Inner Temple Yearbook 2017 by The Inner Temple

TREASURER

2017â&#x20AC;&#x201D; 2018

YEARBOOK

David Pittaway QC

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From the Editor’s Desk

2017— 2018

YEARBOOK

T HE HONOUR ABLE SOCIE T Y OF T HE INNER T EMPLE YE ARBOOK 201 7—2018

TREASURER

David Pittaway QC

Inner Temple Yearbook 2017—2018 Treasurer: David Pittaway QC Reader: The Rt Hon Lady Justice Gloster DBE Sub-Treasurer: Patrick Maddams Hon FRIBA Treasury Office Inner Temple London EC4Y 7HL 020 7797 8250 Yearbook@innertemple.org.uk www.innertemple.org.uk Master of the Yearbook: Sally Smith QC Editor: Alex Wright Assistant Editor: Henrietta Amodio Yearbook Manager: Nadia Ruiz Desk Editor: Emma Hynes Archivist: Celia Pilkington E&T Editorial Team: Fiona Fulton Daisy Mortimer, Julia Armfield Photographs: Garlinda Birkbeck; Abhimanyu Bose; Paul Clarke Photography; MPP Image Creation; Inner Temple’s photograph archive, Alamy; Imperial War Museum; National Portrait Gallery; News Syndication Brandworld Design: SomeOne, 67 Leonard Street, London EC2A 4QS Design: Jon Ashby, Atul Lad and David Jordan Cantate Communications, Cowcross Studios, 30 Cowcross Street, London EC1M 6DQ

The Inner Temple Yearbook 2017–2018

FROM THE EDITOR’S DESK This has been a remarkable year for unfortunate reasons. I cannot remember a time before when there have been such ill-informed or deliberately misleading attacks on the judiciary from the press, from MPs and through social media as there have been in the last 12 months. In such times it is a privilege to edit this Yearbook which contains learned and rational debate and opinion, including in respect of some particularly contentious areas. Reading the Education and Training sections of the Yearbook, and indeed Master Treasurer’s article, is a reminder of the importance the Inn places on the development of those entering the legal profession, and we should be grateful to all those who give their time and energy in this field. I was recently walking through the Temple, when I realised it was Call Night as I saw so many fresh faced new barristers posing for pictures with their families. It set me thinking of 20 years ago when I was called to the Bar, and listened as we were instructed in the duties of a barrister by the then Treasurer, the late Master Staughton. Things have changed an awful lot in those 20 years, but those core duties of a barrister, to act fearlessly for their client, to assist and not mislead the court, to act with integrity, have not. There are intense pressures placed on members of the Bar, and in particular the junior members, to place expedience and cost-cutting ahead of justice. I hope that all members of the Inn, particularly those who hold judicial office, will support those newly called junior members whenever they properly put their duty towards their client ahead of doing the easy thing, and remember that they are acting in accordance with the values they are taught at this Inn. I hope that you enjoy the variety of articles, ranging from powerful writing on current controversies, to information about the Inn’s educational and social activities, through to fascinating historical pieces, which appear in this edition of the Yearbook. My thanks go to all who have generously given their time to contribute, and in particular to the Yearbook team headed by Henrietta Amodio, who work so hard on the production of this book with an endless supply of good humour. Alex Wright Goldsmith Chambers

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CONTENTS

The Inner Temple Yearbook 2017–2018

From the Editor’s Desk

Contents

Alex Wright

Contents page T

From the Treasurer

Joshua Blew

James Conway Davies 2

Celebrate the Life: Master Goff

Master Tomlinson

David Pittaway QC L

READER’S LECTURE SERIES

Judges and Politics: Too Close or Too Far Away? E

Celebrate the Life: Master Swinton Thomas

WW1

A Review of Revels: From Blaze to Blitz

An International Community

The Work of the Marshall Hall Trust T

Master Shields

Practitioner Experiences of Civil Recovery under the Irish Proceeds of Crime Act Dr Colin King T

Pupillage after 28 Years at the Bar T

Sub-Treasurer

READER’S LECTURE SERIES

Show Me the Money!

Ramakrishnan Viraraghavan

Master Aldous

The Limits of Fiduciary Rules

Professor Sarah Worthington

Master Butterfield, Master Anthony Temple

Legacy of War: Wilfred Lewis and The Jutland Head Money

READER’S LECTURE SERIES RL

Master Falconer C

EU Timeline

Sally McLaren

EDUCATION & TRAINING E

EDUCATION & TRAINING

Library Facilities and Services

Master Shields A

The History Society 2017

Celia Pilkington

Celebrate the Life: Master Hirst C

The Times T

Sharing Best Practice:

Some Features of the Commercial Court in England Master Moore-Bick T

Marshall Hall’s Legacy

Master Smith

The Library’s Role in Legal Research, Training and Outreach

The Social Context of the Law: What is Europe?

30 T

Foreword by Master Scruton

The Social Context of the Law: Who Are We? T

Master Schiemann

The Social Context of the Law: What is Europe? T

Master Sedley and Master Sumption

The Social Context of the Law: What is Europe? T

Master Tugendhat and Kirsty Brimelow QC EDUCATION & TRAINING PS

Pegasus Scholars

Contents

Work of the Bar Liaison Committee

103

The Inner Temple Yearbook 2017–2018

Temple Big Picnic

134

Law and Religion

136

Simon Baker C

Celebrate the Life: Master Toulson

104

Master of the Temple

The Times TC READER’S LECTURE SERIES

The Predicament and Agency of Refugees RL

106

Temple Church Choir News

138

Roger Sayer

Dr Reuven Ziegler T

The Inn’s Amity with Gray’s Inn

108

Master Cryan T

Artificial Intelligence

110

Kay Firth-Butterfield T

International

112

Master Kabir Sheikh A

Oral History Project

114

Master Nice, Master Higgins and William Gallagher T

The Summer Party

122

Inner Temple Golfing Society

140

Master Hodge C

COIC

142

Timeline

143

WW1

James Lloyd

WWI: Hilton Young

146

Bijan Omrani

Weddings and Baptisms at the Temple Church

138

Bar Liaison Committee

152

New Benchers

154

List of Benchers in Seniority

155

People Finder

155

Committees

155

Wellbeing Conference

124

Master Spearing

Thomas Aynscombe and the Charles II Rose Water Dish and Ewer T

127

Master Lawson and Richard Parsons G

A Decade Already? The Garden

130

Andrea Brunsendorf

KEY T T C A L E

Celebrate the Life: Lady Laws

His Honour the Reverend Rupert Bursell QC

132

PS RL G TC WW1

INNER TEMPLE INFORMATION TREASURY CELEBRATE THE LIFE ARCHIVES LIBRARY EDUCATION & TRAINING PEGASUS SCHOLARS READER'S LECTURE SERIES GARDEN TEMPLE CHURCH WORLD WAR I COIC 3

The Inner Temple Yearbook 2017–2018

From the Treasurer

FROM THE TREASURER David Pittaway QC

It is a great privilege to be Treasurer of the Inner Temple, particularly at a time when the Inn is taking steps to reestablish itself as a centre for education and training. I believe that the future relevance of the Inn, as a working institution, will depend on the Inn providing life-long learning to students and practitioners both inside and outside the jurisdiction. Over time, I believe the Inn should become a world class centre for advocacy training.

