The Barrister

the barrister

#44

ESSENTIAL READING FOR BARRISTERS

13 th A pril - 28 th M ay 2010

E st . 1999

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EASTER TERM ISSUE

the review in its entirety the Society cannot summarise its final assessment here.

3

Fee recovery

The purpose of the conference from a Law Society viewpoint was to capture the views on our members. Such is the sheer size of Jackson’s report the Society is taking care to consider each recommendation and our members’ views before providing a full and detailed response.

Jackson’s proposal to prevent recoverability of success fees and After the Event premiums is understandably unpopular.

However, some initial aspects of the review have raised concerns or drawn particular attention from solicitors and the Society, which require some analysis in this article. Yet they come with the caveat that until we have fully assessed

If implemented, this proposal will mean that success fees and ATE premiums will no longer

Costs – a missed opportunity?

After a gestation period of about twelve months, Lord Justice Rupert Jackson’s Final Report of his Review of Civil Litigation was published in January 2010, a two-volume Preliminary Report having appeared in May 2009. The Final Report contains some potentially useful recommendations and some very puzzling recommendations

By Dr Michael Arnheim, Barrister, Sometime Fellow of St John’s College, Cambridge

6

Des Hudson Chief Executive, Law Society

p.32

Disclosure failures and the public purse Another case collapsed at Southwark Crown

that prosecutors take a uniform approach to

Court in December following disclosure failures

examining material , consistent with the terms of

on the part of the prosecution.

the disclosure manual. “

This was an

ISSN 1468-926X

Features

Digesting the Jackson review The recent Law Society Civil Justice Section conference on the Sir Rupert Jackson review acted as an indicator of what the views of the profession are in relation to the review. It showed there are strong views on all sides of the debate surrounding reforms to civil justice.

price £3.00

Barristers aren’t that bad I expected to enjoy Ian Dodd’s article “Wake up, Wake up”, published in issue forty three of The Barrister and directed at dozy barristers, because I believe strongly that we do need to inject a dose of commercial reality into our practices.

By the time I had finished though, I felt that I hadn’t really been woken up.

By Bill Braithwaite QC, Head of Exchange Chambers

12

Are inaccurate media portrayals of the UK legal system adding to juror confusion?

Legal dramas have been a mainstay of the British screen for a number of years.

From Rumpole of the Bailey and Blind Justice through to Judge John Deed and Kavanagh QC, there’s been no shortage of legal scenes to keep us entertained.

But, how much emphasis should we place on these and other media representations?

By Paul Dockery, Barrister, 18 St John Street Chambers

FPS case, the specialist prosecution group who were examined by the HMcpsI in 2008. A series

If the disclosure manual is drafted in accordance

of recommendations were made in this report,

with the statutory obligations then this would be

two of which specifically dealt with disclosure.

satisfactory. In my experience little has changed

Recommendations are made to address a

over the last 18 months to suggest that this

significant weakness and should attract highest

recommendation has been implemented. There

priority.

seems to be an inconsistent approach to whether

News p.20 Judge crime online p.21 SAHCA supports Bar Council action over Criminal Legal Aid

an unused schedule should be served, some The CPS had been heavily criticised for it’s

prosecutors suggesting that that this should not be

approach to disclosure in the 2007 report and

provided until a defence case statement has been

since then the law has changed with a more

sent. Others take the view that the schedule can

streamlined and amalgamated test, a new code

be served but items should be treated as clearly

and new AG guidelines. The recommendations

not disclosable until a defence case statement

for the FPS included the following

has been served and even after that the FPS lawyer may refuse to disclose

“ The FPS should develop systems for ensuring

material in spite of counsels’ advice or

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the barrister

03

Costs – a missed opportunity?

By Dr Michael Arnheim, Barrister, Sometime Fellow of St John’s College, Cambridge

Overview

and to compensate claimants who would

compared with France in 6th place, Germany

otherwise have taken out ATE insurance

in 7th and the U.S in 8th position. In 2009 the

fter a gestation period

cover, the Jackson report recommends that

World Economic Forum’s Competitiveness

of

twelve

for certain (unspecified) types of litigation a

Report likewise ranked Germany 4th out of

months, Lord Justice

losing claimant should not have to pay the

134 countries for the efficiency of its “legal

Rupert Jackson’s Final

successful defendant’s costs at all,

but an

framework” – with the UK only in 18th place.

Report of his Review

unsuccessful defendant will still have to pay a

Among other things, efficiency covers value

of Civil Litigation was

winning claimant’s costs (p.xvii). This would

for money, and German legal costs are among

published in January 2010, a two-volume

be particularly unfair if applied to personal

the lowest in the world, averaging out at

Preliminary Report having appeared in

injury claims

about 14.4% of claim value. (See Jackson’s

May 2009. The Final Report contains some

private person or small business.

Preliminary Report, vol II, p. 565). .

very puzzling recommendations, but above

Another puzzling recommendation is that

These are dry figures. But the alarming thing

all, in my opinion, it misses the opportunity

the hitherto sacrosanct indemnity principle

is that, of all the jurisdictions with which I am

to get to grips with most of the real issues,

be abolished. This is a reference not to the

familiar, that of England and Wales is the one

which I list towards the end of this article. I

indemnity basis of assessment of costs but

where it is most likely that the cost of even

conclude by looking at the highly successful

to the indemnity principle, which is defined

a comparatively small court-case could wipe

simple German model, which I believe would

as holding “that a successful party cannot

out a person’s life savings and force them into

go a long way towards solving the serious

recover from an unsuccessful party more

bankruptcy. By contrast, in the other legal

costs problems that we face here today.

by way of costs than the successful party is

systems I have mentioned the likelihood of

liable to pay his or her legal representatives.”

such an outcome is extremely low.

A

about

in which the defendant is a

potentially useful recommendations and some

Potentially useful recommendations

(p. x). So, while the report is concerned to

The Jackson report identifies conditional

keep costs down it is here suggesting that in

fee agreements (“CFAs”) as “the major

certain circumstances a winning party could

contributor to disproportionate costs in civil

be awarded more than that party would have

litigation in England and Wales”. The chief

had to pay its own lawyers!

culprits targeted are lawyers’ success fees

connected with a recommendation allowing

and after-the-event (“ATE”) insurance, which

contingency fees, which, as distinct from

the report recommends should no longer be

conditional fees, are not currently allowed in

recoverable from

unsuccessful defendants.

contentious matters. This recommendation

These suggestions will of course be welcomed

clearly needs to be reconsidered. Assistance

by defendants,

many of whom are these

may possibly be had from other jurisdictions,

days finding themselves pursued by unduly

like those of the United States, where

emboldened claimants. But there is a danger

contingency fees do not cause any such

that these changes may enable defendants

problems.

This may be

here so high?

My answer covers a number of factors, most of which are not even mentioned in the Jackson report:

•

Duplication: The high degree of

unnecessary expense resulting from the twolawyer model that is still prevalent here but is absent from most other jurisdictions.

•

Retainer system: The client pays a

solicitor a “retainer”, after which the solicitor can run up costs without consulting the client,

in libel cases – usually media magnates – to go back to the balmy days when they could

The question is: why are legal costs

who may then be faced with a bill beyond

Missed issues

anything he originally contemplated, and

That legal costs in England are far higher than

which he can then pass on to somebody else

in most other jurisdictions is not in doubt.

if he is fortunate enough to prevail at trial or

Doing Business

in a settlement. If these costs are challenged

Puzzling recommendations

report places the United Kingdom in 23rd

in detailed assessment, additional costs are

Perhaps to prevent this from happening

position for ease of enforcing contracts – as

incurred.

simply shrug off the threat of litigation as hardly more of a nuisance than a gnat. .

The World Bank’s current

04 •

the barrister

The hourly

Legal fees (not including court fees) range

Yet the great beauty of the German system

billing system in which the more slowly

from less than 1% of the value of the claim in

and the reason it has worked so well over

a lawyer reads the more he can charge –

the biggest cases to about 20% in the smallest

a period of nearly 150 years is that it is

coupled with the fact that there is no check

cases. So, in a case worth, say, 10,000 euros,

applicable across the board, as applicable

on how many hours he has really spent on

the losing party will have to pay the winner

to high-value as to low-value cases, to

doing anything and the fact that he does not

about 2,000 euros in costs. At the other end

commercial litigation as to personal injury

normally even have to produce an itemised

of the scale, if the value of the claim is 30

claims, to product liability as to administrative

breakdown of his costs unless ordered to do

million euros, the unsuccessful party will be

law. It allows lawyers to charge fairly for their

so by a court.

liable to pay the winner just under 1% of the

work without being greedy – and it enables

claim,

citizens to go to court without the threat of

•

Dyslexic premium:

Single judge:

or about 275,000 euros – which is

In Germany, for

the highest award of costs that can be made

example, a single trial judge is uncommon,

in any single case no matter how high the

except in low-level local courts.

There is

value of the claim. (Costs are scaled down

more usually a bench of two or more judges

proportionately if the judgment sum is less

sitting together, sometimes with the addition

than the amount originally claimed).

of lay assessors. In the U.S. trial by jury is

Preliminary Report, vol. II, p. 555ff.).

financial ruin hanging over them.

(See

a constitutional right even in civil courts (as long as the claim is for more than 20 dollars!).

Civil jury trials were common in England too until the 1930s, and the main reason for the

Rationale

present system was expense. Yet, allowing

The rationale behind this sensible system is

one person to decide a case on their own is

simply that every court-case, no matter how

not a guarantee of justice and tends to cause

small, entails a certain minimum amount

a proliferation of appeals – and further costs.

of work – and, by the same token, that the amount of work does not grow in proportion

•

Tail wagging the dog:

Once costs

to the size of the claim.

reach the high level that they have now done in England & Wales, where it is by no means

It is also based on several fundamental

unknown for costs to outstrip the sum in

German legal principles

issue, costs are likely to loom larger than the merits of the case, which does not bode well

•

Rechtsstaat: or the rule of law,

for justice.

By contrast, on the continent,

which in Germany is clearly

notably in such jurisdictions as France and

differentiated from the rule of

Germany, costs are hardly mentioned at all –

lawyers (and judges).

because they do not and cannot play a major

•

Transparency

role.

•

Proportionality

•

Equality before the law

German sliding scale

The preliminary Jackson report devoted a

Like the English system, in Germany the loser

whole chapter to the German system of costs

normally pays the winner’s costs – what the

(Chapter 55), but it is dismissed in five lines in

Jackson report calls “two way cost shifting”.

the final report (p. 172), which does however

But there the similarity ends.

The German

recommend “a comprehensible scheme of

system is based on a sliding scale in which

fixed or predictable costs”, but only for fast

costs are inversely proportional to the value

track cases.

of the claim.

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

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06

the barrister

Barristers aren’t that bad

By Bill Braithwaite QC, Head of Exchange Chambers

I

expected to enjoy Ian Dodd’s article

That involves recognising at the very outset

If the product is high quality advocacy, it

“Wake up, Wake up”, published in

that we are a business. I would add, for

then becomes comparatively easy to identify

issue forty three of The Barrister and

those who think it inappropriate to describe

the customer; all those involved in disputes

directed at dozy barristers, because

the Bar as a business, that it is a business

which would benefit from, and justify, highly

I believe strongly that we do need to

providing professional services. I would

specialist consultants.

inject a dose of commercial reality

also emphasise that it is possible to run

into our practices. By the time I had finished

a successful business in accordance with

Turning that basic approach into something

though, I felt that I hadn’t really been woken

the best of the important traditions of the

more

up. Partly because some chambers, including

Bar, for example independence, integrity and

ensure that the product (ie the barristers and

mine, have already considered the points

honesty, as well as excellence.

the services they provide) is of a sufficiently

practical,

good

management

will

high standard, and will identify the market.

he made, but mostly because I felt that he was not putting forward any concrete

The first necessity for a successful business

suggestions for improvement. No criticism

is to identify its product and its customers.

The more experience I gain of managing

of Ian, but I feel that the important question

What is the product of the Bar? Nowadays,

my own chambers (approaching 20 years),

is not what the Legal Services Act allows

that is not always easy to identify. We

the more convinced I am that we need the

us to do, but what we ourselves need to do

hear worries about higher court advocates

involvement of outside professionals. We

to provide and sell a worthwhile product.

encroaching on the traditional work of the

head-hunted our Chambers’ Director from

When Sir David Clementi reported originally,

Bar, for example in the Crown Court. The

a major accountant nearly 20 years ago, and

I went through the report avidly, looking

truth may be, though, that we need to think

have never regretted it. At the time, he was

to see whether he was potentially opening

more clearly about our product. Is a barrister

one of the first, genuine outsiders to take

doors for progressive chambers. In the end,

really needed for a minor or medium Crown

over a significant set, and we benefited from

I thought that we probably did not need to

Court case? If we really do have a specialised,

his fresh outlook and business principles.

change our basic business structures at this

high quality product, is it appropriate for the

Since then, we have employed, or worked

stage (as distinct from our business practices)

smaller cases? The same question may need

with, professionals from various different

radically to enable us to compete successfully

to be asked in relation to small personal

areas – eg IT, PR, marketing and recruitment,

in an open market. I feel that we should be

injury claims, where there is now, and has

and we have found the experience generally

able to make the present structure work

been for years, huge pressure on costs. In

worthwhile.

far more effectively, and then perhaps be

fact, I think that we need to recognise that

alert to opportunities offered by alternative

barristers are not necessary in much of the

So far, nothing requires the Legal Services

structures. I am confident that many sets of

work they currently perform.

Act.

Perhaps our product is, or should be,

Similarly, changing the traditional chambers

advocacy which can only be supplied by

structure would not necessarily need a new

Over the last few years, several chambers

highly specialist advocates. I use the word

form of business vehicle. Many chambers will

in Liverpool and Manchester have either

“advocacy” in its widest sense – not just

still be operated on the old fashioned system

dissolved or merged, suggesting that there

appearing in court, but all the preparation

of one person one vote, and will require

are significant pressures on the Bar in the

and presentation issues involved in any

votes for many everyday business functions.

North West. There are two very large sets

contentious issue. In catastrophic personal

That may have to change, but it can be done

in Birmingham, resulting from takeovers

injury, which is the area I know, it is always

simply by refining a management committee

or mergers, which may indicate that the

obvious that value is only added to a claim

structure, so that it resembles what is done

pressures act more severely on smaller sets,

by a barrister who is truly specialised in the

in many large professional firms. We could

rather than larger ones. There are similar

field, and who has had significant experience

devolve power to a small committee, which

stories to be told in all areas of the country.

beyond what can be gained by others.

would be accountable for bad management.

Those facts might suggest that size is what

So maybe we should concentrate on high

We could even adopt a clearer corporate

makes chambers survive, but I don't believe

quality advocacy in all fields – our product

structure, involving a chairman (executive or

that to be the case. Size on its own merely

then is the ability to use our training,

non executive), managing director or chief

delays collapse. I think that good business

learning, expertise and experience to add

executive officer, finance and marketing

management is what makes the difference.

significant value to any claim.

directors etc, and a board. This is something

chambers are doing just that, and will thrive and survive by dint of good management.

the barrister

07

that we have been discussing for years, and

with and work alongside its solicitor clients”,

I am not saying that we do not, or will

I have never thought that it needed a new

but I am not sure that I necessarily agree. If

not, need different business structures. My

statute to allow us to do it.

we seek to provide only high quality advocacy

vision for my own chambers is to have

services, only in cases which really do need

offices in major cities, providing the core

Of course, if we went one step further and

high quality advocacy, we can theoretically do

business of high quality advocacy, and having

wanted to create a shareholder owned and

it through the existing structures. There are

a national voice to explain to the end users,

led corporation, then we would need to look

areas in which we might want to widen our

in addition to professional clients, why they

at the actions permitted by our rules, and the

product; for example, pursuing the possibility

need our product. Surrounding that core

statutory framework. Whether a company

of employing specialist outsiders to add to

business, we would have several non-core

owned by shareholders, employing some of

the nature of the service we provide. I accept

but complementary businesses attached.

the barristers in the chambers, would be

that my views may not be representative of

That would need a different structure.

workable would be open to debate. Whether it

the wider body of the Bar, and that Ian may

would be acceptable to those involved would

have different, and unfortunate, experience

need much more discussion. Also, it would

compared to mine. My chambers have grown

need clear analysis and justification. If there

organically to over 120 barristers, about 15

is no immediate need for operating capital,

silks, turning over about £22 million, and I

what would be the value of shareholder

think we have done it by consistently good

ownership? On the other hand, if the market

management.

changes in such a way that we need capital, some form of corporate structure, not yet

I would disagree that “chambers do not seem

permitted by our rules, could well provide

to be responding to these changes”. On the

the answer. At least one set of chambers (not

contrary, I think that some of the chambers

mine) is actively considering this avenue.

spread across the country give all the signs of being well managed, and providing a first

Ian Dodd feels that “fundamental reforms …

rate product to a market which they have

are required to enable the Bar to compete

identified, developed and marketed.

