http://www.barristermagazine.com/highest-paid-barristers by Barrister Magazine

the barrister

#49

ESSENTIAL READING FOR BARRISTERS

7th June 2011 - 29th July 2011

Est. 1999

www.barristermagazine.com

TRINITY TERM ISSUE

ISSN 1468-926X

The Impact of the civil legal aid cuts

Features

Public Support for the Legal Aid Scheme

of the population was entitled to advice under

Those of us who call the legal aid system the

the rather limited

fourth emergency service know that we have to

scheme. Now those

be aware of an important difference. However

who are entitled are

much money you have you can call on the NHS,

generally on benefit

the police or the fire brigade. They will not

or benefit levels of

ask for proof of your income before offering

income. Only a few

assistance.

types of cases are

should we do 3 “What with all the Young Lawyers?” Leolin Price CBE QC, responds to Gerard McDermott QC article which appeared in the Easter issue of the barrister under the above heading Consequences of 4 The Jones -v- Kaney The majority in the Supreme Court in Jones -v- Kaney [2011] UKSC 13 is dismissive of the risk that their decision to remove expert witness immunity to civil claims will have a ‘chilling effect’ on the supply of willing experts. But opening expert witnesses to the potential distractions of vexatious suits from disgruntled litigants is never likely to encourage involvement in forensic work. By Dr Chris Pamplin, Editor, UK Register of Expert Witnesses

not means tested. means

And that in a nutshell explains in part the

That

predicament of those seeking to ensure the

for

survival of a meaningful legal aid system.

population legal aid

When it was set up over sixty years ago, much

services are not seen as something they

much

that the

price £2.80

Carol Storer Director LAPG

p.6

of the 14 Notification Right to Complain Since qualifying as a barrister I have had a sense that the regulatory framework under which barristers work was in a broad sense rational. Like most barristers I occasionally had to refer to the Code of Conduct, especially in the early years. A recent development has eroded my trust in the rationality of the Code…….. By Justin Valentine, Atlantic Chambers, Liverpool.

Women’s Justice Reform Fifteen years ago, there were some 1,800

More than half of women prisoners have

women in custody. Today there are over 4,000.

suffered violence at home. One in three has

In the course of a year more than 11,000 women

experienced sexual abuse. A quarter has been

are imprisoned. Instead of a punishment of

in local authority care. Two-thirds have a

last resort, women's prisons are now seen as

neurotic disorder, such as depression or anxiety.

stopgap, cut-price providers of drug detox, social

Women prisoners have a much higher rate of

care, mental health assessment and treatment -

severe mental illness such as schizophrenia:

a refuge for those failed by public services.

14% compared with less than 1% in the general population. Over a third of women who are

Most women in prison have committed petty

imprisoned will already have attempted suicide.

offences. Many have been victims of serious

Women, who make up only 5% of the prison

crime

population, account for almost half the incidents

and

sustained

abuse.

Distressingly,

governors often comment that many women do

of serious self harm in custody.

News 22

BAR Standards Board appoints Independant Observer

Build the Big Society behind bars, says charity

Publishing Director: Derek Payne 0845 5190 176

not need to be in prison in the first place. More women are in court for theft and handling stolen

We are locking up our most damaged

goods than any other crime. Over 60% end up

and vulnerable women in bleak, under-

serving six months or less in custody.

staffed institutions, from which, despite

020 7969 5669 www.haysmacintyre.com

email: info@barristermagazine.com Publishers: media management corporation ltd

p.8

Design and Production: Alan Pritchard email: info@soinspire.me.uk

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the barrister

“What should we do with all the Young Lawyers?” Leolin Price CBE QC, responds to Gerard McDermott QC article which appeared in the Easter issue of the barrister under the above heading

ne of his observations

was no junior in his chambers with a practice

for the following year, was a considerable

was:

suitable for pupils, and suggested that I might

exercise; and, of course, the members of

“Obviously

comment

the

try Lincoln’s Inn where his friend, Cambridge

the pupillage committee are themselves

profession cannot hope

rowing blue and wartime Brigadier, had

individually practising barristers giving up

to accommodate every

settled into practice with 2 pupils at a time.

working time for this exercise.

applicant for pupillage”.

What has been said is about my personal

What, in the circumstances, can be done?

that

statement

because

experience but its immediate relevance is to

The competition for pupillages is unfair,

highlight how in 1949-50 the small practising

unmanageable and disgraceful. A simple

“Obviously”, is in my view unworthy of

bar was making pupillage readily available

professional obligation that every junior

our profession. The well-educated would-

for newly-qualified barristers; and at the

counsel of 5 years’ standing should have at

be members of our profession, newly and

same time those newly qualified who could

least one pupil at any time would, with the

exceptionally well qualified after completing

not face the slow lean mean years were able

greatly increased practising bar, be a step

the

its

desolate

assumption,

prescribed

are

to choose alternative paid employment in

towards ensuring that everyone completing

mistaken

government, local government, commerce,

the vocational training could expect to find

assumption as they join the modern scramble

university or other teaching, or in solicitors’

a pupillage: a just and fair expectation for

of applications for pupillage.

firms with a view to becoming solicitors.

anyone whose university education and

I was myself lucky. In 1949 I passed Bar

Many years later, influenced by critics with

vocational training may have left him (or

exams when there were only about 2000

and without experience of practice at the Bar,

her) with an accumulated debt of £30,000.

practising barristers in England and Wales,

prescribed educational requirements and

But how is payment during pupillage to be

and that number had been without significant

vocational training had been changed with

arranged? It could not fairly be imposed on

change for more than 50 years. I had not

this effect: that newly trained barristers are,

the individual pupil-master or on chambers

achieved the Certificate of Honour (1st place)

and for some time have been, marvellously

as a chambers expense. Scholarship or

in the Bar exam results but had been placed

well-educated and equipped for practice at

bursary funds available to the Bar Council or

(I think) 5th; and I faced with optimism (but

the Bar.

the Inns of Court will not easily provide the

without hope of family financial support) the

At the same time it had gradually became

necessary funding. What is needed is a new

prospect of pupillage and practice in spite of

usual, and eventually a requirement, that

Review: how to escape from the unfairness

fears about my ability to survive what were

pupils should be paid. This has had what I

and injustice which we have carelessly

then, predictably, very lean and mean years

regard as an accepted but unsatisfactory

sleepwalked into and have allowed to become

of practice after pupillage.

reality: that a greatly increased practising

what leads Gerard McDermott QC to make

My first pupil-master was a busy common law

Bar is making less provision than it should

his statement of what seems, but ought not

junior, who had 4 pupils at a time and relied

for pupillages to be available for our brilliant

to be accepted as, “obvious”. What I have

on them for research and discussion about

would-be barristers. This reality is also

written here is a protest. Providing a solution,

the conduct of his cases. Unfortunately I was

affected by modern prescriptive rules about

without creating new problems, is a difficult

soon diagnosed as having tuberculosis and

the duties of pupil-masters and the conduct of

and urgent task. I do not suggest how that

removed for about a year to a sanatorium. In

pupillages. The modern reality includes this:

solution is to be achieved. I am sure that

that time I was kept in bed, but not seriously

that, for example, a set of chambers now has

allowing the present ugly reality to continue

unwell; and Sweet & Maxwell/Stevens sent

only 2 pupils at a time where previously it

will be bad for the Bar, the legal profession

me textbook indexes to make or update.

usually had 10.

and the Law.

When I was released from the sanatorium the

In a relatively small set of chambers the

chest physician told me that, if my diagnosis

pupillage committee was faced recently

Leolin Price CBE QC who is responding to

had been 9 months later, new drugs would

with

10 Old Square

have kept me away for only 6 weeks! But

the applicants appeared wonderfully well

by the time of my release my common law

qualified. Reducing the number to 12 for

pupil-master had taken silk; said that there

interview and then choosing one as pupil

grievously

vocational

introduced

ill-served

training, this

applications

for

pupillage.

All

Lincoln’s Inn

the barrister

The Consequences of Jones -v- Kaney By Dr Chris Pamplin, Editor, UK Register of Expert Witnesses

he majority in the Supreme Court in Jones -v- Kaney [2011] UKSC 13 is dismissive of the risk that their decision to remove expert witness immunity to civil claims will have a ‘chilling effect’ on the supply of willing experts. But opening expert witnesses to the potential distractions of vexatious suits from disgruntled litigants is never likely to encourage involvement in forensic work. It is the unquantifiable nature of this risk that so concerned the dissenting Lord Hope and Lady Hale, as it should trouble anyone interested in the proper administration of justice.

A chill wind For all the effort put into drawing an analogy between expert witnesses and advocates, and into seeking to learn from the experience of the removal of advocate immunity a decade ago, the majority in the Supreme Court completely ignored the fundamental difference between these two players. Experts have busy professional lives away from the legal system and can readily choose not to take on forensic work, but advocates have no such easy choice. Lord Phillips asks ‘Why should the risk of being sued in relation to forensic services constitute a greater disincentive to the provision of such services than does the risk of being sued in relation to any other form of professional service?’53 Well, the answer to that lies in the irrationality of failed litigants. The experience of advocates is no guide because a failed litigant will be more wary of suing a lawyer than he will be of suing an expert. Disgruntled litigants could well pursue their expert witness on the basis that, being unaccustomed to such attacks, the expert may view the onslaught with sufficient distaste as to settle quickly unmeritorious claims. Lord Phillips says ‘It is easy enough for the unsuccessful litigant to allege, if permitted, that a witness of fact who has given evidence against him was guilty of defamatory mendacity. It is far less easy for a lay litigant to mount a credible case that his expert witness has been negligent.’58 But it is easy enough to vex the expert in their attempts. In short, an advocate faced with the removal of immunity has always been much less

likely to leave legal practice, or be put off by the threat of being sued, than will be, say, a surveyor or a paediatrician to abandon their forensic work. So how will experts view the risk? Only time will tell. But taken together with the current efforts at the Ministry of Justice to cap expert witness fees and the potentially serious consequences to an expert’s livelihood of a professional disciplinary hearing arising from his occasional forensic work, loss of immunity can only act as a pressure to reduce the supply of expert witnesses as experts seek to use their time for better paid and less contentious work. Accepting the analogous position of advocates and expert witnesses led the majority to draw incorrect conclusions from the removal of immunity for advocates. For example, ‘The danger of undesirable multiplicity of proceedings has been belied by the practical experience of the removal of immunity for barristers’85. That’s not a safe conclusion. The inhibition against a disgruntled litigant suing his lawyer (a man quite at home in the law) is entirely different in force and nature from when it is an expert who is the potential target. Expert and advocate also have different duties. As Lord Hope says, ‘The duties that the advocate owes to the court are not as far reaching as the overriding duty to the court that rests on the expert.’162 The advocate is paid to be a partisan player who has to put as strong a case as he can for his client. The expert witness is most definitely not that!

Professional class of expert witness Another unfortunate consequence of this decision lies in the impetus it gives to the further development of a professional class of expert witness. With a few notable exceptions, such as forensic science and forensic accountancy, the vast majority of expert witnesses come to court from a busy professional practice. By restricting the scope for an expert to offer just occasional assistance to the court, the decision will concentrate instructions upon those experts who have made a commercial choice to build a forensic practice. This is a double-edged sword. Whilst the greater understanding of their role and duties should ensure the ‘professional’ expert witness will create fewer procedural problems, by excluding the

occasional expert witness the freshness and challenge to dogma that comes with diversity is lost.

Circumspection The Supreme Court heard arguments put that the purpose of immunity was to protect the ready supply of expert witnesses and to give them the confidence to give their full and frank opinions. I would add that immunity was a strong support of an expert’s independence, as required under CPR and its ilk. It also made it easier for an expert to resile from an earlier held position. Without the protection of immunity, expert witnesses may well become more circumspect in their opinions. As Lord Brown puts it: ‘… the most likely broad consequence of denying expert witnesses the immunity accorded to them… will be a sharpened awareness of the risks of pitching their initial views of the merits of their client’s case too high or too inflexibly lest these views come to expose and embarrass them at a later date.’67 Expert witnesses should ensure that they give accurate opinions at all stages of proceedings, and that their earlier opinions are consistent with their later ones. So in this respect the impact of the removal of immunity should be for the good. But expert witnesses will need to be strong in their determination to give only those opinions that are based absolutely on the evidence they have been asked to consider. If a change of opinion is justified by a change in the evidence, there will be precious little for anyone to complain about. But if there are any other reasons for changing one’s mind, the expert will come under far greater scrutiny.

SJE and witnesses

court-appointed

expert

According to the decision, the removal of immunity applies only to claims from those who have instructed the expert witness. So, what of the Single Joint Expert (SJE)? The notion that this role opens an SJE to suit from all parties may cause a moment’s reflection in future! And the position of the courtappointed expert witness is far from clear. However, because this type of appointment is rare, it is of little practical concern.

Slippery slope The majority set the issue before them in the context of what to do with a negligent expert

the barrister

witness. In my opinion, this is a myopic view of witness immunity. In putting a single expert witness centre stage, it strongly encourages the creation of a remedy for a wrong done. But witness immunity has never been about protecting the negligent but about protecting the public. In focusing so intently on what to do about the rare example of an expert witness who has been negligent, the Supreme Court has handed down a decision that threatens the very foundation of witness immunity. There have always been exceptions to the immunity rule: perjury and contempt have a long lineage; wasted costs orders and professional disciplinary actions are recent additions. As Lady Hale pointed out, these exceptions are there to oblige the witness to perform his duty to the court. But the Supreme Court decision is a radical departure from these existing exceptions – it has been made to protect the interests of the client. To do this on no ‘secure principled basis’ is all the more troubling. When the Court of Appeal removed immunity from advocates a decade ago, it could not have foreseen its actions being used to justify the removal of immunity from expert

witnesses today. As Lord Hope has said, ‘… one thing leads to another. Removing just one brick from the wall that sustains the witness immunity may have unforeseen consequences’. By way of exploring this concern further, Lord Hope said ‘Lord Phillips does not see why an expert should be concerned that performance of his duty to the court will result in his being sued for breach of duty to his client: para 56. But this assumption contradicts the justification for the immunity that is extended to witnesses generally, which is that there are grounds from time to time for believing that the fear of suit exists. If he is right, there are seeds here for challenging the whole concept of witness immunity.’157 This decision is described by Lady Hale as ‘experimental’. We will have to wait and see if the experiment has the benign outcomes predicted by the majority. Having myself worked with the Law Commission on their careful deliberations on the admissibility of expert evidence in criminal proceedings, I am perhaps predisposed to see value in that body’s approach to tackling difficult questions. If this unprincipled decision from the Supreme

Court does, in practice, result in a serious chilling effect on the availability of expert witnesses, we may end up in another decade with the Law Commission looking at how to change the law to encourage a ready supply of expert witnesses back into court. How much better if we had instead asked the Law Commission today how best to provide a remedy for the rare wrong perpetrated by a negligent expert witness.

Superscript numbers refer to paragraph numbers in the judgment.

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the barrister

will need to use and therefore there

changes may not bring about the most

place so that appointments are made directly

appears to be limited public support.

change. In the midst of the Green Paper are

electronically?

Indeed the popular press love a good

just over two pages flagging up what could

story about an ‘unworthy’ person receiving

be a very profound change – a mandatory

It is interesting to note that even those

phone gateway. There are very few details in

agencies that run phone services already e.g.

the Green Paper and when we submitted our

Citizens Advice and Shelter do not agree with

response we asked for a detailed consultation

this proposal. For extracts, see Justice for

on this proposal. Why?

