admin@ific.co.uk W: www.ific.co.uk

Forensic engineers Are you involved in a technical dispute?

At Cadogans, we have the knowledge and experience to help you. Difficult and complex?

It’s what we’re here for.

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the barrister

We are a professional firm of general practice chartered surveyors, regulated by the RICS, based in Maidstone, Kent offering a comprehensive range of valuation and surveying services of primarily residential properties throughout London and the south east.

We act, provide reports, and give evidence in Court as Expert Witnesses in compliance with Part 35 of the Civil Procedure Rules 1998 (CPR35) for: Litigation Disputes Negligence Inheritance tax Compulsory purchase and compensation Debt recovery Insolvency

CRANBORNE ASSOCIATES

C H A R T E R E D S U R V E Y O R S & VA L U E R S

Barham Court, Teston, Maidstone, Kent ME18 5BZ T: 01622 618757 E: info@cranborneassociates.com W: www.cranborneassociates.com

Highways & Traffic Safety Ltd

PAF has been established since 1995 and is a well respected consultancy providing independent expert advice and support to the UK Legal Profession, Insurance Industry and Highway Authorities. PAF specialise in Forensic Collision Investigation. Road Safety Engineering, Road Safety Auditing and Traffic Management.

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Forensic Collision Analysis & Reconstruction Scene Investigation Collision 3D Animation Locus Reports Vehicle Examination Tachograph Analysis Transport Health & Safety Conflict Studies Road Safety Audits & Assessments Highway Maintenance Issues Investigation of Non-Compliance of Highway Design & Standards

Paul Fenton, Director of the company and former Metropolitan Police Forensic Collision Investigator & Vehicle Examiner, has considerable experience in the field of road safety and highway design and is recognised by the Highways Agency as a Road Safety Audit Team Leader.

He is a Member of the Chartered Institute of Highways & Transportation, Institute of Highway Engineers, Institute of Traffic Accident Investigators and Society of Road Safety Auditors.

The Old Vicarage, 5 Ancliffe Lane, Bolton-le-Sands, Carnforth, Lancashire, LA5 8DS Tel: 07775766454 Email: info@paf.co.uk

www.paf.co.uk

Justice is only a hair’s breadth away

Concateno TrichoTech is Europe’s most widely accredited laboratory to perform drug testing in hair to the International Standard ISO/IEC 17025.

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Longest established hair testing laboratory in the UK – over 15 years of analysis

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99% of results issued on time (Q2 2011)

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Unrivalled database: over 1,000,000 hair tests to reference

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Collecting officers trained with both class-based sessions and in situ in hair and blood sample collections

Dr Claire George

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Appointments for sample collections arranged within 1 working day

Laboratory Director

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Strict chain of custody – all hair samples analysed in our Cardiff laboratory

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A trained Expert Witness team who can back their reports in person, in court

When building a compelling child protection case, only the most robust evidence counts.

Concateno TrichoTech delivers unparalleled quality in hair testing services for drug and alcohol use, as well as a range of sobriety tests to support abstinence using other sample types.

Concateno TrichoTech is the market leader with the most advanced laboratory and experienced Expert Witnesses.

When it matters most, Concateno TrichoTech is the name to trust.

The UK provider of drug and alcohol testing services accredited by UKAS to ISO/IEC 17025.

If a provider doesn’t display the UKAS testing symbol with their laboratory number, they are not accredited for drug testing – don’t risk anything else.

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www.concateno.com Tel. +44 (0)29 2054 0542 | childprotection@concateno.com Concateno TrichoTech, 1 Pentwyn Business Centre, Wharfdale Road, Cardiff, CF23 7HB, UK © Concateno 2011. MCP0021 Ed.004

An Alere™ Company

Top-up insurance.

How much cover do you need?

The bare necessities or the comfortable bespoke.

In his January 2011 report the Chairman of Bar Mutual commented on a recent case in which a personal contribution was required from a Member who had no excess layer insurance and highlighted how important it is for members to obtain financial security and peace of mind by taking out adequate excess layer insurance.

Our top-up cover is readily available and affordable. Endorsed by Bar Mutual, TLO offers a bespoke scheme for both individual and chambers clients, providing various levels of cover up to a maximum of £125M. Supported by seventeen of the top twenty chambers*, TLO are the leading providers of barristers’ top-up insurance.

TLO Insurance Services Limited 87 St James’s Street, London SW1A 1PL Tel: 020 7839 0472 Fax: 020 7183 9500 Email: barristers@tloinsurance.co.uk www.barristersindemnity.co.uk Authorised and regulated by the Financial Services Authority *Source – The Lawyer Top 30 Chambers by turnover 2010-11