Bill Braithwaite QC, Exchange Chambers

08

the barrister

LCN – what now?

By Professor Allan Jamieson, The Forensic Institute

T

he debate on the use of DNA profiles obtained from very small amounts of cellular material (Low Copy Number (LCN), or Low Template DNA (LTDNA)) took another turn in a judgement delivered by the Appeal Court in December1.

Although acknowledging that none of the cases in front of it were challenging the LCN technique that was used in them per se, the Court heard, de benne esse, evidence on behalf of the appellants on the reliability of the LCN process from Dr Bruce Budowle (former head of the FBI’s DNA laboratory) and me.

The Court stated with regard to LCN evidence, “i) Low Template DNA can be used to obtain profiles capable of reliable interpretation if the quantity of DNA that can be analysed is above the stochastic threshold – that is to say where the profile is unlikely to suffer from stochastic effects (such as allelic drop out mentioned at paragraph 48) which prevent proper interpretation of the alleles. ii) There is no agreement among scientists as to the precise line where the stochastic threshold should be drawn, but it is between 100 and 200 picograms. iii) Above that range, the LCN process used by the FSS can produce electrophoretograms which are capable of reliable interpretation. … However a challenge to the validity of the method of analysing Low Template DNA by the LCN process should no longer be permitted at trials where the quantity of DNA analysed is above the stochastic threshold of 100-200 picograms in the absence of new scientific evidence. … iv) As we have mentioned, it is now the practice of the FSS to quantify the amount of DNA before testing. There should be no difficulty therefore in ascertaining the quantity and thus whether it is above the range where it is accepted that stochastic effects should not prevent proper interpretation of a profile. v) There may be cases where reliance is placed on a profile obtained where the quantity of DNA analysed is within the range of 100-200 picograms where there is disagreement on the stochastic threshold on the present state of the science. We would anticipate that such cases would be rare and that, in any event, the scientific disagreement will be resolved as the science of DNA profiling develops. If such a case arises, expert evidence must be given as to whether in the particular case, a reliable interpretation can be made. …”

To the casual reader, the phrase, “Low Template DNA can be used to obtain profiles capable of reliable interpretation if the quantity of DNA that can be analysed is above the stochastic threshold”

may be construed as being an open door for the admissibility of LCN evidence. However, this decision needs careful dissection to see the potential impact on the presentation of such evidence because it is these stochastic effects, appearing more frequently as the amount of DNA reduces, that are the trouble.

This of course was the central issue that critics, perhaps me being the most prominent in the UK, have been highlighting as the single major problem with the technique.

Stochastic variation leads to unreliable interpretation.

This view is explicit in the judgement which accepts that the presence of such variation, “prevents proper interpretation of the alleles”. “ii) There is no agreement among scientists as to the precise line where the stochastic threshold should be drawn, but it is between 100 and 200 picograms. iii) Above that range, the LCN process used by the FSS can produce electrophoretograms which are capable of reliable interpretation” This is a significant conclusion when considered in terms of the material offered as validation of the LCN technique: a technique specifically designed to analyse amounts of DNA below 100pg and to produce reliable profiles even in the presence of stochastic effects (allelic dropout in particular).

A ‘binary’ or ‘biological’ model was introduced by the proponents ostensibly to account for these stochastic effects. It was recognised that this was an inferior approach to the more complex continuous version.

This ‘consensus’ approach required that an allele would only be regarded as being associated with the sample if it occurred twice (in any number of runs).

The Court appears to be saying that the ‘safe’ range for DNA profiles is actually above the level for which the technique was designed, and have agreed that the very phenomenon claimed to have been overcome by the consensus approach is compromised in precisely the way that critics have been saying for some time. I have personally endorsed many LCN profiles because they did not feature stochastic effects. Indeed, in the case of Reed and Reed my statement said that there was no credible challenge to the identification of the alleles because of the lack of stochastic effect in the profiles – it was not an LCN case. The profiles in the Reed case actually showed other problematic features associated with there being too much DNA for the LCN technique; overamplification.

Subsequent work in that case showed that a profile could actually be obtained from the samples using the standard approach.

The conclusion of the Court that, “… a challenge to the validity of the method of analysing Low Template DNA by the LCN

process should no longer be permitted at trials where the quantity of DNA analysed is above the stochastic threshold” would therefore appear not to alter the preAppeal position, at least insofar as challenges presented by me (and I am unaware of any others).

The judgment continues, “it is now the practice of the FSS to quantify the amount of DNA before testing.”

The entire thrust of my evidence at Omagh, and in many trials since, was that without such quantitation it was impossible for analysts to take reasoned account of stochastic effects. At the Omagh Bomb trial I said in a statement, “We know that all of these effects are dependent on the amount of starting DNA, yet the LCN technique by definition does not know how much DNA it is testing, and drop-in rates are variable. Therefore it is impossible to know how to reliably incorporate data on allelic drop-out or drop-in.” [drop out is a stochastic effect] The Court now appears to have accepted this argument, and the FSS now routinely quantify the amount of DNA. The need to quantify to ascertain how little material is there should not be confused with the need, identified in the Caddy Review2, to quantify to avoid putting too much DNA into the process to avoid the phenomenon of overamplification.

“There should be no difficulty therefore in ascertaining the quantity and thus whether it is above the range where it is accepted that stochastic effects should not prevent proper interpretation of a profile” So, stochastic effects are now accepted by the Court as a problem. This has always been the position of the critics (at least this one!) and may have repercussions in other cases where Courts have admitted LCN evidence despite the presence of significant stochastic effects in the profiles.

In another Appeal case that was originally linked to the Reed case, my written advice read, “I have examined the profiles produced in this case. The LCN technique frequently suffers from what are termed ‘stochastic effects’. These are the consequence of the extremely low amounts of DNA that the technique is claimed to amplify. These effects include the presence of alleles (pieces of DNA) that are not associated with the sample (termed ‘drop-in’), and the absence of alleles that are associated with the sample (termed ‘drop-out’), both of which are thought to lead to the frequently observed very poor reproducibility in some samples subjected to the technique.

the barrister

In this case, there was a consistency and completeness [i.e. no stochastic effects] in the profiles and the conclusions of [the scientist] were reasoned and reasonable. I can see no credible challenge to the DNA profiles.”

This clearly demonstrates that the presence of stochastic effects, regardless of the means by which the profile is produced, is the key problem.

The Court goes on, “There may be cases where reliance is placed on a profile obtained where the quantity of DNA analysed is within the range of 100-200 picograms where there is disagreement on the stochastic threshold on the present state of the science. We would anticipate that such cases would be rare and that, in any event, the scientific disagreement will be resolved as the science of DNA profiling develops. If such a case arises, expert evidence must be given as to whether in the particular case, a reliable interpretation can be made” The issue that now arises is what happens to all of the cases with sub 200pg (or unmeasured) levels of DNA presented in previous cases?

Does the Appeal Court judgment now provide ‘new evidence’ regarding the reliability of LCN evidence in past cases where the DNA was never quantified and may show evidence of STEP081104 stochastic effects?

If so, how the expert Advocacy ad will 180x125.qxd

evidence be prepared and by whom? It is clear that in many cases the defence scientist has simply accepted the LCN technique in line with the dominant UK view of the LCN providers and advised instructing solicitors accordingly.

Despite the criticism levelled by the Court, it would appear that my views have been supported by, among others, the former head of the FBI DNA laboratory and the Appeal Court itself. The court accept that I have, “given evidence in so many Low Template DNA cases since then on the strength of the observations in R v Hoey that he has acquired a degree of experience from these cases, his discussion with others and his reading of papers.”

The ‘papers’ include all of the experimental and validation material disclosed at my request from the laboratories offering LCN. To my knowledge, we are the only organisation to have achieved this depth of assessment of the data, not only for the claimed validation of the technique, but for the experiments done by the same laboratories on transfer of low amounts of DNA between items.

This judgement appears to be an acknowledgement and acceptance of the main criticisms levelled at the use of the LCN technique at the levels of DNA for which it 09:19 was designed.

24/11/08 Page 1 It remains to

09

be seen what reaction will follow in terms of future and past prosecutions based on the technique. Following the Appeal Court decision in Doheny & Adams3, two eminent FSS scientists wrote, “The recent judgements from the Court of Appeal have provided guidance on the presentation of DNA evidence. This guidance has however, as far as the forensic scientist is concerned, actually added to the confusion4” .

Is history repeating itself?

Professor Allan Jamieson The Forensic Institute www.theforensicinstitute.com 0141 890 1111 1 Neutral Citation Number: [2009] EWCA Crim 2698 2 A Review of the Science of Low Template DNA Analysis available at http://police. homeoffice.gov.uk/publications/operationalp o l i c i n g / R e v i e w _ o f _ L o w _ Te m p l a t e _ DNA_12835.pdf?view=Binary 3 EWCA Crim 728 (31st July, 1996) 4 Lambert, JA, and Evett, IA., The impact of recent judgments on the presentation of DNA evidence. Science & Justice 1998: 38(4), 260-270

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10

the barrister

the disclosure officer’s decision

within the fixed fee no matter how much

local authorities and local health services to

to do so. Problematically these

is required or examined and under the

agree effective third party unused material

schedules are often incomplete or

VHCC system whereby material examined

protocols.

inaccurate and are provided so

is on a strictly monitored and limited basis.

late in the day that crucial decisions cannot

Nevertheless proper preparation of a client’s

The Disclosure Manual Chapter 12 is clear

be made in respect of applying to vary or

case demands that this work be approached

about a Prosecutors’ objective responsibilities;

discharge a restraint order as material has

seriously and thoroughly. Blanket refusal

“12.1. The prosecutor must always inspect,

not been made available. When unused

to disclose or an erratic and inconsistent

view or listen to any material that could

schedules are drafted inaccurately or in a

approach to disclosure inevitably causes

reasonably

misleading way there is always the danger

wasted

8

undermining the prosecution case against

that exculpatory material will be disclosed

applications and other hearings which could

the accused or of assisting the case for the

too late to be used or not at all as happened

be avoided. The CPS and the FPS may be

accused.

in a trial recently when we had not been

overworked and underfunded, although any

provided with a piece of unused evidence

practitioner carrying out publicly funded

12.18. In deciding what material should be

which, had we seen it, we would have been

work is in the same position, but their job

disclosed (at any stage of the proceedings)

able to make a hearsay application and more

would be easier and their success rate in

prosecutors

accurately convey the circumstances of the

terms of convictions would be higher if they

the material satisfies the disclosure test.

alleged offence to the jury. Each disclosure

adopted fully the recommendations of the

Prosecutors should resolve any doubt they

request, if it is responded to at all, precipitates

Inspectorate. It must be a case of applying

may have in favour of disclosure, unless the

a stream of correspondence and inevitably

the first principles. During the investigation

material is sensitive and to be placed before

results in a hearing which is wasteful and

and before consideration is given to charging,

the court in a PII application.

time consuming for all concerned.

investigators must have complied with the

p.1

court

time

through

section

be

considered

must

capable

determine

of

whether

CPIA 1996 section 23 Code of practice.

12.19. If material substantially undermines

The Fraud Prosecution Service Inspectorate

It is fundamental to the adversarial system

the prosecution case, assists the accused

identified a case which illustrated the risk

that the job of the police is to expeditiously

or raises a fundamental question about the

of accepting police entries on the schedule

investigate

in

prosecution, the prosecutor will need to

of unused material without examining the

accordance with the CPIA and the relevant

reassess the case in accordance with the

material. The indictment was stayed when

codes pursuing all reasonable lines of enquiry

Code for Crown Prosecutors, and decide after

it was discovered that the bad character of

whether these point towards or away from

consulting with the police whether the case

a main prosecution witnesses which may

the suspect (Disclosure Code of Practice 3.5).

should continue.”

have undermined his credibility was not

Defence solicitors can investigate on a limited

disclosed to the prosecution, defence or court

basis, having no statutory powers at all, and

If this has been adhered to, there will be

until the day before the trial was due to start.

are so dependent upon the police to retain

little risk of cases collapsing when the

This kind of problem had been identified

and record all relevant material obtained in

prosecution are forced to disclose unused

in the CPS HMcpsI Report of 2007 and a

the course of a criminal investigation.

material. The Government considered a

and

gather

evidence

recommendation made that the CPS Policy

series of unsuccessful fraud cases in the

Directorate should consider the merits of

The CPS follow-up report of December

the prosecution lodging previous convictions

2009 notes that there has been only limited

fraud act.

of prosecution witnesses with the Judge in

progress in examining unused material

is the Prudential, [R v Melton and others]

Crown Court trials.

where

This recommendation

have

which was stopped for abuse of process

provided is inadequate, that there has

following large scale disclosure failures on

Criminal Justice Reform and the decision was

been limited progress in taking steps to

the part of both the alleged victim, police

taken not to implement it.

ensure that details of non-sensitive unused

and prosecution. The ruling in that case

material which was not initially on the MG6C

was salutary, the police and prosecution

Disclosure is treated as the elephant in the

Schedule are provided to the defence at the

had abrogated their responsibilities onto

room by legislators who consider defence

earliest opportunity, that there has been

the Prudential and disclosure requests were

requests as an attempt to delay or to derail

limited progress in taking steps to ensure

ignored for 2 or 3 years. In the recent case at

proceedings.

that disclosure officers only seek to withhold

Southwark the police had not obtained all the

has been the consequent cost to the public

items

material

relevant documentation from a witness and

of disclosure to the defence, particularly

schedule when there is a real risk of serious

following repeated requests to the FPS did not

in

anxiety

harm to important public interest and that

do so until a court order was obtained. Again

should be completely allayed in light of the

such assertions are ratified by a senior officer

this was evidence that the police should have

implementation of the litigator fee which

and that there has been limited progress

obtained 2 years before and if they had done

includes preparation on unused material

in respect of liaison between the police,

so, the defendant would never have been

serious

fraud

cases.

This

listed

description

on

the

the

police

One of those cases referred to

was considered by the CPS and the Office for

The other major concern

the

research paper 06/31 which preceded the

sensitive

the barrister

11

charged and more importantly would not

considered and a decision was taken not to

to prepare each case thoroughly rather than

have been remanded in custody.

implement it.

treating every defence request for disclosure

Systems need to be improved within the

The review of the Fraud Prosecution Service

CPS and the FPS to encourage a consistent

made a recommendation that the FPS

approach.

as unmeritorious or improper, would be a

There has been no structured

should develop systems for ensuring that

approach to provision of training in both the

prosecutors take a uniform approach to

police the CPS in a structured way.

examining unused material, consistent with

There

was a joint national training initiative when

the terms of the disclosure manual.

This

the new disclosure provisions of the Criminal

should be endorsed wholeheartedly.

A

Justice Act 2003 were introduced and the

disclosure

disclosure manual was published but nothing

which was a role that the previous director

formalised since, and as the follow-up report

of the FPS had undertaken informally having

notes “The training remains ad-hoc”.

identified inconsistency in the approach

champion

was

step in the right direction.

Morag Rea, Solicitor, Byrne and Partners

recommended

between lawyers. The FPS too, at the time The CPS Business Development Directorate

the FPS Review was published, had had no

was required to assess the cost implications

joint training on disclosure.

and the potential benefits of amendment

and considered approach to disclosure is

to the case management system to include

essential to the adversarial process to allow

a

and

a person to defend themselves and to test the

sheet

evidence that is called against them. A more

This

productive approach to disclosure which

recommendation in the first report was fully

respected the defence solicitor’s responsibility

an

separate

disclosure

updatable

(2008

Report

review

electronic paragraph

tab

record 7.13).

A reasonable

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12

the barrister

Are inaccurate media portrayals of the UK legal system adding to juror confusion?

Legal dramas have been a mainstay of the British screen for a number of years. From Rumpole of the Bailey and Blind Justice through to Judge John Deed and Kavanagh QC, there’s been no shortage of legal scenes to keep us entertained. But, how much emphasis should we place on these and other media representations? Here, barrister Paul Dockery, of 18 St John Street Chambers, talks about the dangers of relying on television shows to shape our legal knowledge.