As many of you will know, in 2015 the Inn conducted a Strategic Review, chaired by Lord Hunt, an Honorary Bencher, which held a series of meetings with interested groups in London and an open session for members of the Inn who were able to come. The review that was carried out did not seek to provide all the answers but it did emphasise the importance of the unity of the profession at a time when there is an increasing division between the Commercial Bar and the common law and Criminal Bar, particularly sets dependent on publicly funded work. It endorsed the emphasis on the Inn’s educational role, which both through the work of the Education and Training Department and the Advocacy Training Council, now the Inns of Court College of Advocacy, is undergoing a significant transformation. Since the transfer of the Inns of Court School of Law to City University and the opening up of the Bar Professional Training Course to other providers, attempts have been made at trying both to improve standards, reduce costs and ameliorate the problem of a declining number of pupillages. To date, those efforts have been largely unsuccessful, partly because of the concerns of the Legal Services Board that proposals put forward reduce accessibility to the Bar, and partly because no constructive alternative plan has been put forward to the Bar Standards Board. A study undertaken for the Council of the Inns of Court in 2015 indicated a high level of dissatisfaction by both present and past students on the course, which extended well beyond the cost of the course. Following the BSB review of the BPTC in recent time, COIC is preparing a detailed feasibility study on providing the BPTC course itself, dividing the course into Parts 1 and 2; Part 1 concentrating on core subjects before students can move onto Part 2. COIC is looking at the provision of Part 1 of the course online at a significantly reduced cost and the ways in which it can provide a Part 2 course, either on its own or with a partner provider. I believe that there is now a real opportunity for the BSB and four Inns, working together, to come up with proposals that will lead both to an improvement of standards and provision of a BPTC at a lower cost. It should not be forgotten that the Inns collectively provide the existing providers with a significant part of their funding through the scholarship funds awarded to students. This Inn awarded scholarships close to the sum of £1,750,000 this year. 4

“ I believe it is important that the Inn thinks outside the box in looking forward as to what it offers both students and practitioners alike.” The traditional role of the Inn providing qualifying sessions has also been under review. Students, pupils and young barristers continue to benefit from residential weekends and advocacy courses organised by the Inn, at Wotton House, Highgate House and Cumberland Lodge. The Education and Training Committee continues to look at ways in which qualifying sessions can be improved. One of the recommendations of the Strategic Review was that the Inn’s Education Department should start thinking about the consequences of increased educational opportunities in conjunction with the Library. It certainly seemed to the review that there was an opportunity for the Library to play an enhanced role in educating both the next generation of barristers and practitioners on the effective use of research methods of legal data bases. It is encouraging to see the range of services that the Library is now providing, recognised nationally by the award the Librarian received this year. Earlier this year I asked the Chair of the Education and Training Committee to set up the 2022 Advisory Group to prepare a blueprint for the Inn’s educational requirements over the next five years. The result of their deliberations will be put before the Executive Committee in the autumn and is likely to contain key recommendations both as to what the Inn’s objectives should be and how they should be achieved. Some of their thoughts are radical, but I believe it is important that the Inn thinks outside the box in looking forward as to what it offers both students and practitioners alike.

From the Treasurer

The current main issue is Project Pegasus and the development of a state of the art educational centre with training rooms and an auditorium, to reflect the increased requirement for training facilities within the Inn. The centre will also be available to organisations providing other educational activities. Last year, I achieved a large measure of agreement between the Inn’s departments as to how they can collectively use the remodelling of the Treasury Building to their advantage. The plans preserve the use of most of the existing rooms in the Library without the galleried areas and provide for an additional book storage room in the lower ground floor with a reading desk. Planning permission was finally granted on 4 July 2017 and a full proposal will be put before the Project Pegasus Steering Group, the Executive Committee and Bench Table for further discussion in the autumn. I am aware that there are Benchers and Members of Hall who remain resolutely opposed to the proposed development, however, there needs to be a recognition that there are limited options available to the Inn if it is to provide the educational training facilities that are now required. Since the decision of Bench Table to proceed with Project Pegasus in October 2015, the rationale for proper educational facilities, requiring an auditorium and training rooms, has been strengthened by COIC’s decision to investigate providing its own Part 1 and 2 courses. It should be expected that the regular presence of students in the Inn will lead to an increased use of the Library as a place in which to study. I do ask that once the final decision has been taken, whatever it may be, there will be a recognition that we should pull together for the good of the Inn. To survive as a working institution, we must remain relevant and provide the level of education and training suitable for a modern profession. Throughout the time I have been involved with the Inn, one of the issues that has caused concern is the practical steps the Inn is able to take to involve members on circuit. Membership of the Inn’s committees is a vital part of providing direction and policy to the small number of staff in London. It is recognised that it is very difficult for circuit members to attend meetings in London on a regular basis in the early evenings. One of the

The Inner Temple Yearbook 2017–2018

“ To survive as a working institution, we must remain relevant and provide the level of education and training suitable for a modern profession.” matters being looked at is the provision of proper audio and visual facilities within the Inn. Longer term, it is my view that the relevance of the Inn to members of the circuits should be reinforced by the development of educational opportunities on circuit for both trainee barristers and practitioners. The comprehensive development of a new website for the Inn, creating a virtual Inner Temple, under one identity is another exciting project, which should be in place by October this year. Considerable work has been put into how the Inn should present itself in the future, using our traditional emblem of Pegasus in innovative and exciting ways, across the full breadth of the Inn’s formidable array of activities. There will be more opportunities for our members, nationally and internationally, to access information about the Inn from the website. The new website will be linked to the Library website, which already provides a wealth of information to its users. By the time that you read this piece, we will have returned from a trip to South East Asia on behalf of the Inn, where we will have visited Brunei, Singapore, Malaysia and Sri Lanka. One of the pleasant surprises this year has been to discover the level of interest in the Inn of other Commonwealth countries and the vigour of their commitment to maintain an d develop their links with the Inn in the future. I have spent time this year developing the Inn’s links with High Commissioners, Ministers of Justice and visiting Chief Justices, as well as other visiting judges. In conclusion, I believe strongly in the importance of building on the historic relationship the Inn has with the judiciary and legal profession in other countries in the Commonwealth. David Pittaway QC

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The Inner Temple Yearbook 2017–2018

The Judges and Politics

THE JUDGES AND POLITICS: TOO CLOSE OR TOO FAR AWAY? From a lecture given by Master Falconer on 14 November 2016

Throughout the whole time that I was a minister, but most particularly when I was Lord Chancellor, there were persistent endemic tensions between the judges and the politicians. The tension is inevitable and emblematic of the fact that two limbs of our constitution, the executive and the judiciary, are genuinely separate. At its root, the tension is the product of the role which the judiciary has rightly assumed for itself over the last 60 years of holding the executive to the law.

In the first part of the 20th century, there was none of the tension that now exists between the judges and the politicians. There was a huge overlap between the Bar and the Commons. The very best lawyers became law officers, and the Lord Chancellor was almost invariably a titan who was both a big lawyer and a big politician. Judicial review did not exist, and the prerogative writs were rarely used to strike down decisions of the executive. Human rights played no part in the armoury of the courts. The judges had very frequently been MPs, and the Attorney General would invariably take the opportunity of becoming the Lord Chief Justice if a vacancy arose during his term of office. The position is now profoundly different. The executive is probably the most regular litigant in the Supreme Court. The law has developed detailed rules for striking down decisions of the executive and the courts loyally apply these rules in accordance with the law, rather than with any notion of politics, even though these decisions very frequently have political consequences. The executive has a profound interest in those decisions going their way. There will be politicians, campaigners and parts of the media with strong views about the decisions that they would like. Much of the media covers politics by reporting events in ways designed to pressure people or institutions to change their position; the minister they want to resign, the director of social services they wish to be penalised for social workers’ failures, the head of the health trust they wish to resign for poor management. These campaigns are legitimate and promote higher standards, but judges are in a very different position. They take decisions in accordance with the law. They may get it wrong, in which case there is an established route to get the decision changed, unlike almost every other area of public policy. If it is perceived to be legitimate to attack the judges, as opposed to the decision, simply because the media disagree with the judicial decision, then the rule of law is undermined and at risk, because the purpose of such campaigns is to get people – the judges – to change their behaviour.