All’s publication “Saving Justice2. “

p.1

legal aid to fight an ‘unmeritorious’ case. Yet, as we all know, or every controversial case there are many hundreds of thousands of uncontroversial cases delivering sensible outcomes to people who need the services provided by the legal aid scheme.

Legal advice and representation is at present available subject to what is in scope and

Who will be excluded?

what a person’s financial position is. After

Interestingly, Legal Action Group carried out a survey recently on social welfare law which identified much higher levels of support for legal aid than previously anticipated1.

What are the Government’s Proposals? Taking areas of law out of scope Much has been written about what the government wants to take out of scope including much family law (unless there

that is resolved the choice of lawyer is theirs.

The

Under the current proposal it is possible for

that 547,000 fewer clients will be helped3

someone to go to their local solicitor’s office,

(compared to 2008/9). Legal help cases will

ask to see someone who has dealt with them

reduce by 68% and legal representation

before and be referred on to the mandatory

cases by 44%4.

Government’s

Green

Paper

stated

phone line and not be allowed to instruct the lawyer or advisor of their own choosing.

However in another piece of work by Legal

Indeed in 86% of all cases, the Government

Action Group their estimate is that this

suggests, the client will never end up actually

number will be even higher5.

seeing a lawyer or adviser face to face as the entire matter will be resolved by phone.

Equality of Arms (or as the US puts it Equal Justice under Law)

is domestic violence), immigration law, a debt

There is a difference between the Community

matters where the client’s home is not at

Legal Advice service which is currently

In LAPG’s response to the Green Paper we

risk, all welfare benefits work, education,

in existence which has a triage system,

argued that

employment and clinical negligence.

specialist advisers and has some capacity

considerable

amount

housing,

There is a good summary in the Legal Aid Reform: Scope Changes Impact Assessment MOJ028 dated 15 November 2010 on pages 7 and 8 or a fuller explanation on pager 19-38.

for conducting to casework to a mandatory phone service which is the only way into the legal aid scheme.

government ensures that those with a legal dispute can access an effective means of resolving the dispute. If the law is complex, if procedures are complex, if the other side can

If the government brings in a mandatory

afford legal advice and representation, we do

phone line which everybody has to contact

not believe that there is equality of arms. And

These areas of law are all enormously

and which offers casework by phone, that

important.

could mean

The Government’s own Impact

“We believe that it is important that the

if that person is more vulnerable – which the government’s paper confirms – then it is even more difficult to accept that these proposals

Assessments, published with the Green Paper

-that vulnerable people will not be advised by

look at what might result from the removal

anyone they choose

in England and Wales.”

of effective intervention: reduced social

-that firms and organisations like law centres

Roger Smith of Justice has in a recent

cohesion,

reduced

may struggle to deliver remaining face to face

meeting flagged up what is written a phrase

business and economic efficiency, increased

work if the legal aid fund is weighted towards

engraved on the front of the United States

costs for other Departments. A good example

telephone advice

Supreme Court building

of the latter is that people who previously

-that reputation will count for nothing

received legal aid might use up their own

because there is little client choice

savings getting advice and assistance and

-that we have no idea how clients who do

then end up passing a benefits threshold.

need face to face advice will be directed to

increased

criminality,

offer any fair mechanism to resolve disputes

“Equal justice under law". This seems to us a fundamental problem with the Green Paper proposals. While there may be many changes that will enhance a

advice agencies or lawyers. Will there be a

fairly balanced justice system, to remove so

The telephone gateway

rota? Will you have to take on a client who

much legal aid at this stage, meaning that

Game changing as they are, the scope

is referred? Will there be an infrastructure in

many people will not pursue their cases or

the barrister

will pursue them with possibly no advice and

struggle to present their cases, on judges who

go to www.justice4all.org.uk. You may also

with no representation, that means that our

will have to spend more time on these cases

like to contact the author to sign up to events

society becomes even more unfair.

but will create a backlog for everyone using

run by the All Party Parliamentary group on Legal Aid6.

the courts. Stephen Cobb QC, chairman of the Even where the proposals are likely to be

Family Law Bar Association, said: â&#x20AC;&#x153;We fear these attempted cuts, being so

It is a bitter irony that when the government

crude and brutal, will cost more than they

stresses the importance of localism that

save.

access to justice through local providers

"They will trigger a surge in DIY litigants

competing by reputation will be the casualty

disputes resolution works best in the shadow

which risks gridlock in the courts, as they

of these savage cuts. However difficult the

of the court. Without the ability to litigate to

struggle to get justice.

widely supported if properly thought through e.g. better access to mediation in the whole civil system, there has to be an understanding that mediation and all forms of Alternative

enforce a mediated settlement or to go to court if one person refuses to mediate or is using the mediation system to e.g. delay the process, mediation is

not going to be the

answer the Government hopes for.xs

What next? We do not know when the government will respond to the Green Paper responses. Any major changes will require primary legislation, although the Government will

Litigants in Person

want to bring in some of the proposals with

The Green Paper plays down what seems

as little parliamentary scrutiny as possible.

clear to most users of the court system, namely

The Bar Council and The Law Society will be

that if people do proceed with their cases,

working hard on this. If you are interested

without advice and without representation,

in taking steps to discuss these issues with

there is going to be a considerable additional

your MPs and with Members of the House

strain on court officials and the judiciary.

of Lords please do so and if you would like

This will impact not only on those who

to sign to the Justice for All campaign please

task appears it is still our hope that our collective effort may induce the government to think again. Carol Storer, Director, LAPG 1 Legal Action Group Social Welfare Law What is Fair www.lag.org.uk/socialwlefarelawsurvey 2 www.justice4all.org.uk page 7 Saving Justice. Where next for legal aid?â&#x20AC;? 3 Legal Aid Reform: Scope Changes impact assessment 028 4 Legal Aid Reform: Cumulative Legal Aid Reform Proposals 036 paragraph 41 5 FIND REFERENCE!!! 6 www.appg-legalaid.org Contact carol.storer@ lapg.co.uk and we will email you parliamentary information and dates of meetings.

the barrister

the best efforts of staff, they are

as court disposals where women can address

For women, the successful project run

almost

the causes of their offending, get out of debt,

by Together (Working for Wellbeing) out

damaged, more vulnerable and less

gain safe housing and employment skills,

of Thames Magistrates’ court, staffed by

break addictions and take responsibility for

women practitioners, is a model that could

themselves and their children. Reductions

When women do go to prison it has a huge

in the use of remand and breach of license

Information gathered by local Women’s

impact on family life because most are

and a new emphasis on restorative justice

Institute members as part of the National

primary carers. As to their children, though

are in prospect. Attention still needs to be

Federation of Women’s Institutes ‘Care not

only a minority are taken into local authority

paid to reducing the high numbers of foreign

Custody’ campaign could also be used to

care, most are farmed out to relatives and

national women in prison, many of whom

inform the programme.

friends, just 5% of children stay in their

have been trafficked into offending.

p.1

bound

emerge

able to take responsibility for themselves.

own homes when their mum goes to prison.

considered

for

extension

nationally.

The government’s plans for better treatment

Imprisonment will cause a third of women

The

for drug addiction in the community, properly

prisoners to lose their homes, reducing

national network of liaison and diversion

resourced and implemented, could also

future chances of employment and shattering

schemes at police stations and courts by

benefit the high numbers of women whose

family ties. Ministry of Justice figures reveal

2014 are particularly welcome given the

offending is driven by a drug dependency.

that more than half those released will re-

disproportionate number of women offenders

High rates of alcohol misuse by women,

offend within a year of release.

with a mental health need. The partnership

often in conjunction with existing drug use,

between the Department of Health, the Home

indicate the need to take a distinct approach

Prison is not only ineffective in very many

Office and the Ministry of Justice should

to tackling hazardous drinking. Wherever

cases, it is also expensive. The average cost

ensure that many of those with mental health

possible, treatment should be provided in a

of a women’s prison place is £54,000. By

needs and learning disabilities are diverted

safe, women-only environment with facilities

contrast, an intensive community order could

from the criminal

cost in the region of £10,000 - £15,000.

justice system into

government’s

proposals

for

treatment and care, Things can be done differently. The Women’s

with

Justice Taskforce was established in 2010

benefit of improving

on a time-limited basis by the Prison Reform

health and reducing

Trust, supported by the Bromley Trust, to

crime.

the

two-fold

consider the needs of women in the criminal justice system and what additional activity

Lord

could be undertaken to maximise the benefit

review

of work already underway in this area.

with mental health

The problem of women’s justice has been

problems or learning

well mapped by the Wedderburn, Fawcett

disabilities

and Corston reviews and the Taskforce

criminal

has drawn considerably on their analysis

system profiles good

and on previous recommendations.

practice

Government’s

proposed

reform

for

The the

the

Bradley’s of

people

the

justice

and

sets

direction

for

criminal justice system, outlined in the recent

effective liaison and

Green paper on Breaking the Cycle, provides

diversion

a timely opportunity to look again at how

The

women’s justice might be framed within the

should learn from

broader criminal justice reforms.

the

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schemes.

government

good

practice

already in existence On a practical basis there is considerable

scope, and public and parliamentary support,

commissioning

for the development of local women’s centres

national

designing

and the

scheme.

 020 7489 0291  admissions@clsb.org.uk www.clsb.org.uk

the barrister

for childcare. This is important for the high

Lord Phillips, Master of the Rolls (at para.79)

has said, “If the court does not have sufficient

proportion of women offenders who have

stated: “It goes without saying that since

information about the likely consequences

been victims of domestic violence and sexual

October 2, 2000 sentencing courts have been

of the compulsory separation, it must, in

abuse.

public authorities within the meaning of s.6

compliance with its obligations under s.6(1),

of the Human Rights Act. If the passing of a

ask for more”. In addition, having obtained

Some of the government’s proposals on

custodial sentence involves the separation of a

information on any dependent children, they

sentencing could also stem the high numbers

mother from her very young child (or, indeed,

must balance the needs of any such children

of women unnecessarily sent to prison. Over

from any of her children) the sentencing court

against the seriousness of the criminal

half of women entering custody each year

is bound by s.6(1) to carry out the balancing

offence when sentencing mothers who are

do so on remand. These women spend an

exercise identified by Hale LJ in In Re W & B

primary carers.

average of four to six weeks in prison and

(Children) at para.54, especially at subpara.

nearly 60% do not go on to receive a custodial

(iii) … before deciding that the seriousness of

In a welcome move, the Sentencing Council,

sentence.

Remand can have a devastating

the offence justifies the separation of mother

in publishing its first guidelines on assault,

impact on women’s lives and those of their

and child. If the court does not have sufficient

has recognised an offender’s status as “sole

children.

information about the likely consequences

or primary carer for dependent relatives” as

The government has proposed to remove the

of the compulsory separation, it must, in

a mitigating factor in sentencing.

option of remand for defendants who would

compliance with its obligations under s.6(1),

be unlikely to be given a custodial sentence

ask for more. It will no longer be permissible,

There is an unequivocal case for a reduction

if they were convicted. If implemented, this

if it ever was, for a court to choose a custodial

in the use of imprisonment for women and

could reduce the large numbers of women

sentence merely because the mother’s want

the re-investment in effective alternatives to

received into custody pending trial for

of means and her commitments to her

custody that can command the confidence

comparatively low level acquisitive crime and

children appear to make a fine or community

of the courts. Indications are that the

those remanded in order primarily to ensure

sentence inappropriate, if the seriousness

government is listening to the Corston

the preparation of a psychiatric assessment.

of the offence does not itself warrant a

Coalition of charitable funders, plans to

custodial sentence. In such circumstances

sustain women’s centres and is expected

Women’s

it must ensure that the relevant statutory

disproportionate impact on children given

imprisonment

can

have

authorities and/or voluntary organisations

Women’s Justice Taskforce on strengthening

the large number of women who are mothers

provide a viable properly packaged solution

leadership,

and carers. The UK has signed up to the

designed to ensure that the mother can be

It is time to reserve women’s prison places

Bangkok Rules which state that a woman’s

punished adequately for her offence without

for serious and violent offenders, return to

current childcare responsibilities should be

the necessity of taking her into custody away

proportionality and fairness in sentencing

a consideration as part of the sentencing

from her children.”

and cut the unacceptably high social and

decision by courts.

welcome

recommendations

structure

and

the

accountability.

economic cost of custody.

R. v. Joanne Mills [2002] EWCA Crim 26 It

important

note

two

judicial

pronouncements on the balancing exercise

(see: http://www.bailii.org/ew/cases/EWCA/

Juliet Lyon CBE is Director of the Prison

Crim/2002/26.html)

Reform Trust and a former member of the

which has to be conducted when a woman

Corston Review and the Women’s National

who is the carer of dependent children is

The Lord Chief Justice, Lord Woolf of Barnes

convicted of an imprisonable criminal offence

said: “with a mother who is the sole support

– weighing the article 8 rights of the parent

of two young children, as is the case here, the

and child and the seriousness of the offence.

Judge has to bear in mind the consequences to those children if the sole carer is sent to

R (on the application of P and Q)

prison”.

v. Secretary of State for the Home Department [2001] EWCA Civ 1151

Following these two leading cases, sentencers

(see:

should be aware of their duty to acquire

www.bailii.org/ew/cases/EWCA/

Civ/2001/1151.html)

information on whether the defendant has young or dependent children. As Lord Phillips

Commission

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

the barrister

"Where now for testamentary freedom?" By James Aspden, Wilsons Solicitors LLP

His

method that meant it would afterwards be

testamentary

decision to disinherit his daughters without

impossible for the validity of the Will P had

freedom

apparent explanation, a decision the Court

made ever to be tested?

have

England Wales

for

enjoyed

his testamentary capacity effectively.

and

of Appeal considered to be objectively

many

irrational, was therefore used to lay the

The subsequent decision in Re G (TJ)

years, subject of

foundations for a finding that the testator

[2010] EWHC 3005 (COP), which concerned

course to the restrictions imposed first by

lacked testamentary capacity. In effect (and

lifetime gifts rather than a Will, may signal

the Inheritance (Provision for Family and

of course it was not quite that simple) the

a recognition of the danger inherent in the

perceived irrationality of that decision was

‘doing the right thing’ test: its subjectivity.

taken to be a sign pointing to underlying

What is the ‘right thing’ to one of P’s relatives

incapacity.

may be entirely the opposite to another.

‘Best interests’

Ilott v Mitson and the 1975 Act

Under the Mental Capacity Act 2007, the

Ilott v Mitson was a claim by Heather Ilott

Court of Protection is required to consider

against the estate of her mother, Melita

P’s ‘best interests’ when consider making a

Jackson. In 1978, Heather Ilott left home in

Statutory Will.

the night to go and live with her boyfriend,

Dependants) Act 1938, and later by its more broad-ranging successor, the I(PFD)A 1975. We were allowed to leave our estates to whomever we liked. We could be eccentric, capricious or foolish; that was our right and the law supported it. Recent caselaw makes it legitimate to ask certain questions regarding these rights. For example, has the boundary between

Nick. She was 17 at the time and had lived

eccentricity (allowed) and irrationality (a

In the case of Re P [2009] EWHC 163 (Ch),

with her mother, Melita, for the whole of

possible sign of lost testamentary capacity)

Lewison J held that one of the factors to

her life. Heather left no note; she did not

been blurred to such an extent that bequests

take into account when considering P’s best

want to be traced. When Melita found out

a Judge considers morally repugnant will be

interests was that P would want to be seen to

where she had gone, Heather refused to

labelled irrational, causing the Will in which

be ‘doing the right thing’. Munby J endorsed

have anything to do with her. This sequence

they are contained to fail? Does the Court

that approach in Re M – ITW v Z [2009]

of events was to mark the beginning of a 26

of Protection’s use of the ‘best interests’ test

WTLR 1781, stating that we “have an interest

year estrangement that ended with Melita’s

when considering applications for Statutory

in being remembered as having done ‘the

death in 2004.