T

he legal landscape, as

24-hour breaking headlines has changed the

copy but not actively seeking it. This is

shaped by the media

way we consume news. Gone are the days of

understandable, when considering the extent

buying a morning paper to find out what’s

of media coverage for high-profile cases.

Two out of three jurors do

happening at home and further afield. Now,

It is inevitable jurors will encounter some

not understand the legal

there’s every chance we have heard the day’s

form of media commentary or analysis. It

directions given to them by

lead stories several times before leaving the

is impossible and unrealistic to enforce an

judges, according to a report prepared for

house, whether it’s waking up to the radio

internet ban, but judges must remind jurors

the Ministry of Justice. This study, conducted

headlines, catching the breakfast news or

they should only focus on evidence given in

by University College London (UCL), looked

powering up your iPhone to access BBC’s

court.

at more than 68,000 verdicts over a period

breaking news as it happens. With so many

of two years to ascertain the workings of

media channels at our disposal, it is little

Most traditional forms of media adhere to

jury rooms. When its findings were revealed

wonder jurors are completing case research

court rules when it comes to reporting but

last month, the media was rife with calls for

outside of court.

the internet has opened the virtual world to entries and opinion from other sources, such

changes to the Contempt of Court Act and theories on how much jurors were open to

The Lord Chief Justice, Lord Judge, raised

influence from the media.

concerns last year about the rise of the

as bloggers.

‘internet generation’ and how advanced The second finding from the report which

technology has altered our ability to gain

Strengthening

drew the most gasps was the news jurors

information through listening. He suggested,

school – the American way

legal

education

at

frequently rely on internet research to

in time, the courts would need to adjust to

increase their knowledge of cases which they

accommodate this new thirst for multimedia

A lack of legal education which leaves jurors

are sitting on. This can lead to serious risk of

information, adding “If a generation is going

forced to return verdicts without really

miscarriage of justice. In 2008 alone, three

to arrive in the jury box totally unused to

understanding their directions from the judge

juries were discharged from crown court

sitting and listening but is using technology

is catastrophic. This is not only a highly-

trials because of ‘inappropriate use’ of the

to gain the information it needs to form a

pressured situation to face but can also have

internet. This has led to a call for jurors to be

judgement, that changes the whole orality

devastating consequences for those whose

given more clarity and guidance from judges

tradition.”

fate rests in the hands of jurors. How can we redress this balance and ensure jurors have

in order to reach a decision but the report’s author, Professor Cheryl Thomas, said the

As Lord Judge points out, we are now living in

the legal nous to effectively make decisions

jury system is not failing in its duty. Juries

a world inextricably linked with the Internet

on what they hear in court, not what their

are operating efficiently, but need further

so it is not surprising jurors will reach for

outside research teaches them?

assistance.

answers online if they feel they are not being led appropriately in the courtroom. This is

Perhaps we need to go back to the grass roots

If juries are not receiving guidance in court,

a sign of the times but does have worrying

of education and start teaching children about

where are they seeking information?

implications for future justice.

the legal system from an early age. I’m not

Internet – the route to contempt The evolution of the internet and access to

suggesting we arrange trips out to Hammicks Of the jurors questioned as part of the UCL

Legal Bookshops, but we could learn a lesson

report, a number admitted ‘seeing’ internet

from educational institutions Stateside.

the barrister

13

American schools include lessons on the

Old Bailey was based on barrister William

is talking steps to ensure it is broadcasting

US constitution and Bill of Rights as part of

Garrow.

accurate legal proceedings. This example

their standard education programme. Pupils

entertaining but again courted controversy

are taught about the legal system through

over its lack of attention to legal accuracy.

real examples of courtroom battles and the

Guardian columnist Marcel Berlins criticised

historical struggle for fairness and equality.

the BBC for including a wooden gavel in

Viewing legal proceedings from political

scenes – a prop not used in English courts –

and historical perspectives adds depth to

among other inaccuracies.

The

programme

was

certainly

Realism should be future route As a legal specialist, it is easy to spot when

understanding and gives pupils examples of how the legal system operates.

should be followed by all.

writers have not consulted professional The inclusion of a gavel in courtroom scenes

advice when drafting scripts and directing

may seem a minor point, but this is what

performances. When television acts as a

Educating people from school age would

viewers can interpret this as being truly

frame of reference to viewers, it can cause

ensure a basic understanding of how the

representative of legal proceedings. With

confusion if it is not realistic.

legal system works, regardless of whether

the exception of those who have witnessed

they pursue a career in the law. This would

a British court in action, the general public

We must take the findings of the UCL report

negate the need to seek answers from Google,

opinion of legal proceedings is largely shaped

on board and deal with the root problem.

on simple basic legalities.

by what we view in the media, in particular

Jurors cannot make balanced decisions in

on television.

they are not in full possession of the facts

Small screen sends unclear messages

and legal understanding. We must educate Television shows also cause confusion as

the public on our legal system to ensure

Having looked at the influence the internet

they often favour the US judicial system. With

miscarriages of justice are not the final,

has on a member of the public’s legal

popularity of shows such as Boston Legal as

disastrous result. If media is the route to legal

understanding – both in terms of research

well as blockbuster interpretations of legal

understanding for the general public, let’s

and case coverage – we must examine the

novels by authors such as John Grisham, it is

ensure we are presenting an accurate and

role of television.

not surprising we view American courtroom

true representation at all times to make sure

scenes as the universally accepted form of

our judicial system and justice is more robust

Court cases and legal proceedings are

law. Often you can spot Americanisms in

for future generations.

commonplace on TV. Programmes such as

British shows, showing research has been

This Life gained a cult following in the UK

carried out on a system which differs largely

but it’s worth considering how the accuracy

to ours.

of these portrayals can affect consumer understanding.

British institutions like the BBC therefore The executive producer of ITV hit series

have a vital role to play in educating the

Kavanagh QC, Ted Childs, has happily

masses, by providing accurate

admitted British dramas are not devoted

projections. An opportunity to represent

to factual accuracy. He said: “Television

legal proceedings accurately should not be

depictions of courtroom dramas are a

ignored, as a means of education as well as

travesty of the truth. We press into an hour

entertainment.

courtroom

a process that should last for several weeks.”

As legal advisor to Coronation Street, I work The legal series Criminal Justice – which was

with the writers to ensure their legal cases are

written by a former barrister - drew mixed

accurate and legally realistic. I am questioned

opinions when it aired in 2008. Timothy

when script meetings take place to advise on

Dutton QC, chairman of the bar, said it should

realistic outcomes for court cases; such as

not be viewed as a true representation,

whether a custodial sentence is likely.

stating: “Criminal justice is not a game and it is a travesty to suggest practitioners see it

I became involved with the team after

in that way.”

highlighting a number of legal inaccuracies to the Street’s archivist. It’s reassuring to

The BBC’s Garrow’s Law: Tales from the

see one of the UK’s best-loved programmes

14

the barrister

Admissibility of DNA evidence

By Felicity Gerry, Barrister, 36 Bedford Row

R

eaction is overwhelmingly positive to news that the first case to be featured on the BBC's Crimewatch programme has been solved after a DNA profile produced from evidence at the scene was linked to a family member of the killer on the national database leading the police to the defendant.

Paul Stewart Hutchinson pleaded guilty to the murder of 16-year-old Colette Aram and was sentenced to life imprisonment with a minimum term of 25 years. The evidence against him included a DNA match, fingerprint, opportunity and confession.

However, as will be explained in this seminar, a DNA ‘match’ on the National DNA database might be wrong but the evidence could still be admissible in a criminal trial.

HOW ARE SAMPLES OBTAINED? In most cases a sample is obtained from a scene and compared to a sample taken from a suspect. Where there is no known suspect, the comparison is done with those existing samples held on the national DNA database (persons previously arrested).

In some cases, defendants will argue that their DNA should not have been retained after arrest where no action was taken (See case of S. AND MARPER v. THE UNITED KINGDOM (Applications nos. 30562/04 and 30566/04) JUDGMENT STRASBOURG 4 December 2008.

WHEN IS DNA EVIDENCE ADMISSIBLE?

very low quantities of DNA. A tiny sample is recovered and copied then each component seen is given a number. It is as if a drop is turned into a pond then the experts go fishing for components and try to agree which components are present. Each dip might bring up a different component but the ones that appear the most are components which, according to expert opinion, can be included in the sample and, in some cases, given a statistic as to how many other people might be likely to have the same DNA. Even where such a statistic cannot be given, the Court of Appeal said that such low quantities could be used to say that the defendant was not excluded from the potential pool even though it could not be said how many other people could be included.

Partial profile

Full profile

WHAT IS DNA? DNA is a complex chemical found in cells of the human body carrying genetic information (half from each parent) which determines a person’s physical characteristics. The DNA of any individual is the same in all their bodily fluids and tissues. Except for identical twins, each person’s DNA is unique although the science has not developed enough to every difference between every person so the science deals with regions of DNA. This means that DNA profiling techniques can be used to exclude someone as a donor of a particular sample but it cannot prove identity.

In most cases, the scientists can provide a match probability dealing with whether a stain came from the suspect or from another individual with the same STR profile so, for example people who are related might share STR profiles so the match probability statistic can be calculated with that in mind.

WHAT IS DNA EVIDENCE? The form of DNA analysis used to test samples in most criminal cases is called STR (short tandem repeat) profiling. A DNA profile from a body fluid stain (such as blood, semen or saliva) can be compared with the DNA profile obtained from a reference sample of any person. If the profiles are different, then that person is excluded as a possible source of the DNA. If the profiles are the same, then that person, together with anyone else who has the same DNA profile, can be considered as a potential source of the DNA. The evidential significance of a match can then be evaluated in relation to the probability of obtaining such a match by chance.

There is no doubt as to the probative value of a full profile DNA match taken from a scene sample such as a condom or a duvet. This is generally admissible evidence in the same way as fingerprint evidence.

Low template As recently as December 21 2009, the Court of Appeal decided that low template DNA and partial profile DNA are also admissible in certain circumstances.1 The first case was R v David Reed and Terrence Reed. On August 7 2007 David Reed and Terence Reed were convicted at Teesside Crown Court for the murder of Peter Hoe by multiple stabbing. The evidence against them was both motive and opportunity. Telephone and witness evidence put them in the area at the time of the killing and there was a relevant background to the incident. The defence case was one of alibi.

Low quantities of DNA in relation to each defendant were found on two pieces of plastic from knife handles found near Peter Hoe’s body. The components of the DNA had been revealed using the Low Copy Number (LCN) process. They were not from blood or other identifiable biological material, but simply cellular material that had been transferred to the pieces of plastic. There was no real dispute with a defence assertion that the cellular material could have been transferred from another source but the prosecution expert thought this unlikely. She gave evidence that in her opinion the DNA got there by handling.

The LCN process allows for the analysis of

The second case was R v Neil Garmson. Neil Garmson was convicted at Stafford Crown Court on August 20 2007 of kidnap, rape and sexual assault which related to incidents that had occurred in April 2005 and March 2006.

In 2005, the complainant, and her partner had gone by car to a country park, a man tapped on the window then got into the car and demanded that he be driven to Newport.

He ordered the partner out of the car, forced the woman to drive to a layby where he raped her. Afterwards she was ordered to drop him off in Newport. Garmson was identified by DNA taken in the 2006 incident.

In March 2006 a man forced himself into the back of a car in which a young woman was sitting. In the front passenger seat was another woman. The driver was a man. The perpetrator threatened them with a knife, demanded money and directed the man where to drive. He then sexually assaulted the woman in the back seat. Both women managed to escape. The driver was ordered to drop the man at a particular location.

Garmson was subsequently identified by DNA taken from the lip of the victim. The DNA was merely a few components (known as a partial profile) but the Court of Appeal concluded it was admissible as it was not the only evidence. The prosecution also relied on the similarity of the attacks, fibres from the car which matched a jumper recovered from Garmson’s home, his knowledge of the area and that the drop off was near his mother’s house along with relevant comments he made on arrest .

So, as has been described, the Court of Appeal's judgment allows for low samples of

the barrister

DNA and partial profiles to be admissible in a criminal trial even where the accuracy of the findings depends on expert opinion and/ or there is a possibility of transfer.

Bear in mind that running a part profile (some components but not all) through the database can give a ‘match’ for those components but if only a part profile is recovered from a crime scene it will never be known if the remaining components match the DNA of the suspect.

Mixed sample The analysis of a crime scene sample, even in relation to DNA, is not necessarily an exact science. The admissibility of a complex mix of DNA from more than one person was considered in R v Ishaq at Leicester Crown Court in January 2010. This was a cold case gang rape from 2000 where there was DNA evidence which could prove presence but some of which was also consistent with transfer. In addition, experts eventually agreed on the day of trial that the possibility of a person other than the defendant being responsible could not be excluded as the computer had given an indication of components present in a partial profile, which had initially been discounted by the Forensic Science Service (FSS). At least one of those components was not in the profile taken from Mr. Ishaq in 2008 and could not be attributed to others implicated or convicted suggesting someone else with some corresponding DNA components could have been responsible and not Mr Ishaq. He was acquitted.

IS THERE A MINIMUM LIMIT ON AN AMOUNT OF DNA ADMISSIBLE? The finding of DNA at a crime scene is a useful tool in proving the identity of the offender particularly in serious sexual offences and murder. In all of the above cases the defendants suggested they had an alibi for the events. The DNA evidence was used to put them at the scene and therefore to prove the commission of the crime. However, as few as four components were used in relation to Garmson, the possibility of transfer was accepted in the Reed case and Mr. Ishaq’s case made it plain that the FSS experts will exclude components which the computer indicates are present and which could exonerate a suspect.

Whilst making it clear there should be other evidence, the Court of Appeal put no limit on how few components can be considered as useful.2

WHAT ARE THE SAFEGUARDS? Guidance given in R. v Alan James Doheny [1997] 1 Cr. App. R. 369

The following procedures should be adopted where DNA evidence is involved: • 1. The scientist should adduce the evidence of the DNA comparisons between the crime stain and the defendant's sample together with his calculations of the random occurrence ratio.

• 2. Whenever DNA evidence is to be adduced the Crown should serve on the defence details as to how the calculations have been carried out which are sufficient to enable the defence to scrutinise the basis of the calculations.

• 3. The Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.

• 4. Any issue of expert evidence should be identified and, if possible, resolved before trial. This area should be explored by the court in the pre-trial review.

• 5. In giving evidence the expert will explain to the jury the nature of the matching DNA characteristics between the DNA in the crime stain and the DNA in the defendant's blood sample.

• 6. The expert will, on the basis of empirical statistical data, give the jury the random occurrence ratio— the frequency with which the matching DNA characteristics are likely to be found in the population at large.

• 7. Provided that the expert has the necessary data, it may then be appropriate for him to indicate how many people with the matching characteristics are likely to be found in the United Kingdom or a more limited relevant sub-group, for instance, the Caucasian, sexually active males in the Manchester area.

• 8. It is then for the jury to decide, having regard to all the relevant evidence, whether they are sure that it was the defendant who left the crime stain, or whether it is possible that it was left by someone else with the same matching DNA characteristics.

• 9. The expert should not be asked his opinion on the likelihood that it was the defendant who left the crime stain, nor when giving evidence should he use terminology which may lead the jury to believe that he is expressing such an opinion.

• 10. It is inappropriate for an expert to expound a statistical approach to evaluating the likelihood that the defendant left the crime stain, since unnecessary theory and complexity deflect the jury from their proper task.

• 11. In the summing-up careful directions are required in respect of any issues of expert evidence and guidance should be given to avoid confusion caused by areas of expert evidence where no real issue exists.

• 12. The judge should explain to the jury the relevance of the random occurrence ratio in arriving at their verdict and draw attention to the extraneous evidence which provides the context which gives that ratio its significance, and to that which conflicts with the conclusion that the defendant was

15

responsible for the crime stain.

• 13. In relation to the random occurrence ratio, a direction along the following lines may be appropriate, tailored to the facts of the particular case: “ Members of the jury, if you accept the scientific evidence called by the Crown this indicates that there are probably only four or five white males in the United Kingdom from whom that semen stain could have come. The defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics.”

WHAT IF EXPERTS DISAGREE AS TO THEIR FINDINGS? Much depends on what is in dispute but if the outcome of a trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, arguably it will be unwise, and therefore unsafe, to proceed.3

CONCLUSION Although the Court of Appeal has made it clear that much depends on the other evidence in the case, in relation to mixed, partial or low DNA, one can quickly see that there is a real danger of an incorrect DNA "match".