It is legitimate to contend the decision is wrong or to attack a judge for delay, or bias, or corruption where there was proper evidence. But it is damaging for the rule of law for there to be campaigns designed to make the judges change their mind, or take a different view in a subsequent case, because of the abuse which is poured on their heads. Why should judges be free from the abuse which other public servants often suffer simply for doing their job? Because the rule of law depends upon judges deciding cases on the basis of the evidence and the law, and not on the basis of the pressure brought to bear by people who take a different view. On the day after the Brexit judgment was delivered, the response of the Daily Mail, The Daily Telegraph and The Sun was to attack the judges personally for the decision they had made. The method of attack was to imply illegitimate motives; too pro-EU or too pro-the government, or that they were part of an elitist group determined to thwart the wish of the people to leave the European Union. The attacks made by the media were wholly unjustified. The abuse heaped on the three Brexit judges has not included any suggestion that there was misconduct on their part or that the legal reasoning was so flawed as to call into question the performance of their job. Quite the reverse; the attacks were an irresponsible response to a judgment that the newspapers did not like. It was significant because it was widespread amongst the Brexit-supporting press, and it was significant because it met with no response from the government. Rather worse, the government acted in a way that suggested that it was not unsympathetic to the attacks. The Prime Minister refused to issue any statement about the judges in the days after the press attacks. When she did finally speak, in an interview she gave in India, she said she valued press freedom and judicial independence. Nobody has suggested that the press be muzzled in the attacks they can make, only that the attacks be rebutted by the executive. More striking was the silence of the Lord Chancellor. The Lord Chancellor has a special and specific responsibility within government to defend the judges. It is constitutionally crucial that there is an institutional defender of the judges. In many cases, the judiciary cannot defend themselves without compromising their impartiality. Here, the head of the judiciary

Reader’s Lecture Series

The Inner Temple Yearbook 2017–2018

for England and Wales was one of the judges in the case. He could not defend the court without descending into the fray. A Lord Chancellor who does nothing whilst a vicious press campaign is conducted against individual judges conveys the sense that she, too, is displeased with the way those judges have discharged their judicial function. The Lord Chancellor’s statutory obligation is to defend the judges, reinforced by the oath she swore when she took office. That statutory obligation and that oath trump any agreed line within government, or the directions or wishes expressed or implied by the Prime Minister. This can lead to tension with one’s colleagues, but the duty of the Lord Chancellor is absolutely clear. The holder of the office must have the political courage and inclination to take on all comers in defence of the judges when it is necessary. The grave nature of this responsibility led the legislature to impose a unique requirement on the Prime Minister before she chooses her Lord Chancellor. Section 2 of the Constitution Reform Act 2005 says that a person cannot become Lord Chancellor unless he or she “appears to the Prime Minister to be qualified by experience”. This section is saying loud and clear that the Prime Minister can only appoint someone if it appears their experience demonstrates they can do the job. The section identifies categories of experience the Prime Minister can take into account: experience as a practising lawyer, an MP, a minister, an academic lawyer, or any other professional knowledge the Prime Minister considers relevant. It is intended to make the Prime Minister focus on whether the new Lord Chancellor is up to the job, not just on the basis of some untestable judgment but on the basis of their experience. The 2005 reforms to the role of Lord Chancellor were made on the assumption that protections were needed to ensure that the Lord Chancellor remained a powerful defender of the rule of law within government. When Liz Truss was appointed, it appeared there was no basis on which it could be said that she was qualified by experience. The point having been made when she was appointed, and that judgment now having been horribly vindicated when she so starkly failed the test over these last weeks, it is impossible for her to continue for any length of time as Lord Chancellor. Should the Lord Chancellor always be a lawyer? In reality, the quality required is an understanding of why standing up for the judges matters to the whole constitution, and the willingness and strength to stand up for the judges when the circumstances demand it. However badly the executive behaves, the judges must continue to uphold the law and decide cases in an independent way. Over the last 20 years, the judiciary have been scrupulous in their impartiality and have also risen to the challenges which changes in our society have brought to the court system – not just in doing more with less, but also in dealing with a whole range of issues which society faces; for example, the increased number of care cases; for example, the expanded role of the Court of Protection in providing protection for vulnerable adults; for example, in dealing with the hugely expanded role that inquests now play in our system. The judges have stepped up to the plate brilliantly. They have done it, even though these areas are controversial, without losing the confidence either of the public or of the range of stakeholders who use the courts regularly.

“ The quality, integrity and willingness of our judges to do their job, without fear or favour, has a profound effect on the temper of our society.” Whatever the Daily Mail may say, the judges who decided the Brexit case unquestionably did so on legal, not political, grounds. Impartiality and reliability of that quality is rare and a very significant strength for the United Kingdom. Our constitution is based on two foundations: democracy and the rule of law. The citizen is entitled to the protections of our law, whatever the majority of our country would prefer on a particular issue. We so take for granted the acceptance of the principle of the rule of law in this country that we find it hard to believe it could be seriously imperilled. That approach is reflected to some extent in the dismissive remarks of the Lord Chancellor that the press criticism is not going to endanger judicial independence. This incident may not on its own, but if the relationship between the media and the judges were to change significantly so that the judges became fair game for more “Enemies of the People” headlines, then inevitably judges would become more conscious of the press response. That could affect decisions. My experience of judges when faced with press criticism has been that they are robust but determined not to be the story. It is the result which should be the story. In this whole Brexit case row, they have done nothing – exactly the right response. It is for others to rebut the criticism which has come, and for the executive, through the Lord Chancellor and the PM, to make absolutely clear the government is unwavering in its support for the judges and the rule of law. If the government and the media continue to believe that the judges who make decisions they do not like should be spun against, like a political opponent, then there is a lot more at stake than the government and the media who made those remarks. The Rt Hon the Lord Falconer of Thoroton The full version of this lecture is available at

www.innertemple.org.uk/education/lecture-series-2017 9

The Inner Temple Yearbook 2017–2018

Master Swinton Thomas

CELEBRATE THE LIFE: MASTER SWINTON THOMAS Tribute given by Master Butterfield at the Requiem Mass for Master Swinton Thomas in the Church of Our Lady of Victories on 31August 2016.

Swinton Thomas was a lovely, lovely man. Do you remember his handwriting? Strong, clear, straight upright strokes of the pen – always a pen – always in black ink. You could pick it out from a million others. It was unique, wholly distinctive, special, a one-off. And so was he. And the way he spoke. Yes, his voice certainly; a wonderful, resonant voice, so easy to listen to. But also, that tiny pause before he spoke, almost imperceptible, giving weight and authority to what he said. Dignified, distinguished, utterly memorable. And so was he.