Wills on behalf of incapacitated people allow

right thing’, either in life or, post mortem,

a Judge to replace eccentric Will-making with

by Will.”

A couple of years before she died, Melita made a new Will leaving her estate to three

his or her own view of what is right? Does the Court of Appeal’s latest interpretation

The case of VAC v JAD [2010] EWHC 2159

charities for whom I acted. Melita’s solicitor,

of the 1975 Act, in Ilott v Mitson [2011]

(Ch) developed this idea further, appearing to

realising that this decision might provoke

EWCA Civ 346 (a case with which I was

show the Court of Protection using its power

a claim by Heather after she had died,

involved), mean that a testator’s choice of

to disregard the provisions set out in what

advised Melita to prepare a letter explaining

was, on the face of it, a valid Will. Doubt

why she had made that decision.

was cast over whether P had capacity to

determination was such that she went even

make that Will. The Court of Protection did

further.

not have jurisdiction to rule on that, nor the

know that she would receive nothing and she

evidence needed to effectively investigate P’s

instructed her executors to fight any claim

capacity when making the earlier Will.

Heather might bring. After Melita had died,

beneficiary will now have a profound effect on the likelihood of a claim under that Act succeeding?

Eccentricity v irrationality The Court of Appeal’s decision in Sharp v Adam [2006] WTLR 1059 illustrates how difficult it can be in practice to avoid allowing subjective disapproval of the testator’s Willmaking decisions to colour the process of investigating testamentary capacity. The deceased had suffered from multiple sclerosis.

As a result, his ability to

communicate was very limited.

It was

correspondingly difficult for anyone to assess

Melita’s

She wrote to Heather to let her

Heather began a claim against her estate, as Rather than assuming the Will was valid

feared, under the 1975 Act.

in the absence of a ruling to the contrary, however, the Court of Protection chose to

It is easy to sympathise with Heather’s position.

disregard the provisions in the earlier Will

Her mother disinherited her thanks to an

when making a Statutory Will for P.

The

estrangement that each of them perpetuated

justification for this was that P would not

in their own way. But does that mean that it

have wanted to bequeath a Will dispute to

was right to go against Melita’s Will?

his beneficiaries; that would not be ‘doing the right thing’.

But was that adequate

Perhaps more important for the future will

justification for replacing P’s existing Will with

be the perception that the Court of Appeal’s

one making quite different provision, using a

decision changes the fact that the estate is to

the barrister

pass to beneficiaries who do not ‘need’ the

These may be signs of a fundamental change

In each of Sharp v Adam, VAC v JAD and

money from a neutral consideration (as

of outlook since the 19th century. Compare,

Ilott v Mitson, the method differed but the

established in Cameron v Treasury Solicitor

for example, Sir John Hannen’s summing up

principle behind them appears to have been

[1996] 2 FLR) into something that positively

in Boughton v Knight [1873] L.R. 3 P. & D. 64:

very similar.

helps a claim to succeed (see paragraph 91

Each Judge thought that the

testator whose estate they were asked to

of the Court of Appeal’s Judgment in Ilott

…by the law of England everyone is left

re-distribute had made the wrong choices.

v Mitson).

Eccentricity and foolishness in

free to choose the person upon whom he

Each then exercised their powers to ‘correct’

Will-making are not often alleged where a

will bestow his property after death entirely

what the testator had done, to achieve

Will leaves the estate to individuals who

unfettered in the selection he may think

what was then described as an outcome

proper to make. He may disinherit, either

necessitated by objective considerations, but

wholly or partially, his children, and leave his

which was arguably rooted in matters that

property to strangers to gratify his spite, or

were in reality subjective.

demonstrably need it, so are claims under the 1975 Act in danger of becoming another method by which to require testators to make ‘sensible’ Wills?

A right to spite?

to charities to gratify his pride, and we must give effect to his will, however much we may

So are we still allowed to be eccentric or

condemn the course he has pursued.

spiteful when making a Will? The answer may be that we are not, and further guidance

At first instance in both in Ilott v Mitson and in the much talked-about case of Gill v Woodall

Public response to Ilott v Mitson suggests

will be needed if we are to have an obligation

[2010] EWCA Civ 1430, the suggestion was

disillusionment with the modern judiciary’s

to explain the contents of our Wills if they

made that the testator decided to leave their

apparent readiness to interfere in such

are to be respected. Where does that leave

estate to charity, not to their daughter, to

personal matters. It also suggests that many

freedom of testamentary disposition and

spite the daughter. Neither testator had left

are wondering whether it is worth bothering

where should the line now be drawn?

a clear explanation why they had chosen

to make a Will at all, if it can be overturned

to benefit the particular charities identified

after your death by a Judge who does not

James Aspden is a partner at Wilsons

in their Will. It is not clear to what extent

agree with the choices you have made, or who

Solicitors LLP in the Contentious Trust and

this consideration influenced the decision

does not share your view that your children

Probate team

reached in each case at first instance, but it

can be expected to fend for themselves once

does seem to have been something that was

they reach adulthood, if they are not mentally

at least taken into account.

or physically incapable of finding work.

the barrister

The Ultimate Price of Poverty IBA global Insight assesses the socio-economic arguments for death penalty abolition. By Rebecca Lowe

‘

There are no millionaires on death

Stafford Smith is far from alone in this

such instances are ‘rare’. He also points

row’ goes the mantra, oft-repeated

opinion.

out there is no conclusive evidence anyone

among death penalty abolitionists.

defence attorneys working on death row will

It sounds glib, yet across the

eagerly recount tales of flawed and feckless

United States, evidence suggests

capital trials – horror stories of innocence

‘Though the conventional wisdom says the

the poorest are indeed paying the

ignored and justice violated. Their view is

defence is threadbare, the lawyers don’t know

highest price.

skewed, of course, by the nature

of their

what they are doing and the prosecution is

Death, like life, it seems, is essentially unfair.

position, and often fails to reflect the many

well funded, that’s just not true,’ he says. ‘It

Even hardened pragmatists, who may not

cases where the rule of law is carefully

probably was 20 years ago, but not anymore.

flinch at depriving a brutal murderer of his

and conscientiously applied. But, considering

I am regularly outspent ten or 20 to one.’

life, often concede that the law surrounding

what is at stake, many are concerned that

Marquis admits, however, that his expertise

capital punishment is both flawed and

any such cases exist at all.

is limited to Oregon, ‘which probably spends

When

prompted,

criminal

innocent has been executed.

more money than any other state’, and that

ineffective. One case involves Linda Carty, currently on

‘some states still pay a lot less than others’.

The problem is not simple prejudice – though

death row in Texas for the 2001 murder of

Richard Dieter, Executive Director of the

this too plays a part – but stems from the

Joana Rodriguez. After what was described by

Death Penalty Information Center (DPIC),

economics of the judicial system, in which

Reprieve as ‘a catastrophically flawed trial’,

a non-profit anti-death penalty website,

the poor are reliant on the limited coffers of

in which an ‘utterly implausible’ defence

agrees. Though the quality of representation

state aid for representation, while the rich

was mounted by a lawyer with 20 death row

has improved significantly in the past ten

retain the top talent for themselves.

convictions to his name – the most of any

years, he says, stringent standards proposed

attorney in the US – the British grandmother

by the American Bar Association (ABA) are

Clive Stafford Smith, founder of human rights

was sentenced to death in February 2002,

yet to be adopted by the majority of the

NGO Reprieve, is clear on the matter. ‘The

and is now reliant on the Pardons Board and

35 retentionist states and even competent

death penalty is not for the worst criminal,’

Governor of Texas for clemency.

lawyers are often prevented from doing a good job by lack of funds.

he says, quoting fellow attorney Stephen Bright. ‘It’s for the person with the worst

Indeed, the issue of capital punishment has

lawyer.’

long been under scrutiny in Texas, which

‘The ABA has outlined the goals to shoot for,

was responsible for 41 of 98 nationwide

but very few states are willing to do that. To

Stafford Smith, who has saved more than

executions in 2009–10. In 2002, murder

do it you would have to pay lawyers a lot

300 people from death row and last year won

defendant Calvin Jerold Burdine, whose

more to get the requisite experience, and

the IBA Human Rights Award, claims ‘it’s not

attorney slept through parts of the trial,

you’d need a team of four or five specialists

that hard to persuade 12 jurors not to kill

gained a last-minute reprieve from the

for each case. These things are not always

somebody’.

Supreme Court after surviving six execution

done when a public defender has ten other

dates and losing three federal appeals.

cases going on at the same time.’ States with relatively well-funded public

‘But you’ve got to do your work,’ he stresses. Josh

Marquis,

such

Oregon

District Attorney for Astoria, Oregon, who

and California, experience their own set of

when you look at lawyers, the most effective,

is on the Board of Directors of the National

problems. Because of the high standards set

high-powered

huge

District Attorney Association, admits that

for counsel, demand far outweighs supply; a

corporations. The person whose life is at

‘there have been instances of innocent people

recent estimate suggests that more than 100

stake is killed.’

on death row, no question about it’, but says

of the 700 death row inmates in California

represent

supporter

programmes,

Death

know what you’re about. And, unfortunately,

lawyers

penalty

defender

‘You’ve got to be prepared and you’ve got to

the barrister

are currently without counsel for their direct

Others point out the trauma inflicted on both

legal aid to death row prisoners in Caribbean

appeal.

defendants and victims during the decades-

countries. ‘You would have to convince me

long wait for their appeals to be heard.

that criminal justice was science.’

‘If there is a problem with capital litigation,

Amnesty

Rick

Whether abolition is on the horizon is

it is not during the trial itself, it is during

Halperin doesn’t mince his words where

difficult to judge. Most staunch advocates

the appeals process,’ says death penalty

the death penalty is concerned: ‘Capital

give forecasts ranging from ten to 50 years,

supporter Michael Ramos, District Attorney

punishment is class warfare against the poor.

in the hope capital punishment will soon be

for San Bernardino County and President of

It doesn’t approach anything associated with

as much an anachronism as slavery. Global

the California District Attorneys’ Association.

justice. It is about money, race and power.’

trends seem to support this view. In 1977,

‘The delay in appeals is very frustrating for

One well-documented bias is that against

only 16 countries had abolished the death

everyone involved.’

African–Americans. Since 1976, 15 white

penalty for all crimes; in December 2009,

International

USA

Chair

people have been put to death for killing

the figure stands at 95, and more than two-

Despite these problems, Marquis and Ramos

black people, compared to 246 black people

thirds of countries have abolished the penalty

are adamant that capital punishment is fair,

killed for murdering whites, according to

in law or practice, according to Amnesty

pointing out that only one in 800 murderers

the DPIC. It is statistics like this that have

International.

receive the penalty, so it is reserved for

convinced many non-ideologues, like Michael

the very worst offenders. For Ramos, the

Radelet, sociology lecturer and death penalty

Considering

justification is simple – ‘an eye for an eye’,

expert at the University of Colorado, to

practice is in the legal and social infrastructure

he feels, ‘is justice for taking someone’s

become vehement abolitionists.

of so many states, many activists could be

how

deeply

embedded

the

accused of a somewhat blinkered optimism.

life’. For Marquis, it is a ‘cost–benefit analysis’, the prospect of due process error

‘The question is not how you support the

It is clear, however, that abolitionists have a

counterbalanced by the potential lives of

death penalty in theory, but how it is actually

passion, focus and coherence lacking from

innocent victims saved. Capital punishment,

applied,’ says Radelet. ‘If the world were

their opponents – and they will not stop

he believes, acts both as a general and

a fair place, maybe it would be different.

fighting until their objective is achieved.

specific deterrent, the latter meaning that the

But that would be the death penalty in

‘You rarely see people actively campaigning

particular person convicted will never have

DisneyLand. If applied equally, it would be

in the street to keep the death penalty, do

the opportunity to kill again – as happened in

the only thing in the US that is.’

you?’ says Emmanouil Athanasiou, Asia Programme

the cases of Kenneth McDuff, Robert Massie

Officer

the

International

Reform or rejection?

Federation for Human Rights. ‘Anyone who

So what hope is there of nationwide reform

has strong enough feelings to make a stand

‘If you have a system of capital punishment,

– of making the death penalty a fair and

invariably argues against it.’

there are going to be errors,’ he says.

equitable punishment, applied only according

‘But it’s a cost–benefit analysis, and it’s

to the most stringent standards of due

For

something we do in our societies all the time.

process? For most campaigners, reform is

involved

Pharmaceutical companies are allowed to

not the issue; for them, capital punishment is

www.internationalprobono.com.

produce drugs that kill a small percentage of

an infringement of basic rights, irrespective

people. We don’t ban prescription medicines,

of the crime. Yet even those who simply

Rebecca Lowe is senior reporter at the IBA

we try to do better.’

oppose the penalty as currently practised

and can be contacted at rebecca.lowe@int-

do not place reform high on the agenda.

bar.org.

and Richard Marquette.

information in

pro

on bono

how work

to go

get to:

death

The government lacks sufficient resources to

penalty was briefly ruled unconstitutional

make the requisite changes, they argue, even

A longer version of this article was first

in the US, 138 people have been released

should it have the will to do so.

published in IBA Global Insight, Vol 65 No 1,

from death row after evidence emerged of

‘To convince me reform was an option, you

February 2011, and is reproduced by kind

their ‘innocence’, according to the DPIC.

would have to convince me that everyone

permission of the International Bar Association,

Proponents of the punishment cite this as

had a fair trial and that the system was

London, UK. © International Bar Association

evidence of the system working effectively

infallible,’ says Saul Lehrfreund, Co-founder

2011.

and catching mistakes before it is too late.

of the Death Penalty Project, which provides

Since

1973,

the

year

after

the

the barrister

Notification of the Right to Complain By Justin Valentine, Atlantic Chambers, Liverpool.

ince qualifying as a barrister

complaint is appropriate even though a

Legal

I have had a sense that

client is not met.

Misunderstandings

the regulatory framework

one of proportionality. Other professionals,

under

barristers

dentists, doctors, accountants, pilots, nurses,

In a letter dated 24th February 2011 to

which

However, the issue is

Standards

Board

broad

architects or engineers would presumably

the Bar Standards Board, David Edmonds

Like most

also not object to complaints yet they don’t

Chairman of the Legal Standards Board,

barristers I occasionally had to refer to the

hand out leaflets to everyone for whom they

writes “the requirements currently in force

Code of Conduct, especially in the early years.

undertake work no matter how small.

are not substantially different from what

work

was

sense rational.

However, the regulatory framework was

was required of barristers previously”.

consistent, coherent and comprehensible.

Professionalism

Once you had grasped its central features,

Culture

and

the

Service

He goes on to state that the example of a recent “flyer” would encourage an open

of professionalism, of duty to the lay and

response to clients’ needs “whenever they

professional client and to the court, you felt

The illogicality of this requirement is brought

first meet them”. Handing over a customer

you understood it.

into greater focus by considering the ethos

client leaflet at first meeting does represent a

of professionalism on the one hand and the

substantial difference to what was previously

A recent development has eroded my trust

service culture on the other. Barristers work

required since it imposes a customer service-

in the rationality of the Code as a result of

within a system of justice.

orientated paradigm on the relationship from

other organisations that can now dictate its

not the mouthpiece of the client. There is a

content, namely the requirement to inform

process involved in conducting any hearing.

all lay clients in writing at the point of

A service is being provided yet at the heart

In addition, Mr Edmonds misunderstands

engagement of their right to complain about

of that process lies a series of relationships,

the contents of the Code of Conduct with

the barrister at his or her chambers and to

with the lay client, with the professional

respect to complaints and of many barristers’

the Legal Ombudsman.

client, with the opponent and with the judge.

work.

unnecessary,

That development

disproportionate

A barrister is

and

inconsistent with the ethos of professionalism.

the outset whatever the context.