As to whether a court will allow expert evidence to be given to a jury in relation to any sample recovered and compared to the defendant, this is a matter for judicial discretion. Whether juries will leap to the wrong conclusion based on the admission of low or few DNA components remains to be seen.

Felicity Gerry Barrister Author of The Sexual Offences Handbook 1 R v David Reed and Terrence Reed; R v Neil Garmson [2009] EWCA Crim 2698 2 In contrast to guidance in relation to fingerprints. See R v Buckley 163 JP 561 where guidance was issued that if there are fewer than eight similar ridge characteristics it is highly unlikely that a judge will exercise his discretion to admit such evidence and save in wholly exceptional circumstances, the prosecution should not seek to adduce such evidence.

3 R v Cannings [2004] 2 Cr App R 7. In that case the basis of a case of infant death was inferences to be drawn from disputed expert evidence and on appeal there was a credible alternative medical explanation consistent with the appellant’s account.

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the barrister

Porn, Pipes and the State: Censoring Internet Content

By Professor Ian Walden, Centre for Commercial Law Studies, Queen Mary College, University of London

C

ensorship is not a nice word.

It conjures up images of repressive states, from Iran to China, with a strong dose of George Orwell’s ‘1984’ thrown in. Censorship extends from restraints placed over speakers and publications, those wishing to express their views, to controls over our freedom to consume, redacted paragraphs and blocked airwaves. Censorship is, however, a feature of all states, both repressive and liberal democracies. Certain forms of speech are considered criminally illegal; demanding state intervention and sanction; the ‘porn’ in the title being a short-hand for such content.

Where states differ radically is in respect of the range of content against which such controls are applied. The European Convention on Human Rights, for example, requires that its 47 Member States only interfere with an individual’s freedom of expression on limited legitimate grounds and in accordance with certain procedural safeguards, including considerations of proportionality.

The Internet is widely recognised as having revolutionised our communication habits, providing a multiplicity of avenues through which we can express our views and unprecedented opportunities to dissent from the orthodoxy and spread the word, whether legal or otherwise. However, access to content over the Internet is not unregulated in the UK, contrary to public perception; our access is mediated by the companies that provide us with access and related services, communication service providers; the ‘pipes’ in the title. This article examines the censorship regime currently operating in the UK under the auspices of the Internet Watch Foundation (‘IWF’, www.iwf.org.uk).

The IWF was established in 1996 by leading representatives of the emerging Internet industry, the pipe providers. Its original remit was to address the availability of child sexual abuse imagery, the ‘dark side’ of the Internet, through the operation of a notice and takedown regime (‘NTD regime’). If an image is reported to the IWF, or is discovered by IWF analysts, and the content is located on a UK-based resource, then the hosting entity is notified and required to take that content down. This has proved incredibly successful

in removing such content domestically; the UK declining from 16% to less than 1% in terms of being a source of child sexual abuses images world-wide. Over the intervening years, the IWF’s remit has been extended to encompass obscene and race hate material found in the UK. For criminally illegal content located outside the domestic jurisdiction, removal is inevitably more complex and problematic.

To date, where content is identified as being outside of the UK, the IWF has taken one of two possible courses of action. First, the source state may be a member of the INHOPE network (https://www.inhope.org/). INHOPE is a network of some 35 hotlines in 33 member states taking reports and operating their own domestic NTD regimes. Where the source state is not an INHOPE state, then the IWF pass the report onto the UK police for it to be passed on to the appropriate foreign law enforcement agency via traditional mutual legal assistance procedures. The efficacy of these processes, especially the latter route, can be poor, which has lead to criticism of the IWF for the amount of time it takes to get such foreign content removed.

Mutual legal assistance procedures are notoriously slow and bureaucratic and, inevitably, the recipient state may not action the report for any number of reasons, from a lack of resource and conflicting priorities, to differences in the legal treatment of such content, such as age thresholds (e.g. 16 or 18 years).

access to Internet material. This approach constitutes the second major activity of the IWF, its building of the Child Abuse Images and Content Database (the ‘CAIC’ list) and the deployment of the CAIC list by UK pipe providers. The list comprises URLs relating to web-based locations where illegal content is available and currently contains some 400 entries. The list is dynamic with a high turn-over, which reflects the fact that content providers can easily and rapidly move such content around to avoid detection and investigation.

Deployment of the list by pipe providers is voluntary, in line with the self-regulatory nature of the IWF; although in 2006 the Government called upon all those “offering broadband Internet connectivity to the UK general public” to implement the list by the end of 2007 or face the threat of statutory mandate. Full compliance was not achieved by that date, resulting in calls from some child protection organisations for legislative action.

However, in October 2009, the Government announced that a figure of 98.6% coverage had been achieved and, therefore, legislation would now no longer be required.

As a consequence, there have been calls for the IWF to bypass the official law enforcement route and issue notices directly to the source foreign host provider, some of which will be foreign divisions of existing IWF members, which could lead to the more effective and efficient removal of this illegal content. Such notices would not be enforceable however and, indeed, they could undermine an investigation by a foreign law enforcement agency, disrupt ongoing surveillance activity or result in the loss of forensic data as evidence in particular cases.

Deployment is only one aspect of implementing content filtering; another is the extent to which such filtering is made transparent to users. Users should be given prior notification by their service providers, detailed in terms of service or related policies.

Inevitably, however, the wording of such terms will often be couched in vague language and generally not read by customers. When a customer attempts to reach such blocked content, what the customer receives by way of notification will vary according to the service provider. For some, the user may receive what is commonly known as a ‘404’ splash page, suggesting that a technical error has occurred; while others return a page indicating that the content the user is attempting to access is prohibited. The latter is clearly more transparent than the former, but there is currently no standard approach across the industry.

An alternative means of dealing with foreign-sourced criminally illegal content is to block access to such material from within the domestic jurisdiction, filtering our

Notification of prohibition also returns us to the broader question of the purpose of the content filtering: crime prevention or a tool of criminal investigation? As currently operated,

the barrister

the deployment of the IWF list across UK service providers is designed to prevent and disrupt access to child sexual abuse images.

It is recognised that the filtering system can be circumvented by a determined paedophile, through technical work-arounds. However, the target population are those that innocently stumble across this material in the course of their Internet-based activities, particularly children; as well as the curious or casual user, who may have deliberately sought out such material, but has not previously been involved with such content and is likely to be deterred if obstacles are placed in his way.

Attempting to access material located at the blocked sites does generate data, communication attributes that will be recorded by the service provider. As such, questions have been raised as to whether such forensic data could or, more importantly, should be used by law enforcement as a tool of criminal investigation. Statistics released by BT in April 2009, however, suggest that there were between 35-40,000 attempts to access sites on the CAIC list each day. Although these data are likely to be substantially over-stated, for a number of technical reasons, the industrial volumes

involved would overwhelm any attempt by the police to investigate individual users.

Filtering content would not seem to be fundamentally different in nature than the notice and take-down regime, but has generated much greater controversy and criticism, as a threatening form of censorship.

However, the concern with filtering would seem to be located more in privacy than freedom of expression concerns. Most people accept that certain content, and conduct in respect of that content (e.g. supply), should be criminally illegal. What particularly bothers us about filtering systems is that their modus operandi is the monitoring of our communications activities, behaviour that is seem as a fundamentally private in nature.

One persistent criticism of the IWF’s work is the fact that it is self-regulatory, comprising some 100 service providers offering a range of different Internet-related services. As such, the actions the IWF facilitates, specifically the removal of domestic content and the blocking of access to foreign content, operates without democratic input or oversight from government or Parliament, as guarantors of our individual rights and freedoms. The

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state is not completely absent, however, since as law-maker it determines whether particular content should be criminalised or not. However, it is the individual service providers, operating collectively through the IWF, that implement mechanisms for tackling such content in an Internet environment.

The UK has a strong tradition of content governance through self-regulation, from the Advertising Standards Authority to the Press Complaints Commission, which contrasts sharply with other jurisdictions, such as the US and civil law systems in continental Europe. While it is necessary to control the self-interest in self-regulation, through the imposition of transparency and accountability obligations, independence from the state in the censorship of Internet content may be the most appropriate mechanism for tackling illegal content in a complex technical environment that is the Internet, involving millions of users imparting and receiving information seamlessly across national borders.

Professor Ian Walden Centre for Commercial Law Studies, Queen Mary, University of London

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The Jackson review and encouraging mediation development

By Tony Allen, Solicitor, Mediator and a Director of CEDR and Professor Karl Mackie, Barrister, Mediator and Chief Executive of CEDR

S

admirable. This article seeks to argue that

the law, with courts the last resort (to quote

further deployment of mediation within

Lord Woolf) if no agreement is reached.

relatively little prominence

current frameworks can deliver his

Mediation needs clear law, and courts equally

to ADR.

objectives of reducing the cost, time and pain

need effective and good quality settlement

of civil disputes.

procedures.

ir

Rupert

preliminary

Jackson’s report

gave

ADR does not

feature in its index, and, in

antithesis of the administration of justice

Further education?

by the courts”, and as being “a voluntary

His prescription for ADR is not to impose

not a coercive process”. ADR reappears in

further rules in relation to its deployment

chapters on the TCC and Chancery work and

around the civil justice system, but to educate

on case management.

both the public and the legal profession and judiciary further about its merits.

of resolving many forms of litigation”,

willingness to be educated further is self-

specifying business, family, commercial and

evident.

personal disputes, but not personal injury.

for 20 years now and has yet to establish

But mediation is (apparently) not a “universal

mediation as a widespread norm. Professor

panacea” –often asserted by commentators –

Genn’s view, as quoted above by Sir Rupert,

and there are warnings of “fruitless…wastage

misrepresents what mediation’s supporters

of costs.” He seems perhaps to have been

say about its proper place in the UK civil

influenced by Professor Hazel Genn’s 2008

justice system. We assert and accept, with

Hamlyn lectures, where she criticised “a

Sir Rupert, that its proper place is achievable

culture of driving all litigants away from the

by implementation of existing obligations

courts and into mediation, regardless of their

on court users and judges, so long as they

wishes and regardless of the circumstances

are duly deployed, something which does not

of individual cases”, views since widely

happen yet.

His own

But education has been going on

Is mediation “driving parties away from the courts regardless”?

Not at present, and nor has any English supporter of ADR submitted so to Sir Rupert’s review, as his quotations make clear, even though mandatory mediation is a fact of life in the great majority of the world’s common law jurisdictions without any suggestion that this infringes civil rights. England does not want universal mandatory mediation and we do not advocate it. But what it arguably

needs, as Sir Rupert makes clear, is far more frequent deployment of mediation. We do not think that mere education will achieve this.

Its use has historically grown when lawyers (and perhaps their clients) have feared that they might be sanctioned for not using it,

challenged by Lord Woolf, Sir Henry Brooke,

such as in 1999, when the CPR came into

So CEDR and the Civil Mediation Council

Is ADR “the antithesis administration of justice courts?”

submitted views for Phase 2, and his final

The informed answer to that question is

report shows a marked development in Sir

a resounding “No”.

Rupert’s views about ADR.

Roughly 90% of civil claims settle.

Not only does

is

ADR within the CPR’s overriding objective.

mediation as being “an excellent method

among others.

inter-relationship

in the court’s duty to encourage and facilitate

civil courts, is said to be “by definition, the

Sir Rupert praises

Their

wholly and properly symbiotic, as enshrined

relation to the role of the

of by

the the

force, and in 2002, when Dunnett v Railtrack was decided: when, in other words, it became part of the lawyer’s self-interest to advise

Nor is settlement.

If 90%

its use.

Many clients have no idea what

mediation is if their lawyer does not explain it to them. If lawyers are under no pressure

ADR get its own chapter (36), he makes it

of issued cases were tried, as in India,

gratifyingly clear that those submissions

Pakistan and Nigeria (jurisdictions in which

changed his mind, especially over personal

CEDR

injury and clinical negligence mediation.

would reign. Our system needs settlement,

process?

Indeed, when challenging the “widespread

based on pronouncement of legal principles

Yes, once it starts.

belief” that mediation is unsuitable for

against which parties can assess the value

exploration of possible changes of position

personal injury cases, his footnote admits

of settlement terms and the risks they

and tolerable, risk-discounted, outcomes

that he shared that belief until Phase 2 of his

face if they litigate. Mediation – indeed all

to a dispute “without prejudice” to each

review. His openness to change of mind is

settlement – takes place in the shadow of

party’s asserted case. Once at the mediation,

has

trained

mediators)

gridlock

to do so, mediation may well not happen.

Is mediation a voluntary, not a coercive Mediation allows safe

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19

continued participation is and must

is clearly required by most protocols but is

trying about 10% of issued cases), usually to

be voluntary, with any party free to leave if

simply not enforced by Masters and District

the deep disappointment of at least one of

mediation ceases to look productive, and free

Judges. If both sides fail to mediate, it may

the parties. Mediation produces consensual

to strike poses or make offers which might

not be because they want to go to court as a

outcomes in about 85% of cases, often

be regarded as unreasonable without fear of

matter of principle but simply have agreed to

beyond what courts can order, and on terms

disclosure to a trial judge, albeit within limits

reject early settlement attempts. The lawyers

which are reflective of the risks attendant

which the courts can and do police when

may not even have consulted their clients.

on trial. So settlement is the norm, and in

invited. But there is no evidence that direct

Mediations often take place far too late in

our view those settlements could frequently

or indirect coercion to attend the process in

the life of a case, when past and future costs

be achieved much sooner and at less cost.

the first place renders settlement less likely.

constitute a huge obstruction to settlement

While the Jackson Review understandably

Parties are coerced into litigation, after all,

and when earlier lower cost resolution was

concentrated on improvements in court

and most disputes still settle. There is very

often abundantly possible. We often mediate

processes, in reality the improvement of

little track record of parties “huffing off” from

cases shortly before trial with thousands of

good quality settlement methods is also a

a mediation before issues have been explored.

pounds expended on utterly disproportionate

proper and essential responsibility of civil

Experienced mediators know how to initiate

costs, where neither lawyer nor judge has

justice, and one which should legitimately

and maintain fruitful debate, and mediation’s

apparently considered mediation.

This is

be required of participants. This report is

high settlement testifies to its success.

why we despair of the litigation process as

a huge achievement in identifying how to

often conducted currently and argue both

eradicate some of the incontinent expense of

that judges should enforce pre-action ADR

litigation. We hope Sir Rupert will continue to

obligations and also should make ADR

explore how further positive encouragement

Orders in the right cases early on. This is

of mediation can assist with both cost-saving

what the parties need and deserve, whatever

and user satisfaction in all types of civil

their lawyers may think. Indeed, Sir Rupert’s

dispute.

Are costs sanctions enough or are ADR Orders needed?

Mediation should be deployed consensually if possible, but ADR Orders are needed where parties fail to use it, with sanctions as a backstop.

Unless a judge might penalise

failure to mediate whenever the CPR and the Protocols require it to be considered, or the court recommends it, or another party proposes it, the effect of such requirements will simply dissipate. Sanctions are a useful incentive to others to mediate in later cases, as happened after Dunnett v Railtrack, but were

too late to help to Mrs Dunnett

recommendation for pre-issue applications to enforce protocol obligations indicates his agreement.

We enthusiastically await

the first such application to enforce an ADR obligation before issue, and hope that procedural judges will insist on performance of such obligations, only asking that they be “compelled” to do so by downward pressure from senior judiciary.

in securing her paddock and Railtrack in restoring neighbourly relations. The Court of Appeal in Halsey firmly endorsed use of ADR “Orders” in Commercial Court form, which will ensure that mediation is undertaken in the right case at the right time, for the benefit of litigants, which is all we seek.

Is mediation a “universal panacea”?

No, but nor is trial, nor any other dispute resolution process, if “panacea” connotes resolution to the universal contentment of all involved. To criticise any process for not being a universal panacea is meaningless. Sir Rupert rightly finds that mediation is seriously under-used, especially in personal injury

Do CEDR and Sir Rupert Jackson

and clinical negligence, and is of significant

really disagree?

value when deployed, with high settlement Sir Rupert challenged

rates. We add that it usefully narrows issues

CEDR’s submissions over sanctioning failure

and checks party determination to fight to

to mediate, particularly when both parties

trial where unsettled. Either way, it reduces

decline, and over “compelling” judges to

the wastefulness of court-door settlements.

enforce mediation requirements.

CEDR’s

Judges certainly produce a definite outcome

concerns related to pre-issue ADR, which

in 100% of the cases they hear (though only

Not in our view.