Swinton was born in Glasgow in January 1931 but in 1940 he was evacuated with his young cousins Ian, Ted and Mary, to Halifax in Nova Scotia. The Atlantic crossing, he remembered for the rest of his life. It took 13 interminable days, but he survived it and the rigours of the freezing winters before returning to England in 1945 and to school at Ampleforth, which he also survived. After school, he completed his National Service with the family regiment, the Cameronians – the Scottish Rifles – in which he achieved the rank of Lieutenant. He then went up to Lincoln College Oxford having obtained an Exhibition and where he was later an honorary fellow. He must have been pretty outstanding even then – Lincoln College turned me down like a bedspread. He was called to the Bar in 1955, and became a member of the Inner Temple, of which he was later a Bencher and in 2001 the Treasurer. He joined the Western Circuit, of which he was later a Presiding Judge, and practised from Chambers at 4 Pump Court. It was there that I met Swinton in 1965 when I became a pupil in the same Chambers. He was by then a busy and successful junior barrister and our paths seldom crossed professionally. My abiding memory of him in those early years of our friendship was of Friday afternoons when he and other like-minded members of Chambers would equip themselves with appropriate quantities of gin, put the conference sign up on the door of his room and settle down to 2 or 3 hours of ferociously competitive bridge, much to the fury of the clerk. As the young pupil – ‘the boy’, as Swinton and Angela referred to me throughout his life – I was sent out to buy the gin, and if they were short of a player invited to join them. It was in that capacity that Swinton taught me the hard way never to take your partner out of a business double. Then and thereafter to me and to many others Swinton was a role model, a man of great warmth, approachable, immensely supportive, helpful and encouraging to barristers young and old alike. He also enjoyed the occasional bridge party on a Saturday in his bachelor pad in Kensington and it was there that I first met Angela. In 1967, he married her – next year they would have celebrated their golden wedding anniversary. He was devoted to her and she to him. If ever there was a marriage made in heaven it was theirs. It was always a delight to be in their company: he attentive, charming, charismatic;

she his perfect partner, captivating, gentle, and the very embodiment of kindness. They were full of tenderness, affection and concern for each other. Angela will miss Swinton dreadfully: he was the centre of her life. And so will their children, Melissa and Dominic and the grandchildren of whom Swinton was immensely proud, Luke, Sam and Lara. In 1985, Swinton was appointed a High Court judge and in 1994 he was elevated to the Court of Appeal, where he sat until his retirement in 2000. I appeared before him on many occasions as a barrister and sat with him in the Court of Appeal after my own appointment to the Bench. He became what today we would describe as the ‘go-to judge’ for terrorist trials. On occasion, he was provided with intensive security so that everywhere he went he travelled in an armoured car with special branch Land Rovers ahead and behind, and men with earpieces and hands under their armpits following him when he took the dog for a walk. He and Angela bore this intensely intrusive security with patient acceptance. He explained that it was actually very convenient when he stopped off for a rubber of bridge at the Garrick on his way home from Court. There was never a problem with finding a parking space. However, he explained ruefully, at the end of one such trial, after about 6 months of this protection, the allegedly highly dangerous defendant was acquitted of all charges. Swinton returned to his room at the Old Bailey to find that his security detail had vanished. He had to go home on the tube. One of his many attractive qualities was that he could not say “No” to any request. He accumulated legions of god children in consequence of his willingness to say “Yes”, and always remembered each and every one of them. Swinton was himself a great memorialist: he spoke brilliantly at many funerals and memorial services, always saying after each one that he was never going to do it again, and always doing it. On one of those occasions, he described another distinguished judge as a man of great conviction with a strong moral sense and a highly developed perception of right and wrong. He could have been describing himself. For my part I would say this. It is a truly special thing to find in a single human being the attributes of a strong intellect, personal integrity, courage, a true sense of what is right and just, all qualities he wore so lightly and modestly. As a judge, Swinton possessed those qualities in spades. His professional achievements were prodigious and he was a highly respected and greatly valued judge. But beyond that he was endowed beyond measure with the gift of friendship. He was the friend of countless friends, supremely generous to them all, both in practical ways and with his time, his advice, and his wise counsel. His hospitality was simply prodigious. Not only did he entertain his friends but happily surrendered his house in Sheffield Terrace to Dominic and Melissa for them to give parties, parties which he ensured were properly stocked with the requisite supplies. He loved to travel with

Celebrate the Life

The Inner Temple Yearbook 2017–2018

Angela: they invariably spent their summers somewhere in the Mediterranean – Provence, Greece, or perhaps his favourite, Italy. The Amalfi Coast, where he died, was a part of the world he loved. He first visited before he was married and frequently returned there. It had also become a tradition for him to take his whole family, children, grandchildren, everyone, on annual exotic holidays in the sun and he reveled in their enjoyment. It amused him greatly that the name of his travel agent was Mr Economos. Economos was not the word to describe the holidays he so generously provided. On his retirement from the Bench in 2000, he was appointed the Commissioner for the Interception of Communications, a position he held until 2006 and to which he brought his considerable skills, rightly earning golden opinions of those who worked with him. He was less well-loved by the government, who I am delighted to report found his steely determination to ensure that they acted fairly at all times distinctly uncomfortable. He also took on the role of Vice Chairman to the Nolan Review on Child Protection in the Catholic Church. What may be less well-known is that Lord Nolan was only prepared to chair the review if Swinton was also appointed, so much did he value Swinton’s judgment, his innate acumen and his intellectual skills. Shortly after the publication of the review and in recognition of his work on it, he was awarded the Order of St Gregory the Great and in 2005 he became the Chairman of the Association of Papal Orders. He was a dynamic and innovative Chairman. From 2009 onwards, he introduced biannual pilgrimages, which have to date encompassed Rome, the Holy Land, Lourdes and Santiago de Compostella. For some years Swinton was the President of the Thomas More Society, a Society for Catholic lawyers. If he were able to share a prayer with us this morning he might well have chosen the words of St Thomas More writing to his daughter from the Tower of London the night before his execution. “Pray for me, and I shall for you, that we may merrily meet in heaven”. He was a man who was much loved and will be greatly missed. Fear no more the heat of the sun, Swinton. May God bless you, and may you rest in peace. Sir Neil Butterfield

Master Swinton Thomas by Garlinda Birkbeck

Tribute given by Master Temple at the Memorial Service for Master Swinton Thomas in the Temple Church on 24 January 2017 The front of our order of service refers to a ‘Service of Thanksgiving…’. It might equally well have referred to ‘A Memorial Service…’ or ‘A Celebration of the life and work…’ At Swinton’s service, as in his life, these concepts of thanksgiving, memory and celebration go hand in hand, and these words of mine, at Angela’s request, combine them in fond recollection of someone we loved.

FAMILY We should recall at the outset that the enduring context of Swinton’s life was his family. From their marriage in 1967 and thereafter, Swinton and Angela were well known as an engaging, glamourous and hospitable couple. With Melissa and Dominic, they formed a close unit, not in a sentimental or cloying way, but with Swinton as a devoted husband, and father and grandfather of children and grandchildren he adored.

EARLY LIFE Swinton and his first cousins Mary, Ted and Ian were evacuated as children in July 1940 across the Atlantic to stay with family in Canada. Swinton was 9 years old. Each day they would wake to find their convoy a little smaller, the full significance of which only really dawned years later. This shared experience cemented a lifelong bond between the cousins. Although Swinton was an only child, years of living together throughout the war made them as close as sister and brother. It is very fitting that members of each of the cousins’ families are able to be here today. Swinton loved life. This service in the Temple Church reflects two main aspects of his life, religion and the law, and brings them together. But Swinton had such wonderfully wide interests that we might equally well celebrate in many other appropriate venues: the opera house, the concert hall, the Garrick, any number of theatres, innumerable restaurants – and abroad, often in exotic locations, on holiday.