The requirement is not limited to

clients who barristers meet; clients must be The dynamic between barrister and lay

notified of their right to complain “at the

client is complex and context-dependent.

time of engagement”. I probably meet less

There is little point in informing a lay client

For example, the relationship between a

than 5% of the lay clients who I undertake

of their right to complain when (a) they don’t

barrister and a defendant in a magistrates’

work for. It would make better sense if the

know who I am, (b) they are never likely to

court is very different to that between a tax

requirement did only apply to when a client

meet me, (c) their understanding of what I do

barrister and a company. In many criminal

is met. It is astonishing that the Chairman

is imperfect to say the least and (d) they have

or family law contexts handing over a sheet

of the Legal Standards Board appears not to

no objective means to assess my work.

informing the client of their right to complain

know that in certain areas and for certain

is inappropriate and baffling to the lay client.

types of work barristers do not generally

For example, as a personal injury practitioner

meet the lay client.

I regularly advise in writing on quantum or

The Code of Conduct implicitly recognises the

on liability. In the majority of cases the claim

complexity of the barrister’s role and is non-

As far as I am aware, no evidential basis

will not be litigated. Or I may represent a

prescriptive as to the relationship the barrister

has been given for the introduction of

client at a case management hearing where,

forges with the client.

this provision.

again, the client does not know who I am

a set of ethical and practical rules it must

subject the Legal Standards Board to the

nor has any way to assess the quality of my

follow. It is a far more apposite system for

same service ethos, ie to view, by analogy,

work. On what basis could a client complain

the regulation of conduct than the imposition

the Legal Standards Board as a service

in these situations? And, if there is no basis,

of a service ethos which is dogmatic as to

to barristers.

it is pointless to send a letter out.

the nature of the relationship ignoring the

following failings, presumably unforgiveable

Of course, there may be cases where a

complexity and context of the work.

if a barrister committed them, failure to

The Code provides

It would be interesting to

That would expose the

the barrister

provide any evidence for the scope of the

is below the required standard the remedy

Justin Valentine,

requirement, failure to consult, failure to

is a professional negligence claim.

Atlantic Chambers, Liverpool.

listen to constructive criticism, failure to

providing a leaflet that explains neither of these

understand the context of the work being

avenues of recourse and which particularly

provided, failure to appreciate the practical

omits guidance as to “when a complaint is a

difficulty and expense of compliance, failure

complaint” and merely informs the lay client

to demonstrate flexibility and openness to

of the right to “complain” is absurd.

reasoned

objections.

Presumably,

Merely

the

requirement is perceived to be self-proving

Administrative Cost

and any objection is evidence of die-hard attitudes to change.

Failure properly to

Barristers chambers do not keep lay clients’

adduce evidence of a required change or

addresses. The Solicitors Regulation Authority

properly to engage or reason with those who

has confirmed that solicitors are under no

must comply with that change is ideological.

obligation to assist barristers in contacting clients directly.

Briefs must therefore be

It is not objectionable that a barrister can be

sifted through to locate the client’s address

complained about for breach of the Code or

which although not impossible, nor wholly

practising in a sub-standard fashion; the issue

impractical, has significant administrative

is one of proportionality and consistency with

repercussions. This requirement is misguided

the ethos of professionalism.

and should be amended or removed.

For a breach

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the barrister

Should it be compulsory to seek pro bono costs? By Sam Kershaw; LPC student, BPP (Manchester)

he advent of Section 194

there will be a huge increase in the number

Conditional Fee Arrangement, this has been

of the Legal Services Act

of ‘litigants in person’ who will be unable to

dismissed owing to tax issues raised by HM

heralded a turning point

gain access to the services of a lawyer.

Revenue & Customs.

for costs recovery in pro

As such, there are limited alternative avenues

bono-assisted cases. By

Therefore, the case for mandating the seeking

to pursue in dealing with this problem.

permitting a departure

of pro bono costs orders seems stronger than

Whilst a Protective Costs Order (PCO) could

from the indemnity principle, courts were

ever: with the inevitable increase in the use

be applied for by a pro bono claimant at

able to make costs orders as they would

of pro bono services, it is necessary to ensure

the outset of proceedings, it is at the court’s

in normal circumstances. The underlying

costs are obtained wherever possible. By

discretion to grant one for either full or partial

rationale was to provide a counterbalance

facilitating the provision of further services

relief. However, this requires the applicant

against unequal status enjoyed by those

through

Distribution

to satisfy the requirements laid down by the

opposing pro bono representation with a dual

Principles, monies obtained can be used in

Court of Appeal in R (Corner House Research)

benefit being reaped in providing a funding

paying the expenses and salaries of pro bono

v Secretary of State on a case-by-case basis.

stream for pro bono organisations.

organisations, allowing them to help the

Even though the court in this case stated pro

increasing number of clients with nowhere

bono representation would enhance a PCO

else to turn.

application, it does not guarantee it. For

However, according to the Access to Justice

the

Foundation’s

Foundation, only a limited number of pro

example, the applicant would have to prove

bono costs orders have been made under

However, without mandatory seeking of

they have ‘no private interest’ in the outcome

Part 44 of the Civil Procedure Rules since

costs, the current regime will be inadequate

of the case.

they became available in October 2008.

in meeting increasing demands for free

Legal Aid Cuts Whilst

pro

bono

assistance

not

representation given the low-level of costs

In overcoming issues with adverse costs, a

being obtained at present.

proportion of the Foundation’s funds accrued from pro bono costs orders could be used in

replacement to publicly funded help, it is

Spectre of Adverse Costs

purchasing means-tested client insurance

regarded as an important adjunct to legal aid,

Ensuring that pro bono represented clients

similar to After the Event (ATE) policies.

providing access to justice for those unable to

seek costs is only part of the solution

These could protect the client against the

obtain other sources of representation in the

however. To realise the benefits of mandating

consequences of losing and encourage them

private or third sectors.

such a process, it is necessary to deal with

to pursue their cases further.

a significant disincentive to the pro bono Under the current reform proposals by

client: the prospect of an adverse cost order

Distribution Principles

the Ministry of Justice, £350m will be lost

being made against them. Arguably, making

Under

from the existing £2.1bn legal aid budget

it compulsory to seek costs will be of no use

Foundation retains an absolute discretion

with devastating consequences for areas

unless this problem is dealt with. Fewer

when making a decision about distribution.

where

monies will be available for distribution to

Whilst the seventh principle permits the

drastically reduced such as employment and

pro bono organisations if potential clients are

preferences of those associated with the

immigration. The effects are even more acute

dissuaded from fighting their case, owing to

donation to be regarded, the Foundation is

when set against the background of high

the worry of unaffordable legal costs.

not bound by their wishes.

unemployment and radical changes to the

Whilst the government’s consultation paper

benefits system. Indeed, Lord Judge’s recent

on pro bono cost recovery considered the

This was seen as a problem by City Law

attack on the proposed cuts pointed out

use of a pro bono-style ‘no win, no fee’

firms Clifford Chance, DLA Piper and Lovells

support

may

withdrawn

the

Distribution

Principles,

the

the barrister

during the government’s consultation on pro bono cost recovery. Their argument suggested lawyers may be dissuaded from pro bono work in the knowledge cost orders could be made in favour of organisations they have no interest in. While this may be the case for some firms, it does not militate against the case for making it compulsory to seek pro bono costs. Indeed, the consultation exercise also stated the majority of respondents agreed in the principle of a single body to receive and distribute the proceeds of pro bono cost orders.

Even though arguments contrary to the loss of control over distribution can rely on the notion pro bono lawyers expect a non-pecuniary reward for their services, such as distribution to a charity of their choice, there is still ample scope for law firms to receive something in return. Indeed, the very act of offering pro bono representation in the current financial climate can only go to improving the reputation of the legal sector in the eyes of the public, especially at a time when free representation is needed more than ever.

Despite reservations about where costs end up, the Foundation is better-placed to decide where they are needed at a strategic level, permitting a more efficient method of distribution than firms making gifts to charities of their choice. This is

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the barrister

Got a match, Guv? Will the changes recommended by the Law Commission on Expert Evidence improve the understanding of mark and impression evidence? By Professor Allan Jamieson and Dr Scott Bader, The Forensic Institute

he use and abuse of

no forensic method has been rigorously

“I do not doubt that it is possible that such

expert testimony in the

shown to have the capacity to consistently,

comparisons can provide useful evidence.

legal system and the

and with a high degree of certainty,

I am not disputing Mr R’s opinion, but the

assessment

expert

demonstrate a connection between evidence

scientific basis of it. It is my opinion that

testimony has been a

and a specific individual or source. In

the state of development of this expertise is

source of much publicity,

terms of scientific basis, the analytically

insufficient to ascribe any more than a very

debate, opinion, and proposed remedies.

based disciplines generally hold a notable

rough approximation to the probative value

The most recent proposals for the UK

edge over disciplines based on expert

of the evidence, and such opinions cannot be

emanate from the Law Commission

interpretation.”

considered scientific.”

the admissibility of expert opinion. These

In particular, the areas generally termed

This was not the first case in which we

proposals come close on the heels of a

‘marks and impressions’ (e.g. fingerprints,

have

widening concern that both novel and

bitemarks,

being

of the science, as opposed to the specific

apparently established forensic practices

subject to scrutiny as never before. A recent

findings of the expert. This is in contrast to

may not be as reliable as their disciples

example involving footwear marks is the

the traditional ‘fight fire with fire’ approach

suggest; and indeed may not qualify, despite

Appeal of R v T .

where solicitors generally seek a similarly

(LC)

and contained specific proposals regarding

footwear

marks)

are

previous claims, as science.

considered

the

general

reliability

qualified expert from the same field as the This Appeal case involved,

Crown’s witness. As stated by Professor

Much of forensic science is about the

“The extent to which evaluative expert

Jamieson,

matching of items to ascertain if they could

evidence on footwear marks is reliable and

have had a common source (e.g. DNA,

the way in which it was put before the jury.

“It is unnecessary, and probably desirable,

fingerprints, footwear marks, paint, glass,

…

that I am not and do not claim to be a

fibres).

The

some

footwear expert in assessing the scientific

then the evidential value of such a match

importance in relation to the use of likelihood

value of such evidence. I would feel equally

must be assessed.

These two processes;

ratios in the provision of an evaluative

comfortable assessing claims for the validity

matching and assessing significance, are

opinion where the statistical data available

of astrology or psychic phenomena without

the foundation for the reliability of these

were uncertain and incomplete.”

necessarily being a practitioner.”

A recent wide-ranging and authoritative

We had examined all of the evidence in

The Crown expert had provided an opinion

report on forensic science stated,

this case, including the case files created

of evidential strength based on the so-called

in the assessment and analysis of footwear

verbal scale after using what is termed the

and

marks. The Appellant’s case was presented

Bayesian approach, including a likelihood

by Mr James Wood QC who had extensive

ratio. The principles of matching and

Once that match is established,

appeal

raised

issue

evidence types.

“Often civil offered

criminal

litigation, to

prosecutions

forensic

support

evidence

about

discussions with Professor Jamieson. The

significance highlighted in T are also used in

“individualization” (sometimes referred to

general conclusions expressed by Professor

other marks and impression evidence types.

as “matching” a specimen to a particular

Jamieson were,

Despite a perception among some that T

individual

about

“There is no clear basis for the strength

will have a limited effect on other cases, by

classification of the source of the specimen

of evidence derived by Mr R [the Crown

increasing awareness of the parameters of

into one of several categories. With the

analyst], its reliability, nor for the expertise

scientific evidence and the Court’s views, the

exception of nuclear DNA analysis, however,

on which it rests.”

LC recommendations make it likely that the

other

conclusions

source)

the barrister

reliability of other practices will be subject to

and, second, that there were insufficient data

similar challenges.

to support any numerical calculation.

is appropriate (e.g. DNA)

The

data, in which case the use of a LR

Court made clear that an expert was able

Use of Likelihood Ratios

to form an evaluative opinion even without

other term must be used, such as ‘comparative

A likelihood ratio (LR) is a method of

statistics, but that it should not be presented

evaluation’ (e.g. footwear mark) with some

comparing the probability of two things by

as a mathematical calculation such as an LR,

assessment of the significance of the findings.

simply dividing one by the other. If a horse

“However there are cases where it would not

is 10-1 and another is 50-1 then the LR is

be right to confine an examiner (where there

the weight of only one proposition using,

5 (=50/10) that the former horse will win

are solely class characteristics) to opining

again, either,

rather than the latter, and 1/5 (=10/50=0.2)

on whether the mark could or could not have

data (e.g. frequency of glass type)

that the latter will win rather than the former.

been made. There may be factors that enable

experience

Note that the LR compares only those two

him to go further than "could have made"

diagnoses).

horses in this instance. An LR of greater than

and express, on the basis of such factors, a

The

1 favours the ‘top line’ (numerator) outcome,

more definite evaluative opinion. …

recommendations

whereas a LR less than 1 favours the ‘bottom

experience, in which case some

Absolute, where the expert assesses

Law

(e.g.

Commission (at

some

makes 9.11

clinical

extensive

and

9.12)

regarding the assessment of the reliability of

line’ (denominator) outcome. It is simply a

In our judgment, an expert footwear mark

expert evidence.

means of measuring how much more likely

examiner can therefore in appropriate cases

some factors that would cause evidence not to

one thing is compared to another.

use his experience to express a more definite

be admitted, including untested hypotheses,

evaluative opinion where the conclusion is

unjustified assumptions. We have highlighted

The use of the LR in the evaluation of

that the mark "could have been made" by

the difficulties in using experience as a

forensic evidence has been promoted by

the footwear. However no likelihood ratios or

reliable foundation for scientific opinion.

some statisticians and groups of scientists,

other mathematical formula should be used

It remains unclear how experience-based

especially in the UK. They contend that this

in reaching that judgement for the reasons

opinion, devoid of statistical or other proper

is the fair and balanced way to look at the

we have given.”

scientific bases, will meet the criteria such

evidence, by comparing the probability of

The Commission also lists

as being ‘soundly based’, and justifying any

the evidence given the prosecution story

This is at odds with the views of some

proffered evidential strength absent any

or outcome (Pp) with the probability of the

statisticians (and perhaps some scientists)

numerical data.

evidence given the defence story or outcome

who believe that subjective ‘degrees of

(Pd). The LR is then Pp/Pd.

belief’ can be incorporated in the LR.

It therefore must remain a concern whether

identified in R v T, this is not a standard

would appear that it is that specific practice

the judiciary will depart significantly from

having

fully

which the Appeal Court rejects. There was

judgements about the reliability of expert

explored as yet by courts. Indeed, the Appeal

no blanket prohibition on the use of a LR if

opinion such as Atkins where the Court

Court has been quite specific in its rejection

reliable data are available. This is explicit in

stated,

on a number of occasions.

the judgement,

universal

acceptance

However, as

nor

“An expert who spends years studying this It is unnecessary here to consider the

“If there are reliable statistics and data, it

kind of comparison can properly form a

scientific argument regarding the pros and

would then be necessary to consider how

judgment as to the significance of what he

cons of the LR. The argument advanced by

likelihood ratios should be used and how

has found in any particular case. It is a

the defence was mainly that there were no

their use should be explained to a jury.”

judgment based on his experience. A jury is entitled to be informed of his assessment.

data to support any such calculation in this case.