NEWS ROUND UP

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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Judge crime online NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Justice will be put straight into the hands NEWS of the public as they decide the fate of offenders, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS online.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The newNEWS interactive website, You Be the Judge, willNEWS give people the opportunity to pass their own sentence on aNEWS real lifeNEWS case. They will work NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS through NEWS the mitigating and aggravating factors of a NEWS crime before deciding on NEWS the mostNEWS appropriate punishment.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The purpose of the site is to help the public understand that sentencing is not just an arbitrary decision but a difficult and complex process NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS based on many factors – which is exactly what a group of students discovered when they joined Justice Minister Claire Ward at a mock NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS sentencing event at Hendon Magistrates Court .

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The law students were invited to play the part of judge and jury and decide offender’s fate in a You Be the Judge event organised by the NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSanNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS local court.

They NEWS discovered that the justiceNEWS systemNEWS is fairer NEWS and can NEWS be tougher than many people believe afterNEWS they gave the defendant more NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS aNEWS lenient sentence than theNEWS courts did in reality.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWShow NEWS NEWS NEWS The mock trial was one ofNEWS many that have been taking placeNEWS across the country in a move to inform theNEWS public exactly sentencing NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS decisionsNEWS are made.

NEWS NEWS Claire NEWS NEWS Justice Minister Ward said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 'Safe andNEWS decent NEWS places toNEWS live areNEWS a priority for all of us, and we areNEWS constantly working to remove the NEWS impact and fear of crime.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 'We believe that serious dangerous criminals beNEWS sent to prison, remain there for as long as is necessary to protect the public.

NEWS NEWS NEWSand NEWS NEWS NEWSshould NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS But it is also important have measures place that properly punish more NEWS minor crimes in NEWS the community, well asNEWS provideNEWS rehabilitation NEWS NEWS NEWStoNEWS NEWS inNEWS NEWS NEWS NEWS NEWS NEWSas NEWS NEWS to stop reoffending in its tracks.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 'No two cases areNEWS the same and this can make the NEWS way criminals areNEWS punished a difficult process to understand, although it is a NEWS crucial issue NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS in which NEWS we all have an interest.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 'That’s why events like this one in Hendon and the new website are so important – to help people see how punishments are decided and to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS show the public how much thought goes into giving criminals a sentence they deserve.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 'Judges and magistrates independent haveNEWS the discretion make decisions what sentence to give criminals based on the NEWS NEWS NEWS NEWS are NEWS NEWS and NEWS NEWSto NEWS NEWS on NEWS NEWS NEWS NEWS NEWS NEWS circumstances severity of eachNEWS crime.'NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSLAUNCHES NEWS NEWS NEWS NEWS NEWS BAR NEWS COUNCIL JUDICIAL BSB SEEKS VIEWS ONNEWS AUTHORISATION TO NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS REVIEW OF GOVERNMENT’S PRACTISE NEWS NEWS ARRANGEMENTS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS paper NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Bar NEWS Standards BoardNEWS (BSB) has issuedNEWS a consultation CONSULTATIONS ON NEWS CRIMINAL LEGAL NEWS NEWS NEWS to NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS seeking NEWS views onNEWS proposals for revisions barristers’ practising NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS AID NEWS NEWS NEWS NEWS NEWS NEWS NEWS arrangements. The Legal Services Act 2007 requires individuals NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSwith NEWS NEWS NEWS NEWS NEWS NEWS In accordance the Pre-Action Protocol for Judicial Review wishing NEWS to provide reserved legalNEWS activities (such as exercising a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Claims, solicitors acting for the Bar Council has written to right of audience and theNEWS conductNEWS of litigation) to be authorised to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Legal Aid Minister, BachNEWS and to NEWS the Chairman of NEWS the NEWS NEWS NEWSregulator.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSLord NEWS NEWS do so by NEWS the relevant approved Legal Services Sir Bill Callaghan in NEWS order toNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commission, NEWS NEWS NEWS NEWS The BSB, the regulatory body for barristers, is charged with setting NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS advanceNEWS proceedings forNEWS judicial NEWS review of the Government’s the criteria by which barristers will be authorised to carry out NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSonNEWS NEWS NEWS NEWS NEWS NEWS consultations criminal legal aid. reserved legal activities .This consultation exercise provides an NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ideal opportunity to review those criteria to ensure that they remain The consultations concern the Advocates’ Graduated Fee Scheme NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS relevant and applicable and meet the legislative requirements of the and VeryNEWS High Cost CasesNEWS (VHCCs) scheme which have been NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Legal Services Act. initiatedNEWS by the Ministry JusticeNEWS (MoJ) and the Legal Services NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ofNEWS NEWS NEWS NEWS Commission (LSC) respectively.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS This consultation forms part of theNEWS BSB’s commitment to a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSreview NEWS NEWS NEWS NEWS NEWS NEWS NEWS comprehensive of the Bar’sNEWS Code ofNEWS Conduct.NEWS NEWS NEWS NEWS The BarNEWS Council’s action NEWS follows the rejection by the MoJ and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS should NEWS NEWS the LSCNEWS of the Bar’s request that NEWS the Government NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSfor NEWS NEWS NEWS NEWS NEWS combineNEWS the deadlines responses to these consultations and The authorisation to practise consultation on threeNEWS NEWS NEWS NEWS NEWS NEWS NEWS invites NEWScomments NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS to join them to the timetable for the response to the proposed broad topics: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS consultation on aNEWS single graduated fee forNEWS Crown Court cases.

A NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSletter NEWS NEWS NEWS NEWS NEWS full pre-action will NEWS be sent in due course.

NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The introduction an authorisation to practise regime; NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The regulatory arrangements for barristers who do not have full Bar Chairman Green QC said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNick NEWS NEWS NEWS NEWS NEWS NEWS practising entitlements; and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The relationship the above to the Barristers’ Register.

NEWS NEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS ‘The Bar Council asked the MoJ and the LSC to adopt a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS co-ordinated and fair approach to their decision-making on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on the consultation Baroness Ruth Deech, Chair of the the very important matters which are the subject of these NEWS NEWSBoard, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Bar Standards said: consultations. The Government has rejected our request to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS co-ordinate the consultation timetables and refused to supply NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS us with the information for which we asked to enable the Bar to “The decisions in relation authorisation to NEWS practise NEWS will NEWS NEWSmade NEWS NEWStoNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS respond to the two current consultations. These are inextricably affect allNEWS members of the NEWS Bar. TheNEWS Bar, andNEWS others NEWS with an interest NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS linked to an, as yet, unpublished third consultation. The principal in the Bar, are encouraged to comment both on theNEWS broad principles NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS basis of our claim will be that the consultation exercise is unfair of the proposal the practicalities of how they might operate.

It isNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS and, in our view, unlawful.’ important that any potential flaws NEWS in the proposals are identified so NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS that any NEWS serious objections can beNEWS taken into account.”

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

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21

NEWS ROUND UP

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS JUNIOR CRIMINAL BAR UNDER FROM BOTCHED LEGAL AID REFORMS WARNS NEWS NEWS NEWS NEWS NEWS NEWSTHREAT NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS COMMONS COMMITTEE NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The influential House of Commons Public Accounts Committee has published a damning report on the Legal Services Commission’s NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS handlingNEWS of legalNEWS aid reform.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS use NEWS NEWStoNEWS NEWS NEWS The report on criminal legal aid procurement also warns that the increased of solicitors conductNEWS work inNEWS the Crown CourtNEWS is threatening NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSprovided NEWSinNEWS NEWS NEWS NEWS NEWS the long-term future of the junior NEWS criminal NEWS Bar and NEWS may be affecting the quality of advocacy those courts.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS The procurement of legal NEWS aid in England WalesNEWS by the Legal Services Commission (HC 322) echoesNEWS many ofNEWS the deeply held NEWS concernsNEWS of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the Bar Council.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS It criticises the LSC for ‘poor financial management and internal controls and deficient management information’. It says the Commission does NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS not know whether its reforms are working or what they are doing to the sustainability of providers.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Committee says NEWS the implementation of theNEWS 2006 report on legal aid NEWS

by Lord Carter Coles has been delayed reflects a lackNEWS of NEWS NEWSalso NEWS NEWS NEWS NEWS NEWS NEWSofNEWS NEWS NEWSand NEWS NEWS clear strategic the LSC. The Committee complains of ‘confusion uncertainty’ the respective of the Commission the NEWS NEWSdirection NEWSatNEWS NEWS NEWS NEWS NEWS NEWS and NEWS NEWS inNEWS NEWS roles NEWS NEWS NEWSand NEWS Ministry of Justice, leading to duplication of effort and lack of clarity over who does what.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Commenting on the report, Bar Chairman Green QC said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Nicholas NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSstate NEWS NEWS NEWS NEWS NEWS ‘What the PAC has found is what we have long feared. The reform of NEWS legal aidNEWS is in a chaotic and is being conducted in a way which NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS threatens the junior Bar, who are the lifeblood of the profession.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSeven NEWS NEWS NEWS ‘It is galling, to say the least, for the Bar toNEWS witness NEWS such very damaging financial mismanagement, resulting in theNEWS LSC’s 2008NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 09 accounts being qualified by the Comptroller and Auditor General, at a time when brutal cuts in legal aid will threaten the quality of NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS representation the Courts, as the Committee warns.’

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS SAHCA supports Bar Council action over Criminal Legal AidNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS and NEWS NEWS NEWS NEWS NEWS NEWStoNEWS NEWS NEWSconsultation NEWS NEWS SAHCA, the voiceNEWS of solicitor advocacy in England Wales, has previously expressed opposition the Ministry of Justice on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS advocacy fees. In a statement issued last month Jo Cooper, SAHCA Chair, welcomed action proposed by the Bar Council.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS " We support thisNEWS action. MoJ know we have grave reservations about the consultation process.

There is no impression strategic thinking in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of NEWS NEWS NEWS the Government's proposals.

In tough times there are hard decisions to make.

But this is not the way."NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS He added, "Government is entrusted with the stewardship of a complex system for providing legal services to the public. That system has never NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS been more fragile, or more at risk of irreparable damage."

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NOTES FOR EDITORS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSAssociation NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS SAHCA isNEWS the Solicitors of Higher CourtNEWS Advocates.

Founded in 1994 it represents the interests of specialist advocates within NEWS NEWS NEWS NEWSwith NEWS NEWS NEWS NEWS as NEWS NEWS NEWSinNEWS NEWS NEWS the solicitors profession members on NEWS both sides of the NEWS criminalNEWS justice process, well as many others civil law.NEWS It is a fast growing NEWS NEWS NEWS NEWS has NEWS NEWS NEWSinNEWS NEWS NEWS NEWS NEWS national NEWS organisation whose membership doubled in theNEWS last fiveNEWS years toNEWS aroundNEWS 1250 members England and Wales.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS CONTACT: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Jo Cooper, Chair NEWS of SAHCA NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 07956 551898 NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Jo Cooper is a criminal was aNEWS foundingNEWS member of SAHCA and is Head of Chambers at Perren Buildings NEWS NEWS NEWSdefence NEWSadvocate.

NEWS He NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSChambers, NEWS NEWS 15 Old Bailey, London.

He was elected Chair on 13 November 2009 NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Ministry of Justice hasNEWS announced thatNEWS legalNEWS aid funding willNEWS be provided to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSof NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS survivors the NEWS 7/7 bombings.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS The Justice Secretary, Jack Straw, has made an in principle decision to provide funding for a legal team to represent the survivors.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS toNEWS NEWS NEWS NEWS NEWS NEWSHallett, NEWStheNEWS NEWS NEWS NEWS NEWS NEWS Funding NEWS will be provided allow survivors to makeNEWS representations to Lady Justice assistant deputy coroner, that they should NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS be ‘properly interested persons’ at the inquests and therefore able to question witnesses and to receive copies of documents. Funding forNEWS NEWS NEWSwill NEWS NEWS NEWS NEWS NEWS NEWSrecognises NEWS NEWS NEWSpersons’.

NEWS NEWS NEWS NEWS NEWS representation also beNEWS provided for those survivors whom the coroner as ‘interested NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Media enquiries: Contact NEWS Ministry NEWS of Justice press office on NEWS 020 3334NEWS 3536. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Applications must be made via a solicitor to the Legal Services Commission. NEWS For enquiries about the application processNEWS please NEWS contact the NEWS NEWSCommission NEWS NEWS NEWS Legal Services press NEWS office onNEWS 020 7783 7000. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS

22

the barrister

A question of CCTV evidence Since its inception CCTV has always featured very heavily in the courtroom due to the weight it carries as vital evidence. Without this surveillance technology the reality is that some cases would not be solved or indeed the wrong people may be convicted. With the courts being so dependent on CCTV it is therefore vital, moving forward, that best practice is followed when it comes to the handling and presentation of these images across the criminal justice system.

By Pauline Norstrom, Chairman of the British Security Industry Association (BSIA)'s CCTV Section.

A Digital Dimension

C

different, a difference which, if dealt with

purchasing organisations to ensure systems

correctly, can deliver positive benefits. By

are used more effectively to gather vital

been

their very nature digital images do not

evidence.

relying on CCTV as evidence

degrade so it is perfectly possible to make

for a number of years. Back

copies without eroding detail or quality. For

As a starting point, BS8495 underlines

in the days of the standard

the criminal justice system and the police,

the necessity of looking at the operational

VCR tape, CCTV featured

this obviously requires a change of approach.

requirements of the CCTV solution before

ourtrooms

have

heavily and in recent years

With a standard VCR tape, detectives had the

evaluating the clarity of the recorded images

we have witnessed a change in technology

reassurance of being able to physically touch

as this will be largely dependent on what

with the adoption of

the original as this was the medium directly

the CCTV has been deployed for. Ensuring

digital video recording systems. Compared

recorded to. Not so with digital, as images

that digital CCTV footage carries sufficient

with analogue recorders, digital alternatives

have to be taken off the hard drive of a unit,

weight in court is of paramount importance

provide ease of use and the ability to search

where the original

and is dependent on a number of factors

for specific recorded data quickly. This move

evidence is stored, and copied onto removable

including image quality and authenticity,

has opened up a vast amount of opportunities

media.

storage, the method used to export images, playback, operator/owner awareness and a

for courtrooms in terms of the capabilities of digital solutions compared to the older

Setting the Standard

analogue systems.

In

response

to

the

comprehensive audit trail. pressing

demand

for guidance regarding this new digital

Image Integrity

CCTV technology a code of practice was

When it comes to the review and extraction

superseded by digital recording, an urgent

developed by the BSIA in consultation with

of digital images, there is a need to ensure

need has arisen for definitive guidance

bodies such as the Association of British

that the integrity of the stored reference

relating to digital video images being used

Insurers, the Law Society, the Home Office

image remains even when, for example, an

as evidence in the criminal justice system.