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This is no eulogy. Swinton did have some defects. Count 1 on the indictment – as it were – must be his driving. No one volunteered to be Swinton’s passenger on a second occasion. This offence, if that is the right epithet, was compounded by his reluctance to accept that his driving was less than perfect. Before marrying Angela, he had a sports car – a Triumph Spitfire – which had to be returned to the makers. Swinton said that it suffered from a manufacturing defect. Those he drove knew otherwise. Count 2: Sleeping in the theatre. It was not unknown for the first act to be disturbed by a gentle noise – could that have been snoring? For his theatre companions this posed a delicate question: What do you do? A dig in the ribs. But when you emerged for a drink in the interval – with Swinton there was always a drink in the interval – he would display his close knowledge of what had happened on stage. How did he do it? This was a man who, before anyone else, knew the latest play, the latest film, and the latest book. You may add that this encyclopaedic knowledge extended to the latest information, one might even say ‘gossip’, on all the current issues of the day. And that is just the debit side. It was uplifting, fun and full of good companionship.

THE BAR AND JUDICIALLY It was National Service in the Cameronians which provided the 2-year ‘crash course’ in the psychology of crime, human nature and matrimonial law, which served Swinton so well in court. At the Bar, Swinton combined a finely tuned judgment with time for pleasure, a clear sense of duty with dry humour. Imagine the scene at the conclusion of a few days in the Privy Council. As we were about to leave, an elderly Law Lord said, “Mr Thomas. Look at page 28 line 7 of your printed case. Please convey to your learned junior that their Lordships are not attracted to the use of the transposed Oxford comma.” Swinton did not hesitate. “Your Lordship may be assured I will give the appropriate advice.” And everyone in court, apart from the Law Lord, knew what that advice was.

FRIENDSHIP AND RELIGION Many of us here today knew Swinton for a long time and owe him a great debt for his wise advice and friendship. Underlying Swinton’s sense of humour was a deep well of wisdom and knowledge. If there was any question of right or wrong, of identifying the better course to take, the touchstone was to ask: “What would Swinton say?” He possessed an unerring, intuitive sense of what was right. He was a constant source of wisdom and kindness, and generous with his time and counsel to many dear friends of all ages. For a judge, he was one of the least judgmental people. Where did this come from? No doubt in part from his strong sense of religious value. This led him to become the senior lay member of the Roman Catholic Church in England. Yet he never paraded his position or his religious beliefs. This humanity, one might even say humility, not overt superiority, made him all the more approachable. Well into his 80’s, Swinton led pilgrimages to the Holy Land. The itineraries read like a religious assault course, with pilgrims ascending mountains, crossing rivers and descending into holy grottos – with Swinton at the head, as the leader. It is hard not to ascribe his safe return to divine intervention.

THE GARRICK Within the Garrick Swinton was a keen and hugely popular member, attending frequently to play bridge and to dine.

Master Swinton Thomas

In response to an internal survey – risking one question too far – the Club asked: “Do you have any other comments?” Swinton replied, “The Garrick gives me more pleasure than almost anything else in my life.” Of course. It would.

THE WILSON DOCTRINE On leaving the Bench, Swinton was appointed Interception of Communications Commissioner. Was I alone in enjoying the stark contradiction between Swinton’s elevated role in overseeing the nation’s communications and the idiosyncratic style of his personal emails? It is true that they improved with time, but they retained distinctive layout, spelling and language all of their own. Although today is not the occasion to debate the Wilson Doctrine, Swinton’s report as Commissioner for 2005-2006 is required reading. I remind you of three paragraphs, because Swinton believed in them, because they are a worthy tribute, and because they are vintage Thomas: I quote: “54. What is more difficult to understand is the basis of opposition apart from self-interest or, possibly, lack of understanding, in the maintenance of a privilege enjoyed by nobody else, given that there are perfectly adequate safeguards in place that serve MPs and non-MPs alike. In the conversations that I have had with Ministers and members of Parliament on this issue, I have not been able to find any logical, and, certainly not, any principled objection to change – apart from self-interest… “55. To the best of my knowledge, there is no other country in the world that provides the privilege to its elected representatives and Peers to be immune from having their communications lawfully intercepted with the accompanying advantage that they may be immune from criminal investigation and prosecution.” “57. In my view the Doctrine flies in the face of our Constitution and is wrong. I do not think that it provides MPs with additional protection. I think in fact that it is damaging to them.” Clear. Punchy. To the point and plainly correct. If you ask an independently minded person of judgment, such as Sir Swinton Thomas, to advise, that is what you get. It is not so far from the Temple to Westminster. One hopes that his message will finally get through.

ENVOI Shortly before Swinton’s death last August in Italy, on holiday, we dined at the Garrick. In what now appears to be a knowing portent, he said that the one thing he wanted to do before he died was to revisit the Amalfi Coast. It was there that, three weeks later, he suffered a cardiac arrest while swimming in a hotel pool. In death, as in life, his insight was as perceptive as ever. Swinton has not gone. Though his voice may be stilled, we are uplifted by enduring memories and his legacy of the highest values. Drawing these strands together, the funeral service reflected our grief. Now we have come to terms with Swinton’s death, the question arises: How would Swinton advise us to leave at the end of this service? He would want us all to be positive. As the family say – “to enjoy the party”. We may choose – with a spring in our step; a song in our heart or a smile on our face. We should leave today with Thanksgiving, Yes. In Memoriam, Yes. And, above all, in Celebration. Anthony Temple QC

The Inner Temple Yearbook 2017–2018

Legacy of War

LEGACY OF WAR: WILFRID LEWIS AND THE JUTLAND HEAD MONEY By Master Grahame Aldous With the end of the Great War in 1918, the Admiralty Court in London became busy with claims arising from the war at sea. The claims included claims for Head Money – payments from public funds to officers and crew of Royal Navy ships who had sunk enemy vessels, calculated at £5 per head of the German crew on board the vessels that had been sunk. Wilfrid Lewis, a member of Inner Temple returning from the war in France, became a leading practitioner in this unusual field and represented claimants, including those from the most famous naval battle of the war, the Battle of Jutland.

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WILFRID LEWIS Wilfrid Lewis had spent the war as an aide-de-camp in France, serving as a captain in the Glamorgan Yeomanry. Twice he was mentioned in dispatches, as well as being awarded the military OBE. Born in London in 1881, he was the eldest son of a practising barrister, who was the son of a bishop. His mother was the daughter of the surgeon to Queen Victoria’s household. Lewis was thought to have a natural dignity, a fine presence and the tastes of a Welsh squire. He was described by his fellow judge, Sir Wintringham Stable, as “tall, goodlooking, and sociable” and as from an early age “well endowed with those social graces which he preserved throughout his life”. He went to Eton where he played cricket, football and fives and then took a third in modern history at University College, Oxford in 1903. Two years later he was admitted to Inner Temple and was then called to the Bar by the Inn in 1908. In the same year as his Call to the Bar, Lewis married his first wife, Margaret, the daughter of John Eldon Bankes KC. His father-in-law later went on the High Court Bench and then to the Court of Appeal, and was a distant relative of the famous Admiral and mentor of Nelson, the Earl St Vincent. Although Lewis had practised in Cardiff before the war, on his return Lewis joined his father-in-law’s old chambers at 3 Hare Court. His practice blossomed in various fields, including libel and ecclesiastical law, but in particular he seemed to corner the market in Admiralty claims about captured ships and awards of Head Money.

HEAD MONEY Head Money in England dated back to the reign of Queen Anne. The Cruisers and Convoys Act of 1708 introduced a bounty payable to those who captured enemy ships, paid at a rate of £5 per head for every man living on board the captured ship at the beginning of the engagement.