Evaluative opinion

The alternative, of simply leaving the jury to

We can therefore identify evaluative opinion

make up its own mind about the similarities

It is important to understand that in our

as a global category in which the expert

and dissimilarities, with no assistance at

opinion the Court was not prohibiting the

expresses their opinion of the strength of the

all about their significance, would be to

use of an LR in principle. The issues in the

evidence. Evaluative opinion may then be

give the jury raw material with no means of

case were twofold; first, that it had never

subdivided into,

evaluating it.”

been made clear to the trial court that such

an approach had been used by the expert

compares propositions using either,

Comparative, where the expert In our opinion that Court has compounded

the barrister

distinct requirements identified

“The jury should examine the basis of

already practice, will improve the law’s

above (matching, significance). It apparently

the opinion. Can the witness point to a

understanding of the nature of scientific

assumes that the mere experience of looking

recognised, peer-reviewed, source for the

evidence.

at things and identifying similarities and

opinion?”

the two

differences enables a reliable opinion as to the significance of those differences and

But in Weller ,

Professor Allan Jamieson

similarities.

The two elements of forensic

“It therefore seems to us that what this

Dr Scott Bader

assessment, matching and significance, can

appeal demonstrates is that if one tries

The Forensic Institute, Baltic Chambers, 50

only be measured by scientific means.

to question science purely by reference to

Wellington Street, Glasgow, G2 6HJ

published papers and without the practical

info@theforensicinstitute.com

To decide whether two things match (other

day-to-day experience upon which others

than those that patently do so, in which

have reached a judgment, that attack is

case no expertise is necessary) requires

likely to fail, as it did in this case.”

controlled experiments to establish the range of variation within a population and within

In that case, it was the Crown’s reliance on

an individual. No matter how many footwear

‘case experience’ for an opinion that was

marks a person observes, he can never know

an issue in the Appeal, despite the existence

whether they were made by a particular

of controlled experimental data (from the

shoe unless experiments are conducted to

same Crown laboratory) that supported

establish the range of marks that shoe will

an alternative opinion for the case.

produce and what other shoes may produce

judgement appears to ignore the fact that, as

similar marks.

Werner von Braun is credited with saying,

The

“one experiment is worth a thousand expert The human capacity to reinforce subjective

opinions”. In other words, no matter what

perceptions (e.g. why you notice cars of

‘experience’ suggests, a controlled scientific

the same type as yours more often than

experiment provides a reliable test of that

other makes) is one reason why scientific

experience. The NAS report comments,

study

normally

demands

counting

and

Only proper

“However, some courts appear to be loath

counting of features in relevant populations

to insist on such research as a condition

will determine their prevalence and enable a

of admitting forensic science evidence in

reliable estimate of the probability of finding

criminal cases, perhaps because to do

a match by chance.

so would likely “demand more by way of

the assessment of variation.

validation than the disciplines can presently An expert’s experience in establishing the

offer”

fact of a match cannot be used reliably to determine the significance of the match, in

The NAS report was not complimentary

the absence of sufficient statistical data. The

on the topic of the legal system’s ability to

response to Atkins must surely therefore

differentiate reliable from unreliable science,

be that, in such a situation, the jury have

“In a number of forensic science disciplines,

neither expert guidance on the significance

forensic science professionals have yet to

of the match nor the means to establish that

establish either the validity of their approach

significance for themselves, and therefore the

or the accuracy of their conclusions, and

evidence would be inadmissible.

the courts have been utterly ineffective in addressing this problem.”

Contradictions from Court regarding science are not unknown. For example, in Henderson

Only time will tell if the Law Commission’s

the Court states,

recommendations, some of which were

the barrister

Are Historic abuse trials reliable? By Felicity Gerry, Barrister

n April the BBC reported that

complaints are often delayed.

experts have expressed concern that

As with all criminal trials, allegations must

witnesses. Thirdly, judicial direction can cure

offending could be unsafe due to

be tried fairly. Problems arise in old cases

most concerns. The judge retains a discretion

memory errors. Frank Joynson,

where there is no supporting evidence for

to warn the jury of the dangers of convicting

whose case was discussed in File

the sole evidence of the complainant. The

on 4, BBC Radio 4 on 29 March at 2000

statutory requirement to warn a jury not

circumstances make it appropriate to do so

told of his experiences of being convicted of

to convict a defendant on uncorroborated

(R v Makanjuola (Oluwanfunso) [1995] 1 WLR

historic sexual allegations where the Court of

evidence was abolished by s34 CJA 1988 (in

1348). This is generally used in historic cases

Appeal eventually held that the long delay in

respect of children) and the CJPOA 1994),

where witnesses are obviously biased, have

starting proceedings meant that a fair trial

s32 (all cases). Defendants find themselves

been impugned or are otherwise unreliable

had not been possible, no jury direction could

convicted on uncorroborated evidence about

rather than those merely uncorroborated.

compensate him for the prejudice caused

events many years ago and scientists start to

The judge can also warn about the dangers

by the delay and his conviction should

question the value of evidence based on such

of delay. Finally, we must have faith in the

be quashed (R v Joynson (Frank) (2008)

memories. However, we should not assume

jury system. Juries know that memories fail

EWCA Crim 3049). He had maintained his

an allegation is false just because there is no

over time. It is within their experience and,

innocence throughout and described his total

other evidence. What the BBC report perhaps

in most cases; they donâ&#x20AC;&#x2122;t need the assistance

shock at being accused after 40 years in an

failed to recognise was that all cases rely on

of expert evidence to deal with memory. If an

unblemished career looking after children in

memory. In my experience, in every historic

expert gave their opinion on how memories

care. In his case, one accuser had claimed he

case there is a suggestion that a memory

develop or fade, the same expert would

was abused while being made to sit on his

is wrong. The trial process is designed to

have to concede that different people lay

lap but his mother had told police at the time

cater for such eventualities. Firstly, the Court

down memories in different ways. If expert

that the boy had complained about sitting

retains the power to stay an indictment as

evidence were called, a victim might be

on his headmaster's lap - a man previously

an abuse of process if the defendant cannot

required to undergo psychological testing

convicted of abuse some years earlier.

receive a fair trial. In R v F [2011]EWCA Crim

which of itself might unfairly suggest they

726, decided as recently as 24th March 2011,

are unreliable. To routinely introduce expert

There was no supporting evidence and

the Court of Appeal quashed a conviction for

evidence as to memory in a criminal trial

records were unavailable. There is rising

historic sexual offences even where there

would usurp the function of the jury as

public concern in relation to false complaints

was witness evidence that the child had

the inevitable question for the expert would

or false memories which has to be balanced

been seen masturbating the defendant as,

be whether the witness could remember

against

serious

in the end, the evidence was contradictory

or not. After conviction in cases where the

sexual allegations being tried whenever

and relevant records and witnesses were no

uncorroborated evidence of a victim has

they occurred. I recently appeared in R v

longer available. Judges need to be robust

been accepted by a jury, advocates commonly

Hereworth [2011] EWCA Crim 74 where the

in deciding which cases should be left to a

find themselves advising that, unless and

Court of Appeal upheld convictions for rape

jury and which cases should be withdrawn.

until there is fresh evidence to undermine a

and indecent assault against 2 siblings some

Secondly, our adversarial system, which

conviction, there are no grounds to appeal

25 years after the events in question where

subjects witness evidence to rigorous cross

the conviction. Providing a trial has been

witness evidence was compelling and partial

examination, is designed to cater for human

conducted

records remained available. In that case, the

failures. Ask any old lady and she'll tell

evidence is available, this does not necessarily

court reiterated the important public interest

you that she can remember what happened

denote a miscarriage of justice and cases like

in such cases being tried. There would

40 years ago as though it were yesterday.

Mr Joynsonâ&#x20AC;&#x2122;s should be avoided

be a public outcry if we prevented such

You know it's not true and by proper

victims from being heard when experience

questioning you can establish what she can

shows that through fear and embarrassment

reliably recall and what she cannot be sure

public

interest

for

presentation of cases and questioning of

historic

the

convictions

about. Advocates need to be skilled in their

uncorroborated

fairly

Felicity Gerry

evidence

and

where

sufficient

the

reliable

news round up

the barrister

Progress on judicial diversity, but more to do The Government and other members of the Judicial Diversity Taskforce re-emphasised

BAR STANDARDS BOARD APPOINTS INDEPENDENT OBSERVER

their commitment to a more diverse and representative judiciary. Isobel Leaviss has been appointed to the The Taskforce, which includes the Government, Judiciary, Judicial Appointments

position of Independent Observer for the

Commission (JAC) and the legal professions, pledged to maintain the pressure on the

Bar Standards Board (BSB), the regulator of

agenda as they published their first progress report, and will work towards a much more diverse judiciary at all levels by 2020. Welcoming the progress demonstrated in the report, Justice Minister Lord McNally said: 'We need faster progress in delivering a diverse judiciary that better reflects modern society. As the statistics in today’s report demonstrate, we have a long way to go and

barristers in England and Wales. She will be responsible for providing independent assurance that the BSB’s complaints and disciplinary system is operating in line with its aims and objectives and best practice in professional regulation.

we need concerted action from all involved. Isobel studied Politics, Philosophy and It is important that the legal professions continue to maintain a pool of talented individuals

Economics at Oxford University. She started

from a variety of backgrounds and work to publicise the benefits of a judicial career. Our

her career in financial services, training as a

common aim must be to remove the barriers, whether real or perceived, so that we attain

banking supervisor in the Regulatory Division

our goal of improving the diversity of the judiciary by 2020.'

of the Bank of England and as a credit

The Lord Chief Justice, Lord Judge said: 'We are doing everything we can to ensure that the pool of eligible candidates for consideration for judicial appointment is as wide as it can be. There is no reason why everyone eligible should not at least consider a judicial career. The larger the pool, the better potential for a more diverse judiciary.

analyst at Goldman Sachs. Isobel then transferred her skills and experience to the regeneration field when she joined the newly created London Development Agency as its Chief of Staff. Whilst there, Isobel assisted with the London

The Judiciary had already set in motion a number of initiatives before the Neuberger

Olympic bid and went on to play a central

Panel made its recommendations, including opportunities for work shadowing and

role in managing the Olympic Park site

mentoring for newly appointed judges, and we have made further progress in the last

assembly and in the early planning of the

12 months.'

legacy for the Park. During that time she also completed an Executive MBA with the

Chris Stephens, chair of the Judicial Appointments Commission, said: 'Two joint Ministry of Justice and JAC reports show that we are making inroads towards greater diversity. Women are applying and being selected in increasing numbers; black and minority ethnic lawyers are applying in larger numbers and are doing well in entry-level posts and solicitors are performing better in entry and middle ranking posts.

University of Chicago. Commenting on her appointment, Baroness Ruth Deech, Chairman of the Bar Standards Board, said, “I am very pleased that we have found

More needs to be done and the Taskforce members must continue to pull together to

someone of Isobel’s calibre and experience.

maintain and enhance an end-to-end system that is fair, selects only on merit and attracts

She will be instrumental in assuring that our

a higher calibre of candidates from all backgrounds.'

complaints are handled in a fair, consistent and timely manner. Isobel will also be responsible for assuring that our decisions are explained fully and clearly to all parties

In an article in THE barrister Easter 2011 issue titled "A Tale of Two Cities", Dr Michael Arnheim, referring to the right of prisoners to vote in elections, wrote: "In 2004 the Strasbourg Court ruled in favour of a convicted murderer on this issue." This statement was incorrect, as the person in whose favour the court ruling was made had been convicted only of manslaughter. Dr Arnheim apologises to the person concerned for this mistake.

concerned and that cases are transferred effectively, efficiently and appropriately between the us and the Legal Ombudsman. I am glad to welcome her on board”

the barrister

news round up

Build the Big Society behind bars, says charity Opportunities for prisoners to take responsibility and volunteer to help others improves wellbeing and promotes desistance from crime, according to a new report by the Prison Reform Trust. As the Justice Secretary Ken Clarke has stated, currently many people in prison are not encouraged to take responsibility and are compelled to live a life of “enforced, bored idleness”. The Prison Reform Trust report demonstrates that encouraging active citizenship in prisons should play an important part in achieving the government’s aims for a “rehabilitation revolution” and developing the wider concept of the Big Society. It could help achieve the coalition’s plans, outlined in the Ministry of Justice’s green paper Breaking the Cycle, for making prisons places of hard work and purposeful activity. The report, Time Well Spent, by Kimmett Edgar, Jessica Jacobson and Kathy Biggar describes five types of active citizenship: peer support, charity work, restorative justice, prisoner representative duties, and arts and media. The study was based on survey responses from 82 prisons across England and Wales, and interviews with staff and prisoners in 12. The survey found that the large majority of prisons provide at least some opportunities for active citizenship. For example, 95%

of prisons surveyed stated that they have race representatives, and 89% that they have Samaritan Listeners. However, overall, volunteering opportunities are open to very few people in prison. For instance, the study found that four roles involved fewer than five prisoners in the majority of prisons surveyed: housing advisers, employment advisers, violence reduction representatives, and suicide prevention representatives. This means that most of the skills and strengths of people in prison are wasted; they are a huge untapped resource. Volunteering enables prisoners to gain a greater sense of purpose to their time in prison, an increased capacity for responsibility, new skills, earning the trust of others and opportunities to give something back. By developing empathy, building up confidence and a sense of responsibility and focussing their thoughts on the future, active citizenship can provide the skills to help people lead a law abiding life on release. The report’s launch coincides with the BBC’s announcement that it is to broadcast its political panel programme Question Time from inside a prison for the first time on Thursday. Ten prisoners from Wormwood Scrubs and 10 staff will join 100 members of the public in the audience for the panel discussion.

LSB sets out approach to safeguarding quality in the provision of legal services Responding to the Legal Services Consumer Panel, the LSB has announced details of how it will develop its approach to quality assurance in the legal services market. Over the 2011/12 business plan period, specific measures to support Approved Regulators in ensuring quality will include: • New research to better identify risks to quality in the market • The design of a ‘tool-kit’ of regulatory interventions to support quality assurance, with an analysis of the pros and cons of specific measures • The development of a framework to assess the degree of risks to quality. The work will build on the Consumer Panel’s advice that there is a mismatch between consumer expectations and the safeguards over quality that regulation provides in practice. The Board’s action will support the frontline regulators’ capacity to identify risks to quality and deal with them in an effective and proportionate way. Chief Executive of the Legal Services Board, Chris Kenny said: The Consumer Panel has identified quality assurance as an important priority in consumer protection. The Board agrees and will support the Approved Regulators in identifying and acting on risks to quality. As such, this work complements our recent document on regulatory effectiveness, showing how we will seek to work in partnership to develop regulators’ capacity while focusing on what really matters to the public.

Awards Success for Liverpool’s Atlantic Chambers Scott Donovan, head of Atlantic Chambers, has scooped the prestigious Liverpool Law Society Barrister Award 2011. A leader in his field, Mr Donovan is head of Atlantic Chambers’ clinical negligence practice group and is recommended by Legal 500. A graduate of New College Oxford, Scott was recognised for his knowledge and experience in high value personal injury and clinical negligence cases at the society’s gala dinner on Saturday. He is regularly instructed in multi-million pound cases and has a particular specialist knowledge and experience of acquired brain damage cases, involving complex liability and causation issues. Mr Donovan, who is from the Crosby area of Liverpool, said: “I was delighted and honoured to receive the Barrister award 2011 from the Liverpool Law Society.