Scientific Development Branch as well as

enhanced version of the image is created by

A number of key questions have been raised

police forensic experts. This document was

zooming in on a specific area. In terms of

about the weight of digital video evidence

positively received and eventually developed

the retrieval of images from a DVR, while a

and the methods used to review and extract

into a new British Standard, BS8495, for the

multitude of formats can be used, although

such evidence. End-users, the judicial system

purpose of exported image data to be used

duplicated images must be exact copies of the

and the police have become accustomed to

as evidence.

reference images and, crucially, this must be

As

analogue

VCR

tape

is

increasingly

provable in court.

dealing with tape based evidence over a number of decades and naturally in the early

Crucially,

days - and still to a certain extent today -

recommendations

specification,

With certain methods, such as copying onto

there has been a tendency to want to handle

selection, installation and operation of digital

removable digital media and a removable

digital material in exactly the same manner

CCTV recording systems that generate CCTV

hard disk, it is advisable to also look at

as the older analogue.

images that may be used in a court of law. It is

implementing additional measures to ensure

aimed at assisting specifiers, installers, users,

image integrity so that images are transported

insurance companies, police, authorities and

in a secure format. The need for a verifiable,

The reality is that digital video evidence is

BS8495

delivers for

the

invaluable

23

the barrister

documented audit trail from the recording of

the uptake of digital images for evidential

replica, there was no way of knowing this at

the reference images to its presentation in

purposes in high profile cases is becoming

the time. Images of the youths were presented

court and facilities for media playback are of

widespread. The advantages of effective

to the police and helped to bring about the

paramount importance. A serious concern is

digital video evidence have been thoroughly

arrest of the suspects with a 15-year old

that, unless these audit trails and operator

demonstrated through events such as the

given a final warning and a 17-year old taken

procedures stand up to scrutiny in court,

Tonbridge depot robbery convictions and

to court where the evidence resulted in a

the Crown Prosecution Service may not be

particularly during the London bombings

community order.

able to use the images in the first place or

investigation.

defence lawyers will later be able to take

exercise by London's Metropolitan Police and

Since the move from analogue to digital, we

advantage of holes in the evidence presented.

surrounding forces was significantly aided

have seen more powerful and flexible systems

This could potentially jeopardise the case and

by the presence of the surveillance systems

that have the ability to record more pictures

undermine a significant raison d’être of the

covering the streets. Recordings from 28,000

per second and with the added flexibility

system, not to mention wasting the police

CCTV cameras cut-down to seven hours

of being used in mobile systems and on

time spent in putting the case together to

of relevant footage aided the investigation

public transport. CCTV is also increasingly

start with.

and the pictures that were subsequently

being applied in a networked environment

produced, such as those taken at Luton rail

with new ways of automatically analysing

Focusing on the quality of digital CCTV

station of the 7/7 bombers on their way

images, such as automatic number plate

images that are recorded, there are a number

to suicide missions, which showed clear,

recognition and patterns of behaviour, which

of factors which can have an impact on the

identifiable images of the perpetrators.

can ultimately benefit the courtroom.

in the field of view, lighting, maintenance,

Digital video evidence is also playing a key

Weight of Evidence

image transmission and specification of the

role in dealing with a wide range of law

Ultimately,

camera/lens.

enforcement issues including trouble caused

BS8495 standard should offer an important

by football fans in towns and city centres.

independent benchmark to ensure that there

Image Quality

Cumbria Police applied mobile CCTV to

is greater confidence in the integrity of digital

Certainly the practical experience among

deal with a group of Newcastle and Carlisle

media throughout the criminal justice system

police officers gathering video evidence from

supporters who had arranged to meet up to

and that it can be given sufficient weight as

recording systems for use in the judicial

fight outside a pub. Thanks to digital video

evidence in court.

system has moved on since the days when

footage, officers from Cumbria Police were

pictures gathered from CCTV cameras were

able to provide evidence to Northumbria

frequently discovered to be in a poor state.

Police so they could confirm the identities of

Historically, a combination of insufficient

the Newcastle supporters. The CCTV evidence

cleaning

of

led to a number of successful convictions,

lax

which included football banning orders, fines

This

massive

intelligence

image quality, such as the size of the subject

and

maintenance,

overuse

VCR tapes, inadequate lighting and

operational procedures often led to problems

and community service.

in identifying potential crime culprits. This issue was highlighted in the 1990s when the

In another example, Premier Waste (UK)

original CCTV images showing toddler Jamie

Ltd, has adopted a BSIA member's remotely

Bulger and his abductors at a Merseyside

monitored, detector activated CCTV service to

shopping centre had to be

subsequently

secure its extensive waste management and

enhanced by a police technical support

recycling site in Hyde, Greater Manchester.

unit before they could be effectively used

The facility hit the headlines when CCTV

as part of the investigation. Improvements

images generated by Premier Waste's system

introduced since then, partly as a result

were shown in the media of a teenager

of publicity surrounding the Bulger murder

aiming what appeared to be an AK47 rifle

case, have brought the question of quality

from the adjacent Newton Railway Station.

recordings into the spotlight,

as installers

A crane driver spotted two youths acting

and system users, the police and judiciary

suspiciously, one of whom seemed to be

have realised their importance.

pointing a rifle in his direction, and radioed the CCTV controller to take a closer look as

Practical Benefits

well as contacting both Greater Manchester

The importance of an independent benchmark

Police (GMP) and the monitoring centre.

like BS8495 has never been greater since

Although it turned out that the AK47 was a

the

widespread

use

of

the

The British Security Industry Association (BSIA) is the professional trade association of the UK security industry. Its members produce over 70 per cent of the country's security products and services to strict quality standards. For further information, visit www.bsia.co.uk. The BSIA operates a local rate help line, open during normal business hours on 0845 389 3889.

24

the barrister

Lack of the Irish no more: time to look west?

The Republic of Ireland has grown in significance in recent years. Blip of the current recession aside, its economy has flourished through improved commerce, and its court reporting and publishing have risen accordingly. As legal globalization continues apace, barristers in England and Wales are increasingly looking beyond our borders for persuasive precedent. And the higher up the court structure they go, the more likely judges are to look favourably on the burgeoning portfolio of cases from Ireland, the only non-UK common law jurisdiction inside the European Union.

By Alistair King of Justis Publishing “Ireland was the first ‘adventure’ of the common law.”

I

nspired by W.J. Johnson’s article in a 1920 edition of the Law Quarterly Review, the words are as resonant 90 years on as they were in that shaky period leading to official independence.

At least that’s the impression I’m left with after meeting Dr Eamonn G. Hall, eminent solicitor, notary public and constitutional law examiner of the Law Society of Ireland.

Quoting a man who went on to become an early judge of the High Court of the Irish Free State, he expanded on Johnson’s theme, convincing me to investigate the implications of this observation.

In Dublin for the launch on to the Justis platform of Irish publisher First Law’s current awareness service, I’d originally planned to chat to Hall – guest speaker at the event – about the benefits to Irish practitioners of this technical development, which unites First Law’s electronic material with reams of English law, along with the Irish Reports and Digests, which have been on Justis for 10 years.

It should surprise few that barristers across the Irish Sea have cited English cases alongside their own for generations: their legal system is based on England’s, which has a much larger population and therefore more cases; English cases are easy to find and persuasive in Irish courts; and for most of the last century, law reporting in Ireland was far less developed than in England.

But in the past 10 to 15 years, thanks in part to the foresight of First Law MD, Bart Daly, there’s been a revolution in access to Irish law reports and related material, particularly online. So through interviews with lawyers

on both sides of the watery divide and prompted by my chat with Hall, this article both demonstrates the small but growing trend of English barristers extending their research nets west, and shows how others might benefit from following suit.

So who at the English Bar has cited Irish case law? How and why have they done so? How is it received in court? To which practice areas is it particularly pertinent?

And does it carry benefits over and above simply increasing the pool of common law cases?

Irish cases can be cited very persuasively in England or might it actually suggest the opposite?

Certainly Hall provides a long list of areas for which Irish cases are ripe for the picking in England – “contract, tort, administrative law, European Law, human rights, employment and a host of other categories would be a fruitful source of persuasive precedent in British courts,” he says, and “extradition law, commercial law and criminal law in general would be useful.”

But does this theory convert into practice?

Jurisprudentially, Ireland and England have much more in common with each other than either has with close neighbour Scotland.

Referring to a number of supporting cases in Halsbury, Hall explains that, though not technically binding, Irish cases have for many years been “entitled to the highest respect in English courts,” despite independence.

This stance doesn’t appear to have been diluted over time: Hall draws my attention to In Re Ellis and Gilligan, [2001] 1 AC 84 and [2000] 1 All ER 113, in which Lord Steyn noted that "The United Kingdom and the Republic of Ireland are neighbours with close ties. There are no immigration controls between Ireland and the United Kingdom.

Ireland is also excluded from the definition of a foreign state in section 3 of the Extradition Act 1989." Lord Steyn goes on to allude to the "special position of Ireland in each part of the law of the United Kingdom”.

Yet there’s a relative dearth of journal articles on the subject of Irish Law in England – Hall names two, both of which he says are “considered dated”: one from International and Comparative law Quarterly in 1960; the other from the same publication a year later.

Is this because it’s common knowledge that

Perhaps it’s starting to.

With over 30 years at the English Bar under his belt, an experienced practitioner on the London scene spoke to me off the record about his experiences of using Irish law.

A regular user of the full-text online Justis legal library, which he praises for its “most useful” printable PDFs, he appreciates the directness of the Irish, whose laws, he says, give “a corner of the picture not painted elsewhere.” Though there’s a strong “similarity in law,” he highlights their “have a go at it” attitude and willingness to “try something unusual.” In other words, we can look back and learn from their sometimes pioneering approach both to business and related transactions, and to the application of law on the same.

“There was a lovely Irish case on donatio mortis causa,” he tells me. Meaning “gift on the occasion of death,” this legal term refers to a complex set of conditions by which such transfers of assets can be considered legitimate.

Entering the phrase into a quick search of Justis – which potentially includes case law

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and legislation from all parts of the UK, the Republic of Ireland and a growing list of other common law jurisdictions – returns a substantial number of Irish cases on the first page.

(Similarly enlightening results can be investigated on Justis’s sister service, the provider-neutral JustCite citator, which crossreferences cases, legislation and articles from the UK, Ireland, Canada, Australia and beyond, and provides hyperlinks directly into third-party full-text platforms.)

The precedent this barrister found and used, which could easily have been generated from such searches, involved “someone getting on a train and giving some documents to his nephew.” Soon after getting off the train, he explains, the man was found to have committed suicide. The question: “Did he know?”

The answer, though too complicated to go into here, proved useful for his case, and he says it was persuasive in court.

Is this often the case with Irish case law, even with post-independence material?

That “wouldn’t make a difference,” according to my source, who says that judges over here would be – and are – “intrigued by other judges’ opinions” if they offer a useful new angle.

That you have found a new angle can be demonstrated if you confine your search to one platform, a set-up that appeals to our man, who wasn’t specifically looking for an Irish case in this instance. This particular Irish case “just happened to have considered it,” he explains.

It’s a strategy familiar to Philip Coppel QC, a member of 4-5 Gray’s Inn Square chambers in London.

Practising “public law in the widest possible sense,” the respected silk believes Irish law “can be helpful.” Caution must be exercised when citing it if there’s English precedent, but he uses it – and other common law country authorities – “to provide a normative dimension” when the jurisprudence is consistent with English law; an Australian who once practised law in his homeland, his expertise in using other countries’ cases is no doubt long- and well-established.

“I give it a try to see if it yields anything useful,” he adds, “and the default on Justis

[which he often uses] is set-up to search for Irish as well as English law.” (Series can, however, be specified within the cases search screen.)

To Coppel, a clear benefit of recourse to nonEnglish law is that one can see how similar laws have developed in similar countries, which can indicate how things might develop in this country, including unforeseen difficulties.

He continues: “You can say to the Court: ’Here’s another jurisdiction with a common juridical heritage; they’ve followed this path [something that hasn’t yet been done in England] and there doesn’t appear to have been reported adverse consequences or any back-tracking.’”

Coppel warns that judges can occasionally be reluctant to be shown foreign authorities: we have, after all, got our wealth of authorities, so “a measured approach is needed“. But in general “courts [in England] are receptive – the higher up, the more so; they’re more curious.”

On this note, as the author of an authoritative book investigating freedom of information, Coppel has looked in depth at five comparative nations, one of which was Ireland. “They had a Freedom of Information Act in 1997,” he says. “The UK’s wasn’t [enacted] until 2005.

They had a head-start [and demonstrated that they are] robust. They still had a public administration that functioned” after the act had gone into force.

But even when he decides not to cite or acknowledge it in court, Coppel will often look for helpful guidance elsewhere.

So does he think that England’s barristers at large are using persuasive Irish law more these days? After all, I didn’t have to make many calls to practitioners at Irish Reports-subscribing sets in England before finding some willing to talk to me about their experiences.

Coppel’s not so sure. “We should be willing to see what’s going on abroad” he says.

But some “practitioners don’t understand the court hierarchy [in Ireland] and just occasionally one senses a bit of a Little England attitude.”

Back in Ireland, telecoms and public law expert Patrick McGovern picks up on the issue of England being in-step with similar jurisdictions, tying in, as it does, with Ireland

25

sometimes getting a head start.

A partner at leading Dublin law firm Arthur Cox, McGovern points to the benefit of studying “analogous statutory law, if [case law] decisions spring from a common EU font.” With echoes of Coppel’s point on freedom of information and its roots in Europe, McGovern highlights Britain’s and Ireland’s telecoms/electronic communications and public procurement regimes, which both now filter down from European directives.

He says: “other countries might do things differently but [England looking to Ireland and vice versa] is a natural first port of call.”

This is an astute observation: the process of turning EU legislation into national legislation of member states is still in its infancy, relatively speaking. So to have access to otherwise scant case law relating to such legislation could be a real boon, particularly if it’s written in the same language and applies to such a similar jurisdiction.

But McGovern is quick to point to better established use of Irish Law in England as well. The People v Edge, [1943] IR 115, is one such example. A case of kidnapping – a common law issue in many respects – it’s been cited with considerable approval in English cases. JustCite points to nine; and those are just the ones that have been reported.

If you delve deeper, it’s clear that that’s just the tip of an enormous legal iceberg.

And yet I still sense that English barristers aren’t yet fully attuned to seeking and using precedent from Ireland, whether they look for it expressly or come across it accidentally through subscriptions that include it as part of a wider package of common law.

It’s clear from my interviews that its benefits are more than just increasing the pool of common law cases, particularly in light of Ireland’s shared EU member nation status.

But despite good qualitative evidence to the contrary, I suspect that a quantitative study of its use would support my final analysis.

But even if other barristers are slow to cotton on to the appropriate and innovative use of Irish precedent, the judiciary might yet applaud your efforts if you’re starting to do so yourself.

26

the barrister

When sorrows come…….

Marc Beaumont considers how the Bar’s Complaints process might be made more tolerable "When sorrows come - they come not single spies - but in battalions."

Hamlet’s Uncle Claudius may have been a psychopathic killer, but he spoke the language of a wise and just monarch. When accusation is heaped on accusation, the world can be a lonely and frightening place. And it is no less so for Barristers.

F

ew Barristers will confess that they found the Complaints process to be stressful, even traumatic, but rest assured that they did. Of course, standards have to be maintained. But so much is this rather disagreeable experience part and parcel of modern professional life, that aspiring Bar students should be given a health warning.

No-one would argue against a disciplinary process that robustly regulated Barristers who deceive the Court, who cannot draft pleadings or legal argument, or cannot properly cross-examine witnesses. However, whilst the Bar’s disciplinary regime processes several hundred complaints every year, only a fraction involve allegations of serious dishonesty or gross incompetence.

That is because the majority of Barristers are dedicated, honest and competent – they could scarcely survive for very long in such an unforgiving profession where much of the work is performed publicly, for other professionals and before Judges, if this were not so.

The screening process But we are all vulnerable to the making of Complaints. And so it is essential that the Bar has a screening process for vexatious complaints. Since the mid-1990s, the Bar has had in place a Complaints Commissioner who exercises this screening function.

Michael Scott was a hard act to follow in this respect. His unique mix of humour, proportion and wisdom was perhaps born from having seen men die in the battle for Mount Tumbledown. The fulminations of a disgruntled ex-client were viewed against that sobering background. But the broad discretions conferred on the Bar’s screener by the Complaints Rules are such that were a hypothetical Commissioner so disposed, (perhaps under political pressure), he or she could stamp an entirely personal approach on the job and allow every complaint, irrespective of its triviality, to proceed to full investigation.

And the pressure for some cases to be taken forward could also

come from within the BSB: the Complaints Committee is under the rules able to “advise” the Commissioner at every stage and can, in effect, “call in” cases from inception and guide the Commissioner and his or her staff accordingly. Whether this is right or wrong is for others to judge, but if there is over-frequent reliance by a hypothetical Commissioner on Barrister advice from the Complaints Committee, the idea of an independent screener is surely diluted.

Which polluter should pay ?

There seems to be a tendency for allegations by clients to be more extreme than ever before. Couple this tendency with the ease with which a Complaint can be made (on-line) and the absence of any compulsory, pre-complaint protocol or issue fee, and a disgruntled ex-client can launch a preemptive attack on a Barrister, without notice, without financial obligation, without fear of an adverse costs order, and due to the defence of qualified privilege, without any personal repercussions at all. It is time to consider if this unqualified freedom is justified. The BSB is an exceedingly well-funded, wellstaffed, bureaucratic machine with powers deriving from statute. It is the police force of the Bar. It does not regulate bureaucracies of equivalent financial and administrative power (because in a profession made up of sole practitioners, there aren’t any), but individual men and women. When the BSB trains its attention upon an individual barrister, the power imbalance is truly massive. Perhaps this partly accounts for the feelings of helplessness, anguish and even depression, when a white envelope containing a Complaint is removed from a Barrister’s pigeon hole.

The reaction of the Barrister to such an experience is the reaction of an individual to the crushing blow of notice of the start of an investigation by a powerful public body against an individual with no resources other than his or her own personal energy, intelligence, self-esteem and mental strength.