Although such bounty is sometimes referred to as ‘blood money’, the bounty was paid whether the enemy sailors were killed, injured or survived unharmed. There was no need for blood to be spilled for the entitlement to arise, although there had to be an ‘engagement’, i.e. combat. During the French Revolutionary and Napoleonic wars between 1793 and 1815, the Prize Act 1793 allowed a payment of £5 per head where ships were captured or destroyed. By the First World War the Naval Prize Act of 1864 allowed Head Money to be authorised by an Order in Council. With the consent of the Treasury, Head Money payments were authorised by the King at a meeting of the Privy Council at Buckingham Palace on 2 March 1915. The rate remained at £5 per head despite 200 years of inflation. As a result, the amounts, when distributed among those entitled to it in the First World War, were sometimes quite small. In one case, a squadron of 15 Royal Navy ships had destroyed four German mine sweepers with total crew of only 107 men. The award of £535 had to stretch among all the British officers and crew of the squadron involved, and the Admiralty Court was told that the admiral commanding the squadron would forgo his share in favour of the officers and men on whose behalf he had brought the claim. Nevertheless, the law reports contain many claims made on behalf of the ships’ crews involved in action. They include claims allowed for depth charged U boats, but only where there was proof of destruction. It was this work that brought Lewis before the Admiralty judge in 1920 in a claim for Head Money for the German Imperial Navy ships that had been sunk at Jutland.

JUTLAND In the summer of 1916 the only fleet battle of the First World War took place off the coast of Denmark’s Jutland Peninsula. 151 ships of the Royal Navy’s Grand Fleet under Admiral Jellicoe and a battlecruiser squadron under ViceAdmiral Beatty fought 99 ships of the German Imperial Navy’s High Seas Fleet under Vice-Admiral Scheer and a fast scouting battlecruiser group under Vice-Admiral Hipper. 14 British ships were sunk, including three battlecruisers, with a loss of 6,094 lives. 11 German ships were sunk, including 1 battlecruiser, with a loss of 2,551 lives. British losses were aggravated by poor communications and poor ammunition handling techniques. The latter led to devastating explosions and Beatty’s dry comment to his flag captain that “Something seems to be wrong with our bloody ships today”. Eighteen-year-old Able Seaman George Wainford on board the destroyer HMS Onslaught during the battle, and one of those entitled to the Head Money, later described the experience of sinking the enemy and of being hit in return:

Treasury

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British Battleship IRON DUKE opening fire at the Battle of Jutland, 31 May 1916, ROYAL OAK, SUPERB and THUNDERER ahead © D.Faviell/IWM (Q20139)

(Imperial War Museum Oral History Archive)

Wainford may have been referring to the original meaning of ‘shambles’, as a butcher’s slaughterhouse. History has tended to accept the more modern usage of the word as equally applicable. Both fleets made it back to port and claimed the battle as a victory. The Royal Navy had chased the Imperial Navy out of the North Sea, the Imperial Navy had avoided destruction by a much larger enemy and in a war of attrition had inflicted much greater losses than they had suffered. Both navies still had their ‘fleets in being’ even though they never met in battle again. Although, contrary to mythology, the Imperial High Seas Fleet did put to sea again, the naval war moved to a war on commerce, a war that eventually brought the United States into the conflict, and German defeat.

For a British public hoping for a new Trafalgar and an annihilation of the Imperial Navy at the hands of the Royal Navy, the ‘victory’ fell short of expectations. Recriminations began before the ships reached port. Conflict between supporters of Jellicoe’s cautious, strategic approach and those of Beatty’s more aggressive but less considered attitude divided the Royal Navy. The battle was re-fought in attempts to colour the Admiralty’s official history of the Battle of Jutland.

“ The aura of invincibility that some had supposed the Royal Navy to have before the battle had slipped, perhaps for good.” When the war ended thoughts turned to claiming Head Money for the German ships that had been sunk. Despite the differences between Jellicoe and Beatty, there was a mutual need for some agreement. Given the difficulty in showing whose action had brought about the destruction of any particular enemy ship, the flag officers agreed to treat the battle as a joint and common enterprise. The government did not oppose the claim for Head Money, or the agreement to treat it as a joint and common enterprise. Head Money was not, however, paid automatically. An application had to be made to the Admiralty Court for a declaration.

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“ So we fired our torpedoes and there was a terrific explosion and the German ship blew up like that. ‘Cor,’ they said, ‘we got them!’ And the moment somebody said that, either one shell or a salvo hit our bridge. There was a terrific bang, a fire started the port side of the fo’castle, …. I found out later that the foremost forward gun had a direct hit, they were all killed and injured. Commander was killed, first lieutenant was killed, warrant officer was killed. The coxswain at the wheel was killed and there were several more wounded. You know, it was a bit of a shambles really.”

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Legacy of War

‘PERHAPS THE GREATEST BATTLE IN HISTORY’

AFTERMATH

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The agreed approach was approved by the Admiralty Court in 1920 when Jellicoe, by then a Viscount, and Beatty, by then an Earl, applied for Head Money from the battle for themselves and their men. The agreement between all the parties resulted in what some members of the Bar may regard as an ideal brief for Lewis, an uncontested application with the opportunity to make a grand statement about his clients’ actions with the world listening. It was no part of his duty, Lewis exclaimed, to extol “the bravery of the British Fleet”. Nevertheless, the subject of the proceedings was, he said, “perhaps the greatest battle in history”, which had “an incalculable effect on the course of the war”. Lewis felt no need to reflect any doubts about the outcome of the battle, instead issuing a ringing endorsement of the growing mythology: “The victory of Jutland was so great a victory that on the morning of June 1 at 11 o’clock in the morning, the British Fleet was left alone on the scene of action, the enemy having fled to their home port, where they remained, and never came out again to challenge the supremacy of the British Fleet. They only emerged at the end of the war to surrender.” Whatever the controversy surrounding the battle, and public expectation of a result to rival Trafalgar, the post war pride of the Admiralty Court was clear. The Admiralty Court judge, Sir Henry Duke, was cut from rather different stone to Lewis, but he shared the desire to acclaim a great victory. Duke was the second son of a clerk at a granite works in Devon. Born in 1855 with no family connections or fortune he did not go to university, but became a journalist on the Western Morning News. When at 25 he became a reporter in the press gallery of the House of Commons he started studying for the Bar while reporting on politics, and was called to the Bar five years later, in 1885. He built a successful practice on the Western Circuit before entering parliament and then going on the Bench. He was made the President of the Probate, Divorce and Admiralty Division in 1919. Of this trio of wills, wives and wrecks he was on firmer ground dealing with divorces, bringing, so it was said, a ‘natural seriousness’ to bear. As an Admiralty judge he was later described by the Lord Chancellor as “satisfactory but lacked technical knowledge”. When it came to the award of Head Money to the Jutland claimants, however, Duke, urbane and always courteous to counsel in court, knew his role. “The record of these proceedings”, he declared while approving the agreement between the parties, “will be one of the most cherished documents in the archives of this Court”. Based on a calculation of 4,537 men on the destroyed German ships, the total award was assessed at £22,685.