“This year’s gala dinner was an exceptional event and to have my practice recognised by my peers in this way is an accomplishment that I will always be extremely proud of. “This award is also a clear recognition of Atlantic Chambers’ success in attracting high quality clinical negligence and personal injury work from across the North West. “With our recent appointments to Queens Counsel, Atlantic Chambers is now firmly established as one of the top chambers in the North of England.” Liverpool Law Society president Norman Jones added: “I am delighted that Scott Donovan has been recognised for his outstanding talents as a top barrister. This award is entirely appropriate for one of Liverpool’s great barristers.”

the barrister

The UK Bribery Act 2010 and the US FCPA, Concepts and Contrasts With the issuance by the UK Ministry of Justice of their “Guidance” and related “Quick Start Guide,” the imminent effectiveness on July 1, 2011 of the UK Bribery Act 2010 makes it timely to review this new legislation in comparison to the US Foreign Corrupt Practices Act, which has been on the books since 1977. Notably, several recent enforcement actions have been jointly US-UK proceedings. By Robert A. McTamaney, Partner, Carter, Ledyard & Milburn, New York City

General Applicability

also the receipt of bribes. The UK law applies

Having the payments made by an agent or

to all companies which carry on a business

distributor clearly does not work, and likely

prohibits

in the UK, regardless of where in the world

never did. The UK Bribery Act similarly

corrupt payments to foreign

the actual bribe occurs. A UK Listing alone,

covers principals and “associated” persons

officials for the purpose

or merely having a UK subsidiary, will

to the extent that they actually represent the

of obtaining or keeping

not suffice to have the new Act apply, but

paying company and the bribery is intended

business.

Enforcement

otherwise it will be instructive to see how this

to benefit it.

has expanded dramatically

incredibly broad potential reach of the new

FCPA

over the last 10 years. In addition, other US

law is actually applied in practice.

Type of Bribe The bribe under both laws can be almost

statutes such as the mail and wire fraud laws, and especially the US Travel Act, provide

Underlying Elements of a Violation

anything of value, from cash to trips to job

for federal prosecution of violations of state

Neither the US FCPA nor the UK Bribery Act

offers to motorcycles! Anything of value,

commercial bribery statutes, which may

requires proof of actual knowledge and intent

whether actually paid or simply promised,

also apply to such conduct, and to bribery of

to promise or to actually pay a specific bribe.

will be a target predicate.

anyone, not just foreign officials.

In the US, a finding of willful blindness or reckless disregard on the part of the parent

Bribe To Whom

The US law applies generally to all US

company will suffice to trigger liability in

The actual or proposed recipient can be a

businesses, and to foreign companies which

the absence of express authorization, while

“Foreign Official” (US) or a “Foreign Public

commit a violation in the US, and generally to

negligence alone will not. Similarly under the

Official”(UK) or anyone else, public or

foreign companies with securities including

UK Bribery Act, actual knowledge of the bribe

private, since private bribery likely violates

ADRs registered and trading in the US, and

and its circumstances are not necessary.

the US Travel Act and definitely violates the

most recently to foreign companies charged

While reasonable and discrete enforcement

UK Bribery Act. In the US there is recent

with “aiding and abetting” a US violation.

has been promised, the only statutory defense

and active litigation over the issue of which

While a foreign subsidiary might itself be

available in the UK is the development and

employees of state-controlled enterprises

beyond the reach of the FCPA, the US parent

enforcement of “adequate procedures” to

qualify as “Foreign Officials” -- the US DOJ

could be liable if it authorized, directed, or

prevent bribes being offered or made.

and the US SEC position is that they all do, even if the state control is less than a majority

controlled the making of a foreign bribe. Neither law has any statutory minimum

interest.

Under the US FCPA’s accounting provisions

bribe amount required, and several cases in

added in 1994, (and under Sarbanes-Oxley),

the US have been based on relatively modest

Purpose of the Bribe

all securities issuers registered under the US

bribes. In the UK there have been calming

The purpose of the payment must be to obtain

Securities Exchange Act of 1934, domestic or

statements that only “significantly serious”

or retain business, or direct business to any

foreign, must maintain record-keeping and

situations will merit prosecution, which must

person (US), or to “intend to induce or reward

disclosure for themselves and their offshore

be specifically approved by very senior MoJ

the improper performance of a relevant

subsidiaries as well to prevent “off-book”

officials before a case can be brought.

function or activity.” (UK). Under neither law

accounting which might facilitate bribery.

Bribe By Whom

is it necessary that the bribe actually succeed

The UK Bribery Act prohibits not only the

The FCPA applies to any individual or any

in its purpose -- “passive” bribery is a violation

payment of bribes, as does the FCPA, but

intermediary if they violate or conspire.

of both laws if the improper purpose exists.

the barrister

Defenses

encourages “speak up” and “whistle blowing”

Grand Prix as appropriate entertainment!

Under the FCPA, it is a defense that the

by knowledgeable employees up the ladder in

Self-reporting is strongly encouraged in

payment was lawful under written laws of

their companies, and self-reporting in the UK

both countries, with a possible race to the

the foreign country, or that the money was

will clearly affect prosecutorial discretion.

prosecutors if potential whistleblowers are

spent as part of demonstrating a product

US Whistleblowers are strongly protected

involved in the US at least.

against

performing

contractual

obligation.

retaliation

employers,

and

Under the UK Bribery Act, similar legitimate

potential whistleblowers could easily include

Risk assessment and thorough due diligence,

expenses also are legal, but local custom and

formerly faithful employees or even advisors

especially on agents and other intermediaries,

practice are given no weight unless local

lured by the rewards. These incentives have

are key features of both regulatory regimes.

law affirmatively permits or requires the

been bitterly criticized by US companies,

Regulators in both countries have their “red

payment.

whose compliance programs are expected

flag” lists to help spot possible bad actors:

to be far less effective if employees become

Beware specifically of cash payments, high

“Grease”

aware of violations and rush off to become

commissions and ill-defined responsibilities,

“Grease” or “Facilitating Payments” are

whistleblowers instead of reporting under

infrequent reviews, and the absence of

commonly required in many countries for

their companies’ internal programs, and

auditing provisions.

securing routine government action on a

giving the company the chance to self-report

timely basis. Payments can be expected

with the related benefits of that candor.

Thorough employee training programs, again proportional to the size and sophistication

under local practice to secure permits, licenses, or other official documents; to

Compliance Programs

process governmental papers, such as visas

Under US law, vigorous internal compliance

both jurisdictions, with emphasis on T&E,

and work orders; to provide police, mail pick-

programs

political contributions, due diligence, and

up and delivery; to secure phone service,

decisions by prosecutors to bring enforcement

liability for all intermediaries. Incentives and

power and water, to load and unload cargo,

proceedings or not, and under the Sentencing

affirmation of retaliation protections could

or to protect perishable products; and to

Guidelines

be offered for self-reporting. Benchmarking

schedule inspections associated with contract

enforcement proceeds. In the UK, “adequate

of other companies’ practices and review of

performance or transit of goods.

procedures” to prevent bribery are virtually

trade association models is often instructive.

the only defense available to companies

And the compliance programs must always

Under the FCPA, grease is not prohibited if

facing action under the UK Bribery Act, to

contemplate ongoing review and adjustment,

the payor is legally entitled to the service and

the point that “failing to prevent bribery” is a

depending on the changing facts and specific

the local agency has no discretion to provide

separate offense.

developments.

under written laws of the relevant country.

Under both regimes, the same elements are

Penalties

But facilitating payments are prohibited

prominent, beginning with “tone at the top”

Maximum penalties under the UK Bribery

under the UK Bribery Act, and were

-- active involvement by the Board and senior

Act include, for individuals, up to 10 years’

prohibited under prior UK law, but the official

management to create an environment where

imprisonment and an unlimited fine, and for

position is that the authorities will “consider

bribery is never tolerated, and is vigorously

commercial organizations unlimited fines

very carefully what is in the public interest

dealt with whenever discovered.

and mandatory debarment from tendering

are

and

critical

penalties

of the companies involved, are required in component

general

the service or not, and the payment is legal

before

deciding

whether

for public contracts under EU Directive 2004.

prosecute.”

Many US companies already prohibit grease,

But there are clear differences in approach. The

Directors and Senior Officers of a commercial

because of grey areas and probable illegality

UK specifically recognizes “proportionality,”

organization can also be guilty in relation

under local law. But it is unlikely that “grease

-- that one size of compliance does not fit

to active and passive bribery and bribery of

alone” will attract determined prosecutorial

all, while the US has been quick to prosecute

a Foreign Public Official (but not failure to

interest in either country.

bribery rather modest in amount, and

prevent) if they “consented or connived,” or

individuals guilty in some cases of more

turned a blind eye, or chose not to investigate.

Whistleblowers

inadvertence than evil intent. Hospitality and

US FCPA criminal penalties include for

The new US Dodd-Frank Act includes

client entertainment are specifically approved

individuals up to 5 years’ imprisonment and

whistleblower rewards of 10-30 percent

in the UK, while being far more suspect in the

fines up to $250,000, and for corporations

of fines collected worldwide as a result of

US, as evidenced by the recent $10 million

fines up to $2 million. In addition, intentional

FCPA or securities violations that result in

settlement by IBM for FCPA violations based

violation of the accounting provisions can

monetary sanctions exceeding $1 million.

on entertainment thought too lavish. The

attract individual prison sentences up to 20

There is no clearly comparable provision

UK Guidance announcements took care to

years, individual fines up to $5 million, and

under UK law, but the Guidance actively

specifically mention both Wimbledon and the

corporate fines up to $25 million and possibly

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higher, in addition to disgorgement of related

We do not pay “Grease” or other

for extradition. But if instead of murdering

profits.

compliance

facilitating payments to assure receipt of

the CEO, they send him and his family to Asia

monitors are a frequent US remedy, the bribe

services to which we are legally entitled

Disneyland to secure a profitable contract

and fines are not tax-deductible, and fines

under local law.

with the JV, then they have bribed someone

on an individual must be paid personally

who is probably a “Foreign Public Official”

and not by the employer. Debarment from

effect from time to time, we extend routine

and a “Foreign Official,” and they can be

bidding on US Federal and individual State

hospitality

programs could also result. In addition, the

customers,

and

US DOJ or SEC may bring a civil action for a fine up to $16,000 per occurrence against

discuss our products and services

standards of moral business conduct, they

any involved as well as any guilty officer,

Expensive

ongoing

Within

designated and

potential,

prosecuted, convicted and jailed in either the

reimburse

US or the UK. This incongruity demonstrates

reasonable expenses to demonstrate and

only that when nations choose to export their

existing

limits

pay

maintain,

all

should reserve prosecutions for the most

director, or stockholder. In the SEC action,

intermediaries

complete,

serious cases, especially in situations where

the court may impose additional fines not

accurate and candid records of all payments

the local jurisdictions either ignore or even

to exceed the greater of (i) the gross amount

made by or on our behalf to anyone for any

condone exactly the same conduct.

of the pecuniary gain to the defendant as a

purpose. These records are fully available

And one key element to keep in mind is that

result of the violation, or (ii) a specified dollar

to senior officers and for audit internal and

US FCPA Compliance will not necessarily

limitation based on the egregiousness of the

external auditors.

constitute “adequate procedures” under the

violation, ranging from $5,000 to $100,000

suspected

UK Bribery Act, particularly in light of the

for a natural person and $50,000 to $500,000

violation of these principles is to be reported

Six Principles specifically enumerated in the

for any other person. Injunction proceedings

immediately, through the Company’s Hotline

UK Guidelines. Furthermore, the FCPA needs

and stockholder suits are also potentials.

or otherwise, to superior executives and to

the US Travel Act to reach bribery of private

Any

and

require

maintain,

observed

the Company’s Compliance Officer.

persons, while the UK Bribery Act stands on

Suggestions

Violation of these principles will

its own in that respect. Finally, “Grease” is

A “Top Ten List” of Guidelines to ensure

result in the immediate termination of the

permissible in some very limited cases under

compliance with both the US FCPA and the

employee, agent, distributor, or intermediary

the FCPA, but never under the UK Bribery

UK Bribery Act 2010:

involved, and to other legal action as

Act.

Improper

payments

secure

appropriate.

business are illegal and violate the Company’s

10.

Any fines or expenses incurred by

Enforcement of the US FCPA sets new records

Business

This

any individual must be paid personally by the

every year for fines and jail terms, and more

Commitment is shared and strictly enforced

individual and will not be paid or reimbursed

commonly these cases have been multi-

by our Board, by our senior management,

by the Company.

jurisdictional, with the UK being a favorite

and

Ethical

Standards.

partner.

and by every employee. 2.

We continually assess the risks

Conclusion

of such payments occurring in our existing

Until adoption of the UK Bribery Act 2010, the

But whatever the applicable enforcement

businesses, and particularly when we enter

US FCPA was the most energetic anti-bribery

predicate and degree of enforcement, bribery

new geographic areas or into new lines of

legislation in the world, and depending upon

of foreign officials or foreign private business

business or with new intermediaries not

the level of actual UK enforcement, the FCPA

contacts is now completely prescribed by

formerly well known to us.

may still be in the lead, even with the new

extremely strong laws in the world’s two

Whenever we deal through agents,

and strong laws in China. But the UK Bribery

principal financial centers, and the only

distributors or other intermediaries, our

Act has been fairly described as “the FCPA

reasonable reaction is complete compliance

due diligence should be at least equivalent

on steroids,” and if enforcement follows, and

in good faith with the laws as written. Expect

to our hiring of an active employee, and our

even if not, it must be taken with the utmost

possible competition among prosecutors as

assignments of duties, monitoring and review

seriousness by anyone possibly subject to it.

well, as the various enforcement agencies on

of their activities and results should be just as

Both laws apply wherever in the world

either side of the ocean do not want to appear

thorough.

the bribe occurs. This can produce odd

lax in enforcement in this area as compared

with their overseas counterparts..

All agents, distributors and other

inconsistencies. If an American businessman

intermediaries through which we do business

and his London partner do business with a

are expected to confirm that they will abide

joint venture in China 51% controlled by the

by these principles in all respects. If they do

PRC, and they travel to China and murder the

not have internal anti-bribery procedures in

JV's CEO, and then make it home, neither the

place, it is unlikely that we will do business

US nor the UK have obvious jurisdiction to

with them.

arrest them for their crime, unless China asks

the barrister

Religion and Arbitration- The UK Supreme Court ruling in Hashwani v Jivraj By Sarosh Zaiwalla, senior partner, Zaiwalla & Co Solicitors, London

n the 6th and 7th of

hotels in Canada. Both men were members

Thirdly,

April 2011, the English

of the Shia Ismaili Muslim community.

providing for the arbitrator to belong to a

Supreme

particular religion is void.

Court

that

arbitration

agreement

heard

Disagreement arose after the termination of a

an appeal relating to an

joint venture agreement, which contained an

international

arbitration clause stating that the arbitration

The Court of Appeal also determined that the

would be governed by English law and that

doctrine of severance applied to the arbitration

attracted worldwide interest even beyond

the arbitrator had to be an Ismaili Muslim.

agreement as “in this case, the [parties]

the International Arbitration fraternity. The

Having failed to settle the matter within

stipulated that the arbitrators should be

possible implications of this Judgement are

the Ismaili community, one of the parties,

drawn from the Ismaili community….In our

being debated fiercely at all International

Sadruddin Hashwani, appointed Sir Anthony

view that choice is to be seen as an integral

law conferences concerning International

Coleman, a former English High Court judge,

part of the agreement to arbitrate.”