In such austere modern conditions, it is submitted that it is time to treat complaintmaking not as cost-free pseudo-litigation for malicious people, but to require all Complainants: (a) to serve pre-complaint protocol letters which give the Barrister time to respond and to explore resolution by ADR, without, at that stage, being formally investigated and (b) to pay a modest issue fee. If the notion that “the polluter pays”

has merit in the eyes of regulators, the malicious complainant who puts so many people to work only for the Complaint to be dismissed after 6 months, is a polluter.

If the Barrister is later convicted, he would have to repay the issue fee. If the prospect of a conviction of the Barrister is fanciful, the malicious complainant would think twice about complaining. And since the Bar is now required to fund the new LSB super-regulator and the OLC, the substantial cost of this process, which is bound to increase year on year, might well be lessened by some issue fee revenue.

Impact assessment What of the complaints that do, unavoidably, require extensive investigation before they can be dismissed ? Here Barristers may wait for 6, 9 or more months for the investigation to be completed. There are many hundreds of such investigations each year. What damage is being done to the Bar’s economic output and professional productivity whilst investigations conducted with the gravitas of investigations into large organisations or the policing of organised crime, weigh so heavily on the wilting shoulders of mere individuals ? How do self-employed individuals manage to function professionally when, if they stop working, they stop earning ? What is the psychological damage being done to hundreds of Barristers each year ? This is no idle thought. It has been considered in the medical profession by the Society of Clinical Psychiatrists.

I propose that the Bar Council should commission a psychological impact assessment on the effect of Complaints investigations and hearings over a given period (say 2 years). The purpose of this exercise would be to determine whether certain Barrister behaviour patterns or reactions could be alleviated or mitigated by new measures. For example, if Barristers were to report in a feedback questionnaire, that they found that a period of 6 months to deal with a trivial complaint was too long and too stressful, how might the BSB improve its performance ? If Barristers were to report that the screener is allowing trivial matters to proceed, how might that problem be ameliorated ? If they were to report that they simply could not work properly, or at all, due to the appalling worry of it all, how might the Bar Council or Chambers do more to support those who are in such a position? If Barristers were to say that the BSB seems to be allowing its process to be used by money-seekers, as a form of cost-free

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satellite litigation, how could that problem be addressed ? The BSB itself would win more support from the Bar in recognising that its users are not merely members of the public, but Barristers and that its procedures should not be unnecessarily oppressive. It must be possible to make the process more tolerable.

In this respect, much has improved about the process over the 25 years of my career.

But these improvements have largely come from outside the regulatory arm and not from within it. In 1996, I advocated the creation of a “Barristers Defence Association”. But the idea became slightly diluted in committee and the proposal yielded the Barristers Complaints Advisory Service (BCAS). This comprises a panel of advisers willing to assist with the defence of complaints. However, the scheme is not enough on its own: the amount of work involved in defending Barristers against often complex matters is such that expecting Barristers to give up time away from their own practices, is not fair to them or to the client-barristers who are entitled to expect as much priority as any other client. This is why I went on to advocate insurance-backed defence and, eventually, the Bar leadership accepted this idea. The upshot is that BMIF now, to its credit, offers such cover as a free add-on to the standard indemnity cover. This is a tremendously important reform for the Bar, but it is notable that it is a reaction to and not a product of the BSB, or of its predecessors, the PCCC and PCC. The BSB could surely, where necessary, itself consider the welfare of the Barristers it regulates, without undermining its raison d’etre.

Due Process Despite the availability of funded defence representation, it is still difficult for the Bar to complain about lack of due process.

There is a natural reluctance to threaten the BSB with judicial review if something goes awry. One area of growing controversy is the report of the Sponsor Barrister. Once a complaint is passed by the Commissioner to the Complaints Committee, a single barrister is deputed by that Committee to prepare a report called the Sponsor’s report. It is this report and this alone that is read by the Complaints Committee members, some of whom are lay members, and not the original complaint or, apparently, the complainedagainst Barrister’s own response. This means that the Sponsor will summarise what the Barrister had to say in the latter’s response.

This would be innocuous were it not for the fact that the Barrister has no opportunity to correct any error in the Sponsor’s report or to comment on any inadvertent one-sidedness.

The decision-makers make a critical decision about the Complaint on the basis of a single, anonymous Barrister’s report, which no-one is able to comment upon before the event, or even to read after the

event. This is despite the recommendation of a previous Complaints Commissioner, Mr Robert Behrens, that such reports should be disclosable to the Barrister complained against, which proposal, curiously, the BSB, did adopt, but still does not practise. It is to be hoped that the BSB will resolve this problem without controversy, especially given the fact that Barristers are in law prima facie entitled to the disclosure of such material under the Data Protection Act 1998.

More generally, the issue is one of transparency. The confidence of the Bar in the BSB would be enhanced by greater transparency in this respect and generally.

It is therefore suggested that the BSB should make a short film of itself at work at: (a) the Commissioner stage, (b) the Complaints Committee stage and (c) the trial stage, so that Barristers have a much clearer idea of what is being done, when it is being done and how it is done. Such a film ought to be freely available on the BSB’s website.

A Barristers’ Defence body ?

But such issues of due process are too important to be left to single articles written by individual commentators like me. I have always been impressed by the work of the League Managers Association. If a Premier League manager has a problem of a disciplinary nature, the LMA will spring to his defence with a public statement. Why can’t the Bar have such a body ? Since the separation of representational and regulatory functions, it ought to be easier for the Bar Council to create a Barristers’ Defence Committee to consider issues of policy and practice, (such as the issue above concerning Sponsor Reports). If it does not do so, I would advocate a return to my 1996 model of a Barristers’ Defence Association, which would represent all Circuits and SBAs and work with the BSB and BMIF to make the Complaints process more tolerable where this is necessary and to espouse individual cases where one person seems overwhelmed by a Complaint. A BDA, like the LMA, would also be able to counter unfair press, media and internet attention, which is becoming a very serious problem. The first three stated purposes of the LMA are: 1. To represent the interests of the professional football managers to The Football Association, Premier League, Football League and all the game’s other governing bodies and stakeholders 2. To promote and publish the views of the professional managers on key issues within the game 3. To protect the rights and privileges of its members It should not be beyond the Bar to create a Committee or body with a similar mission statement, thus: 1. To represent the interests of self-employed

27

Barristers to the BSB, the LSB and the OLC, 2. To promote and publish the views of Barristers on key issues of regulation and professional practice 3. To protect the rights and privileges of its members

Taking “no further action” At the 2009 Bar Conference, the BSB held a workshop at which it became apparent that there is a serious problem with so-called “NFAs”. These are decisions by the BSB Complaints Committee to take “no further action” against individual Barristers.

A technical or trivial breach of the Code, without consequence for a client, might, for example, warrant a NFA. The current rules (Rule 60(c) of the Complaints Rules), provide that in the event of a body such as the Judicial Appointments Commission or Queen’s Counsel Appointments, enquiring about a Barrister’s record, the BSB will say, where a NFA has been made, only that, “a complaint has been received which has not been dismissed”.[ it is understood that this is the tense actually used]. This odd practice was regarded by the Bar Conference workshop Chair, Lady Justice Janet Smith and other delegates as being unfair. The JAC or QCA might well be left with the erroneous impression in cases where the Complaints Committee has taken no further action, that such a decision involved some disciplinary or other stigmatising finding, (or even, due to the odd use of tense, that the matter is continuing, when it is not). As one senior junior in the Temple puts it, “the act of providing such information is arguably ‘further action,’ when the BSB will have resolved to take none. “ Given that no Barrister is entitled to make representations where the Complaints Committee has in mind to take no further action, this is another example of unfair process. It is not difficult to envisage how a Barristers Defence Association (or some similar new Committee of the Bar Council), could assist the Bar to achieve an immediate rule change to remove any suspicion that careers on the bench, or in Silk, are being jeopardised by incomplete reports by the BSB about the actual outcome of disciplinary investigations.

Marc Beaumont is an elected member of the Bar Council and specialises in advising and defending Barristers, Solicitors and other professionals against disciplinary and regulatory investigations.

28

the barrister

Lord Justice Jackson’s report and e-disclosure Following the publication of Lord Justice Jackson’s report on controlling the costs of litigation on 14 January, Chris Paley-Menzies, Head of Forensic Technology at RGL Forensics provides his comments on the report’s proposals in relation to the e-disclosure process.

S

ome of the most common concerns in the management of e-disclosure and the processes leading up to it are the “I need it yesterday” and the “I’ve got 4 terabytes1 of data, what are we going to do with it?” scenarios. Lord Justice Jackson’s report on controlling the costs of litigation builds on the information contained in his preliminary report and directly addresses the first problem but only goes a certain way towards managing the second.

The problems in more detail In my experience, the expectations and demands of lawyers who request the collection of electronically stored information (ESI) for the purposes of legal review vary greatly.

The variation usually depends on their previous experience, knowledge and, not to be underestimated, personal preferences. Problems arise when there is an underlying lack of appreciation of how much material can be produced by even a modest ESI collection and that traditional review techniques may not be appropriate.

Although hardly worthy of the e-disclosure tag, one of the traditional review techniques that still seems to be very common is the simple method of printing everything out and starting at page one! I came across this in practice very recently where around 13,000 documents had been disclosed to a client in electronic form. The documents comprised a mixture of formats: emails, ‘office’ documents including spreadsheets, and a large number of scanned paper documents. The paper documents had been through a fairly rough OCR process to extract the text content. To my surprise, although the document set was being hosted in an online review system that provided search and tagging functions, my client’s first instinct was to perform some basic key-word searches and then print everything that responded. The main deciding factor for this was that paper review was what they were used to; a not unfamiliar feeling throughout the legal industry. The beguiling feel and immediacy of having sheets of paper to hand with strategically placed post-it notes and scrawled annotations is

simple to understand and requires no special equipment or training. However, in my case, with some education and persuasion (not least by bringing in another ‘convert’), I was able to persuade my client to stay in the electronic realm until at least after the second relevance review. To help with this, I devised a simple workflow in the review system using relevant/non-relevant tags and set up their computers with dual monitors to view the document on one and the information about it in the other. The review process, after keyword searching, is still very much a manual one but now document set to be printed is that much smaller.

The case above is not a particularly big one and, in his preliminary report, Jackson LJ, discussed the various sizes of review tasks, from “small” through “medium” to “huge”, and some of the attendant concerns of complexity and cost. However, his final report he has focused on two recommendations: early involvement and education.

Managing timely requests After outlining the inevitability of e-disclosure in cases where either party holds relevant ESI, a large part of the section on E-Disclosure (Chapter 37 Part 2) is devoted to a description of a new draft practice direction from the e-disclosure working party, led by Senior Master Whitaker. Jackson LJ has paraphrased the relevant parts of the practice direction and they are further paraphrased here: There must be: • An early consideration of the technologies to be used in the case. Such technologies may include the use of online document hosting and review systems.

Some systems are touted as ‘early case assessment’ tools and provide a high level view of documents such as emails and how they relate to each other. Another developing technology is that of ‘triage’ software. I recently attended a computer forensics seminar at which one of the subjects was the use of this software to make a preassessment of a computer’s contents prior to collection or disk imaging. As in medical situations, the aim is to ascertain whether priority should be given to an item or even whether it should be considered at all. Some

of these tools work by gathering only data that meets pre-determined criteria such as file-type or key words. The conclusion of the speaker, who was presenting on behalf of law enforcement, was that it was very useful in clear-cut cases, for example those involving illegal pictures. However, in more complex matters, where the textual content of the information to be captured is crucial, the disadvantages of this technique become clear. Imposing relevance criteria at this stage may cut out too much data and run the risk of missing important documents.

• Compulsory exchange of the ESI Questionnaire, (defined in the draft practice direction), which asks for the types of ESI to be expected and its accessibility. Issues of accessibility might concern the location of the data, both physical and logical: a shared network drive on a server based in Germany for example. Data may also be contained within backup tapes which need to be sorted and extracted in a sensible and proportionate fashion. This forcing of the consideration of ESI might have been of assistance in the recent case of Earles v Barclays Bank. In his judgement in the case, His Honour Judge Simon Brown QC, criticised all parties for failing to retrieve or consider preserving all of the contemporaneous phone and e-mail records that would have been relevant to the case.

• Early discussion by the parties of ESI disclosure techniques and definition of ‘reasonable search’. The case of Digicel v Cable & Wireless provides an excellent if unfortunate example of a key-word search performed at great cost but subsequently judged unreasonable. The search terms were revised to be made wider reaching.

Additionally, as mentioned above, multiple backup tapes, which it was originally thought not proportionate to search, were ordered to be included.

• By default, disclosure of ESI should be in native file formats. Traditional practice has been to convert electronic documents into tiff image format, like scanned paper documents, for disclosure. This method has the advantage of being a form of ‘lowest common denominator’ where the data will be accepted into any review system.

However, it has disadvantages because not

the barrister

only will it have a detrimental effect on the appearance of certain document types such as spreadsheets but the process takes time and adds cost.

Jackson LJ’s final conclusion is that the content of the draft practice direction is all, quite rightly, excellent and he makes no further recommendations in this respect.

Managing ‘unmanageable’ data The remainder of the section in the report deals with the problems and fears of the legal system regarding the potentially “enormous” and “practically unmanageable” amounts of information to be dealt with in ‘huge’ litigation matters. From Lord Justice Jackson’s research and submissions made to him, he concludes that judges, barristers and solicitors who deal with e-disclosure in practice and on the bench would benefit from increased education in the technologies and techniques used in e-disclosure.

As my earlier example illustrated, there are still some what might be called ‘traditional’ attitudes and possibly resistance to using technology which might impose a certain lack of control. There is no doubt that

keeping electronic documents in just that format saves processing time, resources and, therefore, cost.

However, viewing documents on a computer screen still has an uncomfortable feel for many and it may take a leap of faith along with Lord Justice Jackson’s recommendations of widespread education to wholeheartedly make the change. Maybe a new screen technology similar to the new ‘e-book’ devices that try to replicate the look of paper would be of benefit?

Conclusions When it is finally approved, I am sure that the new e-disclosure practice direction will be welcomed for clarifying and prescribing case procedures for e-disclosure. I have experienced many very last minute requests to carry out e-disclosure processing. I would therefore welcome anything that starts the parties along the track of identification, capture and processing of ESI earlier in a case.

29

and disclosing ESI. Further, the education of lawyers in the intricacies of the industry and increasing their understanding of expectations will make the job of e-disclosure professionals easier to manage.

However, even with training for judges and lawyers, there is still no magic bullet for those cases with vast amounts of ESI. There is some great technology in the marketplace but it must be combined with the definitions of ‘reasonable search’ and ‘proportionality’ – definitions which have their pitfalls as recent cases, such as Digicel v Cable & Wireless and Earles v Barclays Bank, have shown.

1 According to one illustration, a terabyte could hold 1,000 copies of the Encyclopaedia Britannica.

I also firmly believe that increasing judges’ and lawyers’ general knowledge of document management systems will assist in better timed and managed exercises in processing

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30

the barrister

"The difference between divorce and legal separation is that a legal separation gives a husband time to hide his money." Johnny Carson Commented on by John Frenkel FCA MAE

I

t is unlikely that the present

crunch was affecting him, the new location

The typical problem for the divorcing wife

economic climate has increased

was not yet producing profits, etc etc. We

is that the husband has all the information

the number of divorces but it

eventually got a satisfactory clean break for

relevant to his financial affairs, and it is often

may well be affecting the way

the wife and I was able to console her with

the case that he has advance notice of a likely

that husbands are planning their

the fact that had they not sold the family

divorce when it is he who is playing away.

affairs, should they be remotely

home when they did, there would have been

Even when we get good access to his business

considering the prospect of getting divorced.

a much smaller pot available for them, and in

and his accounts it can still be difficult to

Johnny Carson was well able to comment on

fact they may well have had real difficulty in

assess the business’ prospects.

the merits of trying to plan his affairs as he

even selling their home.

if they are not good then he will be more

Usually

was married 3 times to women whose names

than willing to share that information with

were Joan, Joanne and Joanna (I jest not),

you. However, if the converse were the case

divorced them all before finally marrying

The question that we professionals have to

and the business were about to land some

Alexandra.

ask ourselves is what we can do about the

large order or there were some technical

problem of husbands planning their finances

breakthrough that was imminent, then such

Whether or not Carson hid his money I

in anticipation of divorce.