Whatever his technical limitations as an Admiralty judge, Duke was rewarded with a peerage in 1925, becoming Baron Merrivale of Walkhampton in Devon. Having wound up the post-war work of the prize court, he retired from the bench in 1933. He died in May 1939, seven months after Chamberlain had returned from Munich declaring ‘Peace for Our Time’, and four months before the outbreak of another war with Germany. Lewis became a Bencher of Inner Temple in 1929 and the following year was appointed as junior counsel to the Treasury, the so called ‘Treasury Devil’. He in turn then offered a former pupil a place in his chambers on a salary to devil his papers for him. Despite misgivings about the effect on his career, the pupil accepted the post and moved back to Lewis’s chambers. The offer, with its salaried nature, seems a very modern arrangement for 1930. The pupil was another member of the Inner Temple, Sir John Ashworth, and his personal journals are now lodged in the Inn archives. The journals record a life of work, golf and shooting parties, and attending parties at the Lewis homes in London and Henllan, in mid-Wales. Lewis and Margaret had one son and four daughters, but Margaret died in 1932. After the funeral in Wales, Lewis was hit hard by the loss, but he remarried in 1934. With his new wife, Elizabeth, he had two more sons. The year after his remarriage he was appointed a judge of the King’s Bench Division and awarded a knighthood.

“ Lewis served in the Home Guard during the Second World War and as a member of the Choir Committee was involved in the rebuilding of the Temple Church after the damage during the Blitz.” In January 1950, he was taken ill during a trial at the Old Bailey. He died in hospital two months later, mourned as a friend and as a loss to his Inn.

IN MEMORIAM The Woodland Trust are raising funds for a Jutland Memorial Wood as part of their World War I Centenary woods at Langley Vale in Surrey. Meanwhile, the wrecks of both navies’ ships still lie together on the bed of the North Sea, joined together in a silent graveyard of lost sailors. Recent explorations have revealed that the ships have been looted for the copper from their condensers. The condensers, which had proved somewhat ineffectual in both nations’ ships under the high speeds of wartime service, have become valuable sources of plunder from the grave. Still identifiable as ships of great fleets, the wrecks serve as a reminder of the human cost of war. Sunk, but not forgotten. Grahame Aldous QC https://www.woodlandtrust.org.uk/blog/ 2016/04/battle-of-jutland-memorial-wood/

Reader’s Lecture Series

SHOW ME THE MONEY Practitioner Experiences of Civil Recovery under the Irish Proceeds of Crime Act

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Also, there have been alternative approaches suggested in relation to seizing proceeds of crime. We see a lot of debate now about unexplained wealth orders with the Criminal Finances Bill. There are also the potential for illicit enrichment offences. As I say, this has been a sweeping overview of different aspects of following the money. I think it will be evident from the title of my talk today that I want to focus on one aspect of following the money – the non-conviction based approach.

From a lecture given by Dr Colin King on 16 January 2017

The non-conviction based approach has attracted a lot of criticism. For example, on the grounds that it runs contrary to due process safeguards, or that it undermines the legitimacy of the criminal law.

I am delighted to be here talking about this topic. I have worked on proceeds of crime legislation for over 10 years now. As you will see, it has proved to be very controversial.

Proponents of the non-conviction based approach reject those criticisms. They say that this is a civil process, that there is no need for criminal procedural protections, that the action is taken in rem and that it is a proportionate response to tackling organised crime.

I will talk about a project I’m currently working on where I have interviewed practitioners who work on proceeds of crime legalisation. I think the controversy and the divide that this area creates is evident in these sample quotes: one person talked about how non-conviction based confiscation (or, civil recovery in the UK) is ‘like chemotherapy, there’s no better treatment’. In contrast, others said that it is “not a level playing field”; that it “does not afford citizens proper entitlements”. Clearly, there is a split in opinion.

FOLLOW THE MONEY At the outset it is worth doing a very brief overview of this idea of following the money. I know many people in the audience practise in this area so it will be second nature to them. But for other people, such as students on the BPTC who might be interested in this area, it is useful to have a quick snapshot of dirty money and developments here. Dirty money is widely claimed to be a significant cause for concern. It is commonplace to hear policymakers, practitioners and law enforcement agencies proclaim the threat to society caused by dirty money. The origins of contemporary policy in this area can be traced to the 1970s and 1980s where there was widespread concern that criminals were avoiding prosecution and/or conviction. As a result they were able to enjoy the proceeds of their illgotten gains. The result of this then is that the focus on following the money trail emerged. There are now detailed rules on anti-money laundering (AML) and counter terrorist financing (CTF). This focus on dirty money is not only an issue at the national level. Significant developments are evident at the supranational level. The European Union has been very active with their four money laundering directives. The FATF, the Financial Action Task Force, has its recommendations. The UN has been very active in this area, especially after 11 September. Alongside detailed rules on AML and CTF, there have been substantial developments in relation to seizing the proceeds of crime. This is done through conviction-based procedures and non-conviction based procedures. A conviction-based procedure, as the name suggests, can only be imposed subsequent to a criminal conviction. With a postconviction confiscation order all of the enhanced procedural protections of the criminal process will apply, such as the presumption of innocence, exclusionary rules of evidence, and criminal standard of proof. Post-conviction, during the confiscation hearing, the standard of proof applied is the civil standard and the rules are akin to the sentencing stage. In contrast, then, you have the non-conviction based (NCB) approach and this is often referred to as civil forfeiture, non-conviction based asset confiscation, civil confiscation, civil recovery; in short, they refer to the same thing – seizing assets without a criminal conviction.

The courts have agreed with that stance. In Ireland we had the Gilligan case in 2001. In the UK there was Gale in 2011, both courts upheld the NCB approach. It came before the European Court of Human Rights in 2015 (Gogitidze), and again it was upheld. I won’t rehearse arguments about due process concerns or the legitimacy of non-conviction based approach today. Instead what I want to do is to focus on distinct aspects of civil forfeiture. I want to look at legal aid and access to justice. Then to look at some of the evidential rules that have applied. I’ll finish off then talking about incentivisation. As I go along, I will draw upon interviews that I conducted with practitioners in Ireland.

LEGAL AID First of all, legal aid. An important issue in the early years of modern civil forfeiture legislation was whether a person should be able to fund her defence, and/or any legal challenges, using property that is suspected of being the proceeds of crime. For example, if a person is a suspected criminal should she be entitled to use the fruits of that suspected crime to hire legal representation? If not, what options are available to ensure that that person has the opportunity to properly defend proceedings against her? One option is legal aid, but that has proved very controversial. There were concerns in Ireland in this regard. There were concerns that suspects were taking frivolous legal challenges, or that they were either challenging the constitutionality of the legislation or dragging out their defence, and the result was that assets were being dissipated. There were some cases where, when a final order was being made, there were very little assets to satisfy that order. As a result, an ad hoc legal aid scheme was implemented in 1998. I should say the data on legal aid is still being analysed. So I’m only going to mention some brief observations today. What I will say is that this has proved to be the most controversial aspect of the entire research project that I have undertaken here. To be awarded legal aid a person has to make an application to the court. The court must be satisfied that that person’s means are insufficient to enable that person to obtain legal representation. To this end a person must file an Affidavit and/ or provide some information to confirm that he meets the requisite criteria. Some of the people that I interviewed, for example, the CAB representatives or the barristers who acted on behalf of the Bureau, were very positive about how the legal aid scheme operates. They argued that it operates very fairly and that no person goes unrepresented. Critics strongly disagreed with this. They say that the Bureau challenges applications for legal aid and that they do so as a means of obtaining information that should be confidential between the client and legal advisors.

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Show Me The Money

It was also suggested that applications for legal aid are overly lengthy. One barrister told me that he had an application for legal aid go on for two years before it was granted. A solicitor told that he had been driven out of this area of practice as a result of how the legal aid scheme operates. He contrasted that with how legal aid operates in criminal cases where applications are much more straightforward.

She said she could not challenge that on cross-examination. She spoke about the futility of challenging the Chief Bureau Officer’s belief because he will simply claim informer privilege.