Arbitration, and for good reasons.

as his arbitrator. The other party, Nurdin

agreement

arbitration which

has

Jivraj, objected to the High Court because Sir

Consequently, the Court of Appeal made an

The Court of Appeal determined three main

Anthony was not Ismaili Muslim, but rather

Order by which it declared that the whole

points for the Supreme Court to decide.

of Jewish descent.

of the arbitration clause, and not merely

Firstly, an Arbitration Agreement governed

the last sentence specifying the ‘Ismaili’

by the English Arbitration Act 1996 cannot

Steel J. held: (i) that the EU Equality (Religion

requirement was “unlawful and void”, and

provide a term that the Arbitrator must

and Belief) Regulations 2003 Regulations did

that consequently the appointment of Sir

belong to a particular religion. Secondly, that

not apply to the appointment of arbitrators;

Anthony Colman was invalid.

an Arbitrator is an employee of the parties.

(ii) but, if they did, Regulation 7 applied

Thirdly, that an Arbitration Agreement that

on the facts so as to permit the religious

The legal basis of the Court’s determination

provides for the Arbitrator to belong to a

qualification in this case, as it was a ‘genuine

was the application of the EU Equality

particular religion is void in its entirety.

occupational requirement.’ Steel J also held

(Religion and Belief) Regulations 2003. The

That, in essence, was the Court of Appeal’s

that, (iii) if he was wrong on the foregoing

Regulation was made in order to implement

decision.

points, the doctrine of severance applied so

(in part) Council Directive 2000/78 EC of

that the whole of the arbitration clause was

27 November 2000 which establishes a

The Court determined that the doctrine

void. Accordingly, by his Order, the High Court

general frame work for equal treatment and

of severance applied to the Arbitration

held, inter alia, that the arbitration clause

employment occupation.

Agreement, and therefore found that the

was lawful and therefore the appointment of

whole Arbitration Agreement was invalid.

Sir Anthony Colman was invalid.

employment on the grounds of religion or

aimed

prohibit

This Regulation discrimination

belief and defines “employment” as including Arbitration

bodies,

including

the

Court of Appeal

a contract personally to do work of any kind.

International Chamber of Commerce (ICC)

The recitals of the Directive and the Structure

and the London Court of International

In July 2010, The Court of Appeal determined

of Article 3(1) of the Regulations as a whole

Arbitration (LCIA), have made applications to

three main points.

indicate that it is concerned with preventing

intervene in the appeal to the Supreme Court

discrimination affecting access to the means

because they fear that the judgment may void

Firstly, an arbitration agreement cannot

many existing arbitration agreements which

specify that the arbitrator must belong to a

employment, self employment or some other

provide for the appointment of arbitrators on

particular religion.

basis of occupation.

Secondly, that an arbitrator is an ‘employee’

The Court accordingly held that arbitrators

of the parties and therefore subject to

are “employees” for the purpose of applying

legislation which prohibits discrimination

the anti-discrimination rules under the EU

in employment on grounds of religion or

Regulation because, although not employees

belief.

economic

activity,

whether

through

the basis of nationality, religion or belief, age, race, sex and sexual orientation.

Background The

dispute

involves

two

international

The term specifying the religion

ordinary

standards,

arbitrators

are

businessmen who entered into a joint venture

of the arbitrator was therefore void as

engaged under a contract personally to carry

agreement to buy and manage a chain of

out work of a particular kind. The Court went

discriminated

religious

grounds.

the barrister

on to explain that “Judges ,for example, are

example, parties are open to enter into an

decide an important issue of principle: in

to be regarded as employees in that broad

arbitration agreement making it clear in the

today’s modern and enlightened world, can

sense because their patterns of working

agreement that the Jewish community rules

an international agreement include a term

is determined to a considerable degree by

would apply. However, there is no question

which requires parties to restrict their choice

others, although in nearly all other respects

of Ismaili law being applied in this case. Mr

of arbitrators from a personal particular

their position is very similar to that of the self

Jivraj is pleading that it is an ‘occupational

religion or for that matter, sex or race?

employed”. In this context the Court of Appeal

requirement’ for an Ismaili to apply English

said that “The paradigm case of appointing

law to the dispute in question. The judgment

Sarosh Zaiwalla, the senior partner of

an arbitrator involves obtaining the services

is therefore unlikely to have any impact on

Zaiwalla & Co Solicitors, London is acting

of a particular person to determine a dispute

religious community arbitrations so long as

for Mr Hashwani. He is a former member of

in accordance with the agreement between

the arbitration agreement provides that the

the International Court of Arbitration of the

the parties and the rules of law, including

religious law will apply, or even if it does not

ICC in Paris and a practising international

those to be found in the legislation governing

state expressly that a national law should

arbitrator.

arbitration”

apply.

1000 international commercial and maritime

He has been involved in over

arbitrations.

Upset from the ruling

Similarly,

the

institutions

fears

are

the

unjustified

arbitration

because

the

Both the ICC and the LCIA have rules that

Equality Act provides for exceptions in the

provide for the appointment of arbitrators

case of occupational requirements, so long

on the basis of nationality, to help ensure the

as the discrimination is a proportionate

independence and impartiality of arbitrators.

means of achieving a legitimate purpose.

They say that these provisions could be

For example, where an institution’s rules say

deemed discriminatory because of the Court

that an arbitrator shall not be of the same

of Appeal judgment.

nationality as either of the parties, then that would surely be deemed a legitimate aim.

It is said by international institutions that by implication the Court of Appeal’s judgment

However, there are

would also cover any discrimination on

occasions

grounds of nationality. These institutions say

parties might want

that, to achieve an International outlook and

their dispute to be

maintain balance and diversity, it is necessary

decided

to broaden the membership of Arbitration

principles of English

Tribunals, and for that purpose it should be

law, but for the sake of

in order to provide a term in the Arbitration

speed and cost would

Agreement which on the face of it might

prefer

appear discriminatory. These institutions

community panel to

also say that nationality is of particular

decide the. We shall

importance in the context of International

have to wait for the

Dispute Resolution. Their fear is that within

Supreme

the English Equality Laws, nationality is

clarify

subsumed within the protected characteristic

this

respect.

of ‘race’ which is defined in Section 9 of

clear

that

the UK Equality Act 2010 to include colour,

law has nothing to

nationality or ethnic or national origins.

do with religion, and

Religious institutions that provide arbitration

therefore it will be

services for their community members, such

interesting to see if

as the Beth Din of the Jewish community, also

this judgment opens

fear that the days of their arbitration services

will be numbered.

claims

when

under

Court

matters

the

St Benedict’s, Ealing Independent Catholic Day School Teaching a way of living Co-education from 3 years through to 18

religious

scope of

English

for

religious

discrimination

‘Occupational requirement’ exception

the

commercial contracts worldwide.

Their fears are misplaced. The Equality Act provides for exceptions to discrimination in

The Supreme Court

the case of ‘occupational requirements’. For

Judgment

will

• Excellent Academic Results • Outstanding Pastoral Care • Scholarships and Bursaries in Senior School For more information please contact: T: 020 8862 2254 (Senior School and Sixth Form) T: 020 8862 2054 (Nursery and Junior School) E: enquiries@stbenedicts.org.uk W: www.stbenedicts.org.uk We respect the dignity of all and welcome students of other Christian denominations and, in the Senior School and Sixth Form, other faiths.

the barrister

Ask not what the Bar can do for you but how The Board can confuse the doing of it Review of the Code of Conduct 2011 “Whatever can be said can be said clearly” Part II By Ben Beaumont, Head of Clarendon Chambers

the

last

issue

Barrister

any requirement of this Code.

AMENDMENTS

magazine I drew attention to the

Then

problems relating to the user-

“Amendments”. The heading should be

GUIDANCE

friendliness of the proposed Ninth

explicit.

It should state “amendments to

On page 4 under the heading of guidance is

Code of Conduct issued January

this code”. There is reference within the

set out where guidance can be found. The first

2011.

raised

introductory element of paragraph 4 "Save

obvious point is that all guidance documents

concerned the structure of the document. In

in the case of hearings before the visitors

referred to should be brought together under

other words was it easy to find the elements

Rules...“. There is no link to or reference

one heading and not left for a lay person or

contained in the code? I concluded it was not.

to any where in the code as to rationale

junior barrister to attempt to find all these

for hearings before Visitors Rules being

documents, collate and interpret them.

empowered to make amendments.

Further in paragraph 9 there is a reference

The

problems

CONTENT OF THE CODE

paragraph

the

Heading

I now turn to the content of the code. My

to any relevant guidance issued by the Bar

first comment arises on page 3 of Annex 1.

APPLICATION

Standards Board. That guidance is not listed

Annex 1 contains the entire Code of Conduct

On the same page at the bottom is a reference

under paragraph 8 save in paragraph 8.4

save of course all the various elements which

to “application”. This refers to the contents

where there is a reference to such guidance

the BSB has decided will not be included with

of paragraphs 6 and 7. The key element is

as may be published on the Bar Standards

the Code at this time.

the requirement of this Code that it “Shall

Board website. Since the heading refers to

not apply to you”. It appears to mean that

“publication” it is suggested that whatever is

COMMENCEMENT

the Requirements (not requirement) of the

published from time to time on the website

There is a heading Commencement. This

code shall NOT apply to certain categories of

as it is of such key importance should also

section clarifies which Code is in force and

barrister. This exemption raises two points.

be issued in document format may be in

when. In the heading to paragraph 3 the code

If correct it should be placed clearly as part

loose-leaf format so that the members to

states “In respect of anything done or omitted

of the introduction to “application”. Secondly

whom these guidance applies may have a

to be done or otherwise arising before (the

does the exemption intend to apply to the

permanent record of the same.

date) . This is far too vague. The phrase

entire Code? Apparently not when reading 6.3

“or otherwise“ does not relate to anything

which states “that requirement conflicts with

WAIVER OF THE DUTY IMPOSED ON A

which has gone before. It is meaningless in

a requirement …..would apply to you”. The

BARRISTER

its context. The suggested wording should be

poor grammar and sentence construction of

The heading relating to page 5 is carried

“in respect of any matter to which this code

directions 6.2 and 6.3 here cause confusion.

over from page 4 being “waiver”.

applies arising before (the date)”.

The phrase should not be “the “ but “a”.

an example of poor proofreading and page

This is

Thus “A requirement of this Code shall NOT

composition. In paragraph 10 it is stated that

WHICH CODE

apply to you if:

the Bar Standards Board shall have the power

Paragraph 3.3 states: “Any reference to this

6.1 you are employed … by a recognized

to waive the duty imposed on a barrister to

Code shall include reference to the Edition

regulatory body.

comply with the provisions of this code in

of the Code in force at the relevant time”.

6.2 you are subject to a requirement of

such circumstances and to such extent as

Two points arise. To what does this direction

that recognized regulatory body in whatever

the Bar Standards Board may think fit and

refer? What does this direction mean? If a

form

either conditionally or unconditionally. This

person looks at this Ninth Code what are they

6.3 and that requirement conflicts with

is a key overriding power. Yet no guidance

meant to obtain from this direction? This

a requirement of this Code then that

is given as to the circumstances in

direction should be deleted.

requirement takes precedence over

which this power may be exercised.

the barrister

CONDUCT RULES

last phrase is key, yet omitted. Yet that last

simplicity. The client can read that document

The next comment refers to page 6 of annex

leg of the condition is not stated in paragraph

together with the mandatory requirement

1. The heading of this element of the text

1.1 R (4) Yet it is noted in the Guidance 1.11G

that barristers must inform clients how to

is “conduct rules”. The subheading to this

(Guidance only!).

complain at the outset.

rules”. However it is only further into the

CONFIDENTIALITY

ABUSING THE ROLE OF THE ADVOCATE

text on the same page that it is ascertained

Thereafter

mean

On page 11 of the annex is the element

that the conduct rules are divided into core

guidance lest you forget) states “Your duty

addressing not abusing the advocate’s role.

duties, rules and guidance.

to the court is subject your duty to keep the

At 1.9 G (1) it says “You must not make

affairs of each client confidential”. Section

statements or ask questions merely to insult

The Rules are subsequently redefined into

3 on page 17 contains a small element on

humiliate or annoy a witness or any other

Duties on page 8. Do away with Duties. The

confidentiality. The key guidance is set out

person”.

Key to the control of our Conduct are Rules.

in 3.3 G. It says there may be circumstances

aware that questions asked the purpose

All else is subsidiary to those Rules.

when your duty of confidentiality conflicts

of discomfiting a witness may well elicit a

element is “the introduction to the conduct paragraph

1.2

An experienced barrister will be

with your duty to the court. These are

truthful answer. To make it mandatory not to

The concept of dividing rules into duties and

considered in the Guidance section 1 above.

ask such questions is a breach of the duty to

subsidiary rules is ineffectual and confusing.

So the search begins.

act in the best interests of the client.

must observe your duty to the court in the

Section 1.11G makes it quite clear that there

NO PERSONAL OPINION AS TO FACTS OR

administration of justice” is arguably a duty

is an overriding duty to comply with the

LAW

and a rule. On the same page 8 it is stated

requirement to bring attention to the court all

At 1.9G(5) (Note not a Rule) is a very unusual

that these core duties, which it is argued

relevant decisions and legislative provisions

statement. “You should not put forward a

are in fact rules, are not presented in any

however adverse to the interests of your

personal opinion of the facts or the law

order of importance. Therefore it would be

client. It is therefore suggested that the

unless you are invited or required to do so

assumed that they or have equal importance.

location of the guidance in 1.2 G, see above,

by the court or by law”. Let alone the lack of

That assumption would be wrong.

is extremely confusing and not likely to assist

clarity as to what this means it has always

any lay client or indeed junior barrister in

been my opinion that the role of the barrister

understanding what the duties are.

is to do just that. It is to make a submission

In fact only Core Duty 1 (CD 1) being “you

On page 19 under the heading “Best interests of each client” paragraph number 4.8 states

of the facts and the law on behalf of acting in

“Your duty to act in the best interests of

CONFIDENTIALITY AND DUTY NOT TO

the best interests of the client. What remains

each client is subject to your duties

MISLEAD

for the barrister to do on behalf of the client

under Core duties 1 to 4.” It is therefore

The key rule referring to the duty of

if this role is removed?

suggested that the BSB restructures page

confidence and it is cooperation

8. Core duties should be set out as rules.

duty not to mislead the court is set out on

The few matters that I have highlighted are

It should be made quite clear and explicit

page 10 at paragraphs 1.6 G onwards.

mere examples of the complex jargon and

which are overriding rules. And surely the

There is no indication here that this new

confusion in which the BSB is proposing

most overriding rule is the duty to the court

duty applies in all proceedings as well as

to wrap the Bar and most especially the

in the administration of justice.

in criminal proceedings unless maybe that

lay client. Either call an end to the Role

duty does not apply to all proceedings. Again

of a Barrister or start again with common

the first sentence is a confusing negative. It

sense and logic as the guiding precepts. I

ADMINISTRATION OF JUSTICE

states "Your duty to the court does not mean

believe Lady Justice Hallett made a similar

On page 9 are listed various elements of duty

you must disclose confidential information

comment at the end of the 7/7 Inquest. "What

which must be complied with. It is agreed

which you have obtained in the course of

worries me is all you senior people of these

that key duties are that a barrister must

your instructions and which your client has

organisations are allowing yourselves to be

not knowingly mislead the court or permit

not authorised you to disclose to the Court.”

taken over by management jargon and, as I

the court could be misled and (at 1.1R(4))