One of the key

information would most likely not come to

cannot say - but what I can say is that I have

difficulties is that we are usually not even

light. Even a joint instruction may not get

seen cases where clearly wives have not

approached until the position between the

to the bottom of the position, especially

realised that their husbands are planning

parties is clearer, and typically by that time

when the husband has had time to plan his

the finances well in advance of the final

the husband may well have taken steps

finances and may even have taken advice on

separation.

what best to do.

In a recent case, the couple

to organise his finances. The hope is that

had briefly separated and had entered into

awareness by wives of the opportunity for

some informal arrangement about their

husbands to hide assets will encourage

The way round the issue may well be to

finances. The husband then wanted to get

them to seek professional advice as soon as

identify at first, if all possible, when the

together again, to which the wife agreed.

they are suspicious, and not wait until they

marriage started going wrong. This should

During that time they sold the matrimonial

are formally separated.

I was approached

be considered as potentially long before the

house, (just prior to the drop in the property

only recently by the son of a couple who

matter was brought to the wife’s attention,

market, rather luckily for them both) and the

were experiencing matrimonial difficulties.

and means that any financial investigation

husband was insistent that a sizeable chunk

The father is having an affair with another

needs to be from much earlier than might

of the proceeds should be invested in his

woman and the mother is concerned that the

otherwise have been thought to be required.

business, for the purchase and development

monies coming into the family pot is reducing

Husbands have even been known to plead

of a new retail outlet. At the time the wife

and she, via her son, wanted to know what

poverty by asking for support for school fees,

had no reason to object, thinking that their

she should do to protect her position. We

in anticipation of setting a scene of financial

marriage was back on track again. It was

discussed some of the steps that she could

difficulties so that when the inevitable divorce

only when they separated the second, and

take but ultimately the husband will have

followed, they could show long-standing poor

final time, that she realised that the getting

to disclose all of his income and assets and

financial results.

back together had merely been a ruse by the

any intelligence that she could gather now

husband to achieve what his goal was ie to

during this “twilight period” would no doubt

All this of course is not to say that every

invest the money in his business. By the time

prove very useful later in the event that the

husband whose business has turned for

the lawyers and I were fully involved he was

husband was less than truthful in his formal

the worse is trying to cheat his wife out of

claiming that business was difficult, the credit

disclosures.

her proper financial provision.

The art is

the barrister

31

to find out which husband falls in which

an existing family arrangement who may

John Frenkel FCA MAE

category – hence the need for an experienced

well not have the wherewithal to deal with

John is the senior partner of Frenkels

financial review of the husband. Resourceful

the tough decisions needed when all about

Forensics Chartered Accountants, a London

businessmen will find ways to cope with the

is changing.

Thus the reported financial

based forensic practice, who this year are

current credit crunch and take appropriate

difficulties of the former may well have been

celebrating their 30th anniversary. For more

action. Other seemingly successful husbands

manufactured while the problems of the latter

information please visit www.frenkels.com.

may, for example, be no more than second

may be nothing more than poor business

generation owners of businesses who cannot

acumen. The quicker you can identify what

deal with the challenges of working in this

the real position is, the quicker you can

economic climate.

advise your clients as to the real merits of

So when you are next involved in a divorce

spending time and money on ascertaining

case remember that husbands do plan their

whether the husband has been hiding assets

finances well in advance of the divorce.

or not. Getting the wife to give an objective

Consider carefully the extent of the financial

assessment

review that needs to be carried out and how

capability may also prove to be difficult or

far back that should go and also the real

as Zsa Zsa Gabor, the serial divorcer, put

business capability of the husband.

There

it - "You never really know a man until you

can be a significant difference between

have divorced him." The answer will more

the entrepreneur who has set up his own

often than not lie with getting an experienced

business and who may well be more adept

financial review of all the material facts,

at coping with a difficult economic landscape,

not just the husband’s stated accounts and

and the businessman who has walked into

income.

of

her

husband’s

business

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32 p.1

the barrister

be recoverable from the losing parties but would be paid by the claimants.

The full impact of this will be that successful claimants will have to bear the cost of the solicitor’s success fees and the ATE premiums from damages, although any payment will be capped at 25 per cent of the recovered amount.

While Jackson does attempt to make up for this move by proposing an increase in general damages of 10 per cent, it is the Society’s belief and that of our members that this will not cover the whole cost of the claimant in many cases.

The Ministry of Justice’s recent consultation on these fee arrangements proposed that they should be limited to 10 per cent. This would suggest that there is an average 90 per cent success rate in these matters. This seems to be far from accurate and we, the Law Society, are concerned that such a low arbitrary figure may detrimentally affect access to justice for those who have suffered wrong at the hands of the media.

We did make this point in our initial response to the Ministry of Justice consultation and will continue to highlight it in our ongoing assessment of proposed reforms to civil justice.

One way costs shifting The principle as to whether or not clients who have been injured or suffered some other wrong as a result of the negligence of a tortfeasor should have to pay what could be a substantial proportion of the damages recovered is ignored under Jackson’s review.

It is a matter of public policy and the Society looks forward to engaging in further debate on what is likely to be a controversial issue.

There could be some benefit to solicitors in that CFAs should be more transparent . The constant threat of technical challenges which could result in unenforceable agreements in any event could also be removed.

However, there could be disadvantages to some claimants’ solicitors. It is likely they will recover lower success fees and therefore this will affect their income streams and certain types of business models. Most of the recommendations will, in any event, require solicitors, especially personal injury practitioners, to re-assess their business models in any case.

Defendants and insurers will have their costs exposure reduced significantly, although it may mean that they will contest more cases through to trial. Defendants are likely to consider that access to justice for them has benefited but on the other hand their concern will be about how one way costs shifting will operate in practice. However, it remains to be assessed as to whether or not the proposal to increase damages awards by 10% will cancel out any benefit for defendants, or indeed result in them being worse off.

One theme of the Jackson review to grab a lot of attention has been conditional and contingency fees, particularly CFA success fees in defamation matters.

The proposed scheme of one way costs shifting will replace the necessity for After the Event insurance for personal injury claimants, and raises questions regarding the effects on access to justice.

There are some exceptions incorporated into the proposals, such as the provision for an adverse costs order to be made in certain circumstances (e.g. unreasonable behaviour) but that the “legal aid shield test” should apply.

Claimants with assets of any kind though could be hit hard if those assets, such as house equity or pension, are taken into account. If assets such as these are not expressly excluded, accident victims could be denied access to justice unless they could obtain ATE for their own costs. However, this point needs clarification as to when adverse costs orders might apply.

The rationale behind the proposal is that if, in usual circumstances, there is no risk of an adverse costs order then there is no necessity for ATE insurance. The insurance industry argues that this will lead to increases in ATE premiums in other areas of civil litigation.

So far as claimant solicitors and their clients are concerned the two main aspects of the proposal are, first, whether the “legal aid shield” will be as effective as the ATE regime it replaces. This will depend how certain it is that claimants will not be ordered to pay adverse costs. Secondly, solicitors are in fact being asked to pay for disbursements in costs cases. ATE insurers pay out for these at present and it could be a significant additional burden on solicitors’ firms.

In the wider public interest, the cost of

personal injury litigation for defendants is likely to reduce due to the removal of ATE premiums. The ATE industry argues that it could be destroyed with job losses and that it may prove impossible to resuscitate that industry if needed in the future. Because the bulk of ATE the industry relates to personal injury cases there must be some doubt as to whether ATE for other litigation will remain viable as there may not be sufficient volumes of work to justify the business. However, when faced with the possibility of an adverse costs order, albeit a remote possibility, there must be some doubt that many claimants will be prepared to take on the risk without the benefit of some form of legal expense cover. These issues therefore need to be fully considered as part of the continuing debate and before any final decision is made.

What now?

I have touched upon a handful of Jackson’s recommendations here, but by no means covered every issue.

The Law Society has formed a special group to monitor engagement with our membership and external stakeholders. The purpose of this exercise is to assist the Society with its formal response to the report and to lobby the Government and the Civil Procedure Rules Committee in the interests of solicitors who will have to operate under the new system as well as the litigants and society, the systems users.

The implementation group is now gearing up for focus group discussions, regional events and a web survey. The Society is also planning an interim response but only after we have considered members’ initial views on the report’s recommendations.

It would be fair to say that the profession has mixed feelings about the proposals contained in the Jackson report and any recommendations will need to be implemented with great care, following a thorough review of their potential impact on business, the public interest and on access to justice.

The Society looks forward to contributing positively to the debate and to working with Jackson's team and Parliamentarians to ensure that these proposals, if implemented are done so in a way which best serves the public interest.

Des Hudson, Chief Executive, Law Society

the barrister

33

Breaking new ground: an update on developments in litigation funding

By James Blick is a Senior Commercial Broker at TheJudge Limited

A

lthough

litigation

The current market is therefore defined by

Trial but finding it difficult to find a funder,

insurance and funding

the

the, at times, bewildering array of funding

and too large for a ‘full’ (‘no win, no fee’) CFA.

market

relatively

and insurance options available. Whilst

The solicitors would take on a percentage of

young, it has evolved

is

almost all ATE insurance shares certain

the risk (say 30%) of their fees on a CFA and

almost

beyond

common family traits, such as premiums

defer payment of half of the ‘non-CFA’ element

the

that are deferred until the end of the case

of their fees until the conclusion of the case.

early days and the recent publication of

and contingent upon success, beyond these

ATE insurance could cover the adverse costs

Jackson LJ’s Review of Civil Litigation Costs

core similarities there is huge diversity in

and own disbursements in the usual way,

has created new uncertainty over the future

premium structures, policy scope and of

but could

shape of the market and indeed its very

course price. Similarly, third party litigation

deferred, non-CFA element of the solicitors’

existence in certain sectors.

funding, which had initially lurked in the

fees. Counsel’s Clerk could also agree to defer

shadows, has now leapt to the forefront of

half of the brief fee until after the Trial, on the

public consciousness amidst a flood of new

basis that Counsel’s fees were insured under

entrants to the market, and is now being used

the ATE policy in any event.

recognition

since

The Market Today

also be extended to cover the

The litigation funding market for personal

in ever more varied case types, including

injury and clinical negligence litigation has

many which might historically have seemed

Another interesting development that can be

settled into a relatively stable state, with the

impossible to fund.

gleaned from this example, is the increasing

majority of good claims where the Claimant has no pre-existing insurance being funded

willingness of ATE insurers to step out of

Breaking New Ground

by way of CFA and After the Event (‘ATE’) insurance.

their ‘comfort zone’ and offer cover for a proportion of the client’s own solicitors’ fees.

ATE insurance and third party funding cannot

It is still relatively early days for this type of

really be described as “new”, however,

cover and it is certainly not offered by every

In the commercial sector, on the other

there have been a number of interesting

insurer. However, the availability of such

hand, things couldn’t be more different. The

developments in the way that these products

cover is unquestionably on the increase and

availability and uptake of ATE insurance

are being used, chief among which is the

is now a real possibility in larger commercial

was historically more limited, whilst most

increasingly sophisticated way in which they

disputes where the solicitors are already

commercial litigators are still reluctant to

can be combined to produce a bespoke ‘risk

taking some risk on a discounted CFA basis.

offer CFAs in all but a small proportion of

transfer’ package for a litigant.

It is also evident that there is a growing

cases.

For example, whilst it might be tempting, for

shift towards greater transparency of a

However, the global recession has increased

simplicity’s sake, to have a third party funder

party’s insurance arrangements, part of

the focus on ways in which commercial

pick up the entire legal spend, the level of

which has come from the recent tweak to

litigants can minimise the costs and risks

success fee charged might be prohibitive.

the Costs Practice Direction, which now

associated with litigation, especially in such

A more creative approach might therefore

requires the policyholder to disclose the limit

a notoriously expensive litigation centre

maximise the client’s net recovery, or even

of indemnity, as well as which parts of the

as the UK. Moreover, solicitor firms have

enable third party funding to be used in a

claim are or are not covered, in the Notice

now woken up to the benefits of adopting a

case which was not otherwise sufficiently

of Funding. The Practice Direction also now

proactive approach to risk management. Far

large to sustain a funder’s interest.

requires any premium increase trigger points

from being seen as a necessary ‘tick box’

to be notified, although this was always the

exercise, giving comprehensive advice about

As an illustration of how this can work, it

case post Rogers v Merthyr Tydfil

the range of funding options available has

is helpful to take hypothical view as to how

EWCA Civ 1134. On the whole, this is a

become a useful tool for the acquisition and

this approach could benefit a case. Take for

welcome development as it enables

retention of clients, as well as a means for

example a complex litigation which is just

the party on the receiving end of the

law firms to set themselves apart the pack.

hitting the expensive stage in the run up to

Notice of Funding to have a much

[2006]

p.38

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CHARITIES AND APPEALS

37

38 p.33

the barrister

clearer picture of the additional

the multiple to the amount of money drawn

on a global basis with the ‘pot’ then divided

risk faced. It is also likely that

down, for example. These may sound like

up between the various stakeholders. In

a similar notice of funding

subtle shifts, but the differences in terms of

that sense,

obligation will apply to Third

an individual client’s net recovery can run to

the financial risk of litigation on the basis

millions.

of deferred and contingent premiums would

Party Funding in the near future whether by rule change or in compliance with a voluntary

using insurance to minimise

still have a place, albeit that a victorious

code for the industry.

policyholder will have to put hand to pocket

A Brave New World

for the premium.

terms and conditions themselves to be

Of course, it is impossible to talk about

It would of course be hugely short-sighted

disclosed, particularly since the Barr and ors

ATE insurance and litigation funding today

to suggest that commercial ATE would be

v Biffa Waste Services [2009] EWHC 1033

without mentioning Sir Rupert Jackson’s

unscathed by the repeal of s.29. There are

(TCC), where it was held that the terms of

recommendations.

unquestionably

an ATE contract were not subject to privilege

recommendation for litigation insurance is

work because premiums are recoverable,

and should be disclosed, albeit with the

the suggested repeal of s.29, meaning that

in

premiums redacted in case knowledge of

ATE premiums would cease to be recoverable

Furthermore, stripping recoverability would

the premiums might enable the other side

inter-parties.

put price to the very top of every prospective

It is also increasingly common for the policy

The

headline-grabbing

to work out what advice had been given

particular

insured

cases

non-monetary

that

only

claims.

policyholder’s agenda, forcing insurers to

about the prospects of success. In fact, we

This

now often see examples of insured parties

interesting

recommendation

sparked

products out of the market. However, on

voluntarily offering the opponent sight of

fervent debate within the industry, not least

balance, it may be that the growing demand

the policy terms, especially if it is hoped

on the question of whether and when the

created by increasing awareness acts as a

that sight of a suitably comprehensive policy

recommendations

counterweight to any drop off caused by

from a reputable insurer may dissuade the

Those (very important) questions aside, if one

Defendant from making a security for costs

takes the view that the recommendation will

application.

be implemented at some point, it is interesting

Whatever the future of ATE and funding may

to

questions

consider

will

whether

raises and

be

the

numerous

has

implemented.

thriving

compete on price and

pushing expensive

repeal of s.29.

ATE

be, there is no doubt that it will be interesting.

On the funding side, market forces seem to

insurance industry that has sprung up over

Whether these interesting times are a curse

be having a positive effect on the availability

the last decade will be irreparably damaged

or a blessing remains to be seen.

and cost of funding. There is a fairly regular

if premiums cease to be recoverable.

trickle of new funders entering the market,

James Blick is a Senior Commercial Broker at

tempted by the promise of large upsides if

Looking specifically at the personal injury

they back the right cases and this is forcing

sector

the existing funders to compete on price,

market in this sector will not be significantly

whilst widening the application of third party

damaged if Jackson’s recommendations are

funding to lower value cases.

implemented. Many have said that whatever

it is difficult to see how the ATE

happens there will still be a need to insure For example, historically it seemed that most

own party disbursements, it is unlikely that

funding offers included a success fee based

this will be sufficient to sustain the industry

upon either a percentage of the damages

in this sector.

recovered or a multiple of the funding commitment. This percentage or multiple

In commercial litigation, on the other hand,

would often be the same whether the case

the effect is not likely to be so dramatic.

settled early or ran for years and regardless

There has already been a growth in demand

of how much of the funding commitment

for funding products in forums in which

was actually spent. Whilst this structure

premiums are not recoverable including

unquestionably remains relatively common,

, in particular, international arbitrations.

we are increasingly seeing examples of

Similarly, much of the large scale commercial

funders becoming more creative in their

litigation that benefits from ATE insurance

approach to pricing, by linking the success

does not produce a neat recovery of costs at

fee to the duration of the litigation, or linking

the end of the day, but instead is compromised

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