A lay client reading these guidelines would

say, it's not just directed at you... I just think

further must take reasonable steps to ensure

not have any idea what matters are required

that you people at the top need to say we

that the court has before it all relevant

to be disclosed. This Code is intended for Lay

have to communicate with people in plain

decisions and legislative provisions even

Clients. May be the BSB should introduce

English."

where those decisions and provisions are

an A4 sheet to be handed to lay clients

Can we both be wrong?

adverse to the interests of your client. This

which sets out this area in words of utmost

THE

DUTY

THE

COURT

THE

with the

the barrister

The Alcohol Test Jigsaw Puzzle – Putting the Pieces together By Graham Sievers, Director, Concateno TrichoTech A guide to what current technologies

followed by a liver function test (LFT) and

Thus, determining chronic excessive alcohol

can and cannot provide

possibly a CDT blood test have been the

use is not easy – if a range of the above tests

most common techniques to detect excessive

are carried out and most or all show elevated

the

alcohol abuse. An interview tries to ascertain

levels consistent with such a diagnosis then

use of alcohol

self-reported alcohol intake, with obvious

the case is much stronger than if any one of

and placing an

potential flaws. An LFT provides a snapshot

the tests are used in isolation of the other

interpretation

of the condition of the liver at the time of the

checks.

on a detected

test, but does not indicate whether alcohol is

level

use

currently being drunk excessively – only that

Detecting sobriety from alcohol

has been increasingly in demand in courts

certain damage to the liver has occurred (and

Urine tests conducted two or preferably

for family and child protection casework in

that may be damage that was caused by past

three times a week for a few weeks would

the last 4 or 5 years, particularly as a method

drinking habits or other medical conditions).

be an appropriate technique to determine

easuring

if someone has ceased consuming alcohol

for helping to determine long term abuse has become more widely available, using hair

A carbohydrate-deficient transferrin (CDT)

and are genuinely maintaining abstinence/

analysis. However more research is required

test will show elevated levels if enough

sobriety. It may not be very practical and

before hair analysis can be adopted as a

alcohol has been consumed in the last couple

easy to implement, but it is a method most

single method for such diagnosis.

of weeks, but raised levels can also be found

likely to establish abstinence, and utilising an

in a number of medical conditions. Hair

experienced provider will increase the ease

This technology is relatively new, and the

alcohol analysis has added to the range of

of implementation for both the purchaser

leading toxicologists on hair alcohol at

tests available to help, but like the other

and donor. Although the two or three weekly

TrichoTech recommend that it should not be

tests mentioned, it cannot on its own provide

sample collections could be booked in

used in isolation of other biological markers,

the ‘yes or no’ answer that family ctourts

advance, it would be likely that a couple of

as does the newly updated consensus from

seek. This is particularly true for ‘negative’

random collections would be carried out at

the Society of Hair Testing. Because of the

or low levels of the two key markers, EtG

short notice to provide better support to the

widely recognised accuracy for detecting

(ethyl glucuronide) and FAEE’s (fatty acid

overall conclusion. Further, if a laboratory is

alcohol in breath and in blood used as

ethyl esters), because they can be affected by

used that can detect not just ethanol (alcohol)

evidence in courts for drunk driving offences,

normal hygiene practices (washing hair) and

in urine but also EtG, this will extend the

it might be that all alcohol testing is regarded

also by hair treatments. That is, low levels

window of detection for urinalysis to up to

as giving a straightforward result. This is not

of either or both markers do not necessarily

four days, for a wider window of detection.

the case, and here’s a brief guide as to why:

indicate there has been no consumption or

Hair tests in isolation are currently not

no excessive consumption. Some laboratories

advisable for use to determine moderate

equate disturbingly specific quantities of

drinking

alcohol ( ‘x bottles of vodka’ for example)

remains as mentioned before – the alcohol

There is no single test or method for

with levels detected, but the current scientific

markers can be affected by treatment and by

determining a definitive diagnosis for this

consensus is that it is simply not yet possible

washing, so lower than chronic levels are not

type of alcohol use. A standard questionnaire

to be that precise.

reliable indicators of moderate drinking or

Detecting chronic excessive alcohol use

levels,

the

same

problem

the barrister

abstinence. Nevertheless a hair alcohol test

http://www.ukas.com/about-accreditation/

with low levels of the EtG and FAEE markers

accredited-bodies/Testing-laboratories-

could still provide a corroborative piece of

schedules.asp

the jigsaw puzzle in determining someone’s alcohol use.

Graham

Sievers,

Director,

Concateno

TrichoTech graham.sievers@concateno.com

Detecting if someone is under the influence of alcohol

Graham Sievers has been working in the drug and alcohol testing industry for over

Finally a single test that does provide enough

a decade, writing frequently about the

evidence on its own: blood or breath alcohol

strengths and limitations of drug and alcohol

tests detect if there is alcohol in the system at

testing to audiences in Europe and abroad.

the time the sample is taken, and depending

His most recent article on workplace drug

on the sophistication of the equipment used

testing appeared in the Drug and Alcohol

to analyse the samples, the levels of alcohol

Testing

above which the sample is deemed positive

America’s trade association for the sector.

can be adjusted to match a country’s drink-

He recently contributed to the alcohol testing

driving limit or a safety critical employer’s

Consensus review at the Society of Hair

lower limit (which might be zero tolerant).

Testing’s symposium in Chamonix, France.

Industry

Association’s

journal,

These tests – especially the breathalysers that are carefully calibrated and regularly checked, such as those used by traffic police – are accurate and reliable for their purpose.

A final word on accreditation

This has been in the press recently, and it is important to differentiate a laboratory

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any other certification. Other certifications, whether for quality management systems or other areas, do not equate to a test provider holding the quality badge for a wide group of drug accreditations to the international standard. It is easy to find

Call Martyn Bradish for a free, no obligation meeting Visit the barristers & judges page in the services section of our website at www.bradish.co.uk

out which providers have accreditation and for which drugs: visit the United Kingdom Accreditation Services (UKAS) website and search for the laboratory’s name. If they’re not listed, they’re not accredited.

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the barrister

Expert Witness immunity- Where Now? Steven Murrell, a Litigation solicitor with Macfarlanes LLP, and John Williams, a Chartered Surveyor and Expert Witness with Maple Leaf, discuss the impact of the loss of immunity for Expert Witnesses. consuming process.

SM: How are you finding Expert Witnesses

SM: This was exactly the fear barristers had

(EW’s) are reacting to the loss of their

when their immunity was removed by Arthur

immunity?

JS Hall & Co v Simons, but the great increase

SM: I’m not sure that claims based on an

in litigation that was talked about hasn’t

opinion that isn’t upheld will be so readily

JW: I think most are recognising that it hasn’t

materialised. Do you really think it will be

launched.

actually changed their duties to either the

any different for EW’s?

35.3 CPR still prevails and it will be extremely

The overriding duty under Part

difficult to show that a reasonably formed

court or to the client. Most EW’s have always accepted that they have a duty (even if not

JW: It shouldn’t be but experience suggests,

expert opinion represents grounds for a

legally enforceable) to their client to perform

particularly in the surveying world, that

disgruntled client to file a claim against their

their role competently and professionally, but

when anything goes wrong, the surveyor

EW. It needs to be remembered that Jones

many are nervous about what will happen

is seen as the first target for any action,

v Kaney didn’t involve any allegation that the

now if their client doesn’t win the case. Will

regardless of whether they were actually

opinion was negligent.

they be seen as a scapegoat and face a claim

at fault. It also has to be remembered that

the EW signing a Joint Statement which did

from a disgruntled client?

even if the EW is fully vindicated any such

not represent her full and true opinion.

claim will still have involved a costly and time

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It revolved around

the barrister

JW: That’s true and I certainly hope that

witness box. The EW will also need to show

a parallel with the feedback we’ve had

this is reflected in how the law in this

that he has a thorough understanding of CPR

from our Professional Indemnity insurance

area develops. Otherwise there could be a

Part 35, Practice Direction 35 and of the Pre-

underwriters. They are taking a risk based

growing reluctance in experts in a field to

Action Protocols relevant to the field. After

approach to their response to this issue.

act as EWs.

all, knowledge of Part 35 now forms a specific

They have viewed my qualification as a major

part of the required Statement of Truth and a

risk limiting factor and have not altered our

potential area of cross examination.

premiums.

SM: Do you really think so?

After all, at

I suspect that they will take a

different view of those not qualified as EWs

the Bond Solon Annual Expert Witness Conference in November last year wasn’t

JW: Something I’m all too well aware of!

this issue specifically raised in one of the

How do you go about assessing this aspect?

come their renewal.

SM: Again, this is likely to have an impact

general sessions? SM:

The

best

demonstration one

should be cause for concern in some fields.

qualifications in the area, such as the Bond

conflict that could arise between an EW’s

Solon Accreditation that I know you have.

JW: Why? Surely there’ll always be someone

duty to the court and pressure from a client.

I think that this will become increasingly

whose expertise you can call on?

managing

the

of disquiet expressed about the potential for

those

hold

on the pool of available EW’s and I think this

understanding

this

JW: Yes it was and there was a great deal

important

Dispute

SM: And yet didn’t the majority, when asked,

Resolution and may become an essential

SM: It’s not so much that, it’s more a possible

confirm that they would continue to act as

pre-appointment requirement. After all, not

tendency for EWs to become distanced from

EWs even if immunity was removed?

only does the EW have to be competent but

actual practice in the relevant field.

we need to show that we acted competently

Justice Moses has raised concern over this

in selecting them for the role.

in the past and I think that, due to all of the

JW: Yes. Out of 106 who responded only 14

Lord

factors we’ve discussed, the loss of immunity

said that they would not continue to act. JW: So to a degree, the reduction in the

is more, not less, likely to push experts

number of Experts available could come

into becoming Professional EWs, half a step

you see this being representative of property

about through careful selection by solicitors

removed from their field. This is not a good

professionals too?

rather than a reluctance to act?

thing and runs the risk of affecting the quality

SM: That’s still a significant number.

of evidence available to the courts. JW: That will be interesting to see. There are

SM: Very possibly and I think that particularly

a lot of experts in their field in the profession

in property, where many Chartered Surveyors

JW: I see your point. So how do you see this

but this is not the same as being an EW.

consider that qualification to be enough,

developing for solicitors?

Unless the individual fully appreciates the

there may be a rude awakening amongst

impact of this difference I can see their

those who are not qualified separately as

SM: I think the spotlight will be much more

employers or Indemnity Insurers making it

EW’s. It’s also worth repeating that Jones

focussed on an EW’s conduct and evidence

difficult for them to continue unless they

v Kaney was not concerned with the actual

and that solicitors are going to have to be

undertake specific training. I also think that

opinion expressed, it was concerned with a

more careful about their selection.

solicitors will have an important role in how

failure in the operational aspects of being an

is also a tendency, in property disputes

this develops. After all, what do you look for

EW. If we select an EW who is not sufficiently

particularly, for a surveyor who has been

when appointing an EW?

aware of the implications of this we may be

involved

exposing ourselves to a claim from the client

role of EW without any consideration of

SM: Well, obviously, someone with expertise

for

his suitability or impartiality.

but, you’re right, that’s not all. Being an

qualified for the role.

appointing

someone

inappropriately

negotiations

There

inherit

the

This could

seriously undermine the EW in court and we will have to be extremely careful to consider

EW goes well beyond having an expertise in a particular field. We will always look for

JW: An interesting point and one that I’ve

alternative appointments with clients in these

someone who is well regarded, is able to

not seen raised before in the articles and

situations. How about you?

meet deadlines and who has credibility in the

discussions.

It’s also interesting to draw

the barrister

JW: I think there are three areas that experts

the loss of immunity as a positive thing?

are going to have to pay careful attention to if JW: I think I see it as an opportunity for

they’re to continue as EWs: depth

EWs in all fields to actively promote the

understanding of Part 35, PD 35 and relevant

professional status that should be afforded

Pre- Action Protocols.

to this important role. As you say, expertise

•

Qualification – an ongoing up to

is just the start and it is about time that all

date qualification to demonstrate their EW

parties, clients, lawyers and EWs themselves,

credentials.

recognised this.

•

Procedure

Instructions

–

these

will

need

to establish clearly and precisely what is expected of the EW and how far their duty is to extend.

SM: I suspect there may be more to this latter point than initially meets the eye?

JW: There certainly is. As an example, I’m regularly called upon to give Diminution Valuation evidence in dilapidation claims, sometimes as a Single Joint Expert. I need to be extremely careful to set out exactly what level of investigation is needed into the landlord’s intentions and into the costing of works and to place the appropriate duty on the client/clients to provide full and truthful information if requested. Even if it may be prejudicial to their position.

By setting out

the extent of my duty of care in this regard I minimise the risk of any claim that I’ve fallen short.

SM: I suspect that this is quite straightforward when you’re in a professional environment where you have routine Terms of Engagement but what about those fields where EWs may not be so familiar with such documents.

JW: That’s where Professional Indemnity Insurers can help. underwriters

carry

Nearly all policies and a

Risk

Management

department that can assist with such matters, usually without charge as for them it is reducing the likelihood of a claim.

SM: It sounds as though you, unusually, see

john.williams@mapleleaf-pc.co.uk

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•Injury Photography

Clients’ injuries are photographed using high quality cameras and include identification, measurement and multiple injury images.

•Fraud Investigation Forensic examination vehicles is carried out to determine whether the damage is consistent with the accident circumstances Accident Reconstruction. We provide a full range of reconstruction services ranging from minor mathematical analysis to a fully interactive 3D animated reconstruction. Our engineers are highly qualified and experienced expert witnesses, supporting the contents of their report in court whenever required. Specialised administration teams provide superb backup and assistance to clients, backed by a comprehensive IT infrastructure utilising industry standard software from Glass’s, Audatex and Thatcham and linked to databases such as the DVLA and HPI. Our system can also be linked to most of the popular claim management systems to ensure accurate and fast data transfer.

call 01473 288 018

Tel: 0151 342 9961 www.Laird-Assessors.com

fax 01473 288 863

Expert Witness Services of a Forensic Structural Engineer Chartered Building Surveyor Reports & testimony provided at TCC, ENE, County and Crown Courts, International and UK Arbitrations & Mediations. For Failure of Duty of Care including both M.I.Struct.& M.R.I.C.S. Construction & design defects in Commercial and Residential Buildings. Insurance related matters including recovery actions, collapse, re, ood, storm subsidence and fraudulent claims.

the barrister

Contact Andrew Billingham A Billingham Forensic Consultant 5, Old Hall Close, Pinner, Middlesex HA5 4ST Work 0208 428 2958 Mob 077961 398 049 Email: andrew@abillingham.co.uk web:www.abillingham.co.uk

When it matters most

From Sobriety to Excessive Alcohol Use Concateno provide a range of tests to help you assess sobriety or excessive alcohol use including: •

Urine alcohol and EtG testing

•

Breath alcohol testing

Concateno TrichoTech

•

Hair testing for EtG and FAEE

When it matters most

•

LF and %CDT blood testing

Concateno TrichoTech has over 15 years experience in testing and reporting on child protection cases. In 2010 alone, we tested over 11,000 parents involved in family and

To find out more about how these tests can help your cases contact us on:

care proceedings, demonstrating that our testing provides

Tel: +44 (0)29 2054 0542

Our customers can be confident that they are getting the

protection cases than any other company, worldwide. highest level of expertise and service.

Also available: •

Expert Witness Reports and court appearances

•

Collection services

Concateno TrichoTech 1 Pentwyn Business Centre, Cardiff, CF23 7HB, UK

MCP0002 Ed.001

Email: childprotection@concateno.com

evidence of substance use or abstinence in more child

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