Just to mention quickly two further areas here. First of all, under the ad hoc legal aid scheme fees are calculated on the basis of parity between counsel for the Bureau and counsel for a respondent. One proponent suggested that this was a fair way of operating the legal aid scheme. Others however pointed to this leading to a great deal of uncertainty. They say that all too often they did not know how much they were going to be paid, that they would not find out until often months later when counsel for the Bureau had submitted their expenses. It has also been suggested that there is a significant imbalance between the parties. For example, one interviewee said that the Bureau has a forensic accountant on tap, that they can call upon that forensic accountant any time that they want. The Bureau can also call upon a senior counsel, the equivalent to a QC. With the legal aid scheme, in contrast, one solicitor spoke of acting for seven respondents and, when he applied to the court for legal aid for each of those, he was awarded a senior counsel to represent all seven. I’m sure practitioners here know you cannot have one barrister acting for seven different people. Their interests simply will not coincide.

It’s a similar experience with expert witnesses. To give an example, there was one case where the courts did grant expenses for a forensic accountant. They allocated €3,000, it was an hourly rate of €150, so essentially the court was allowing 20 hours of work. … Interviewees contrasted that with CAB being able to call upon their forensic accountant, with no limit to the hours that person can work on the case.

EVIDENTIAL ISSUES The next area to move to is belief evidence. This is probably the most controversial evidential provision in the Irish proceeds of crime legislation. Section 8 of POCA permits a senior police officer or revenue official to state his or her belief that a person is in possession or control of specified property, that property constitutes or is derived from proceeds of crime, and the property is not less than €5,000. If the court is satisfied that there are reasonable grounds for that belief then that belief can be admitted as evidence. I think there is a need for caution with this type of evidence. The courts recognise this. They talk about the “very great potential of unfairness” of belief evidence. They talk about difficulties and undermining cross-examination. While they recognise the difficulties, that has not stopped the almost routine admission of belief evidence in POCA cases.

Before I turn to informer privilege I think it is important to talk about corroboration. While there is no requirement of corroborating evidence, and one CAB official told me that a case can succeed solely on the basis of belief evidence on its own, in practice it does appear that a more stringent approach is adopted. A number of interviewees stressed the importance of corroborating evidence. One barrister said that on the face of it you can read the legislation and say, “Oh my God you can get an order on the back of some fellow’s words.” He said in practice the courts are always careful to ensure that there is substantiation. Another barrister said that almost by definition there will be corroboration in every case. There was criticism from defence practitioners, however. They suggested that belief evidence undermines the presumption of innocence, that such information would be inadmissible in a criminal case, that it would not meet the criminal standard of proof. One person said it’s “hearsay on hearsay on hearsay” and suggested that it’s “far from a level playing field”. The difficulty in challenging belief evidence is most evident with the issue of informer privilege, where the respondent does not know the source of the evidence against him. It begs the question can a person receive a fair hearing when information is kept from that person which could potentially impact upon his ability to defend the case against him. Proponents did acknowledge the difficulties that this could cause but they were keen to emphasise that there are procedural safeguards in place. Some said that courts might approach such evidence with caution and that it is possible to challenge such evidence by cross-examining the Chief Bureau Officer. When I put this to defence counsel, they strongly disagreed. One person said, “That’s not a great safeguard. You asked the guy a question and he says, ‘I can’t answer that, the information is confidential.’ That’s not a great safeguard.” The next evidential issue that I look at is anonymity. The Criminal Assets Bureau Act contains a number of provisions in relation to investigator powers. One of which provides for anonymity of non-Garda, non- police bureau officials and other members of staff. On an application from the Chief Bureau Officer the court can grant anonymity if satisfied that there are reasonable grounds in the public interest to do so.

Proponents of belief evidence, they have recognised difficulties, but they stressed that this evidence is used appropriately. They say that a person can challenge such evidence.

I feel uneasy about anonymity. I think the granting of anonymity to a state official on the ground that a person is ‘involved with people who are involved with organised crime’ does leave this sense of unease. I’m not saying that anonymity will never be appropriate. But I think the courts have been too quick to accede to a request for anonymity. The approach in PS, for example, was essentially to grant anonymity on the basis of guilt by association.

Critics disagreed. One person told me it’s “impossible to challenge”. That person described the situation where she represented a person who was suspected of, but never charged, with drugs offences. In that case the Criminal Assets Bureau put forward their grounding Affidavit which said that this person is suspected of being responsible for at least six murders.

I think there are a number of concerns with the approach of the courts in granting anonymity. For me, it is a fundamental feature of the administration of justice that the trial process be subject to public scrutiny and that witnesses tender evidence in public. I think this is crucial to maintaining confidence in the legitimacy of the system, especially where the witness is a state official.

That person had never been questioned by the police either about drugs offences or murder. The solicitor here took exception to that approach. She said that she had no objection to the Criminal Assets Bureau using their powers in appropriate cases.

Notwithstanding such concerns, though, a number of interviewees came down very strongly in favour of the anonymity provisions. This was on the basis of the nature of the crime and people being investigated; concerns for the safety of Bureau officials; the capacity of people involved in serious crime to threaten officials; and the composition of the Bureau – it is a small unit and there were concerns that if word got out it will be easy to identify who worked for the Bureau.

But she did have a problem with them putting up an Affidavit to say that person is responsible for six murders when that had no relevance to a proceeds of crime application. 18

Reader’s Lecture Series

The Inner Temple Yearbook 2017–2018

Other people who were generally supportive of the proceeds of crime legislation and the Criminal Assets Bureau were indifferent about the anonymity provisions. One person said it’s simply an operational matter for the Bureau and had no other opinion. Another person said quite clearly that she had no particular views at all on the anonymity provisions. Others were much more critical. Some said that anonymity is “over the top”. They said that solicitors and police officers are identified, so why would you need anonymity for revenue officials? It was also said that proceeds of crime applications are not confined to serious crime. One person spoke about, in his practice, proceeds of crime applications being taken mainly against market traders. One person went so far as to say that, “I think [anonymity] is preposterous. … That does give rise to serious concerns in relation to transparency, accountability and equality between the parties.”

INCENTIVISATION The fourth, and final, point – and I am conscious of time, so I won’t dwell here – is incentivisation. What happens, or what should happen, to property after it is seized by the state? So, we have different options. You could have that property, or the proceeds if that property is sold, ringfenced for community use. For example, it might be put back into educational projects or drug treatment projects. See the cashback for communities system in Scotland. Another option is to send all of the money that is seized back to the central fund. Turn it over to the minister for finance and leave that department to decide what to spend it on. That’s what happens in Ireland, all money seized by the Criminal Assets Bureau goes back to the Department of Finance. A third option is that the money might be allocated either in full or partly to law enforcement agencies. In England and Wales there is the Asset Recovery Incentivisation Scheme (ARIS) where 50% of the money goes to the Home Office and 50% is shared between the agencies involved in seizing that money. So you have these three options. I’m very uncomfortable with the incentivisation approach under ARIS. It has the potential to distort police priorities. It skews targets, it sends them off focusing on easier, and more lucrative, prey where they can get more money in very quickly rather than focusing on targets that are having a much more negative impact on society. Interestingly, in the interviews that I conducted in Ireland, every single person was against incentivisation. They all said that the agency involved in Ireland (the Criminal Assets Bureau) should have nothing whatsoever to do with the assets once they are seized. That the decision on how to spend that money should be a matter for the ministry for finance. I was surprised that we actually had one area where there was so much agreement. I think that’s one area that should be looked at here in the UK with the ARIS scheme. On that note I’ll finish there. Thank you very much. Dr Colin King University of Sussex, Academic Fellow of the Inner Temple

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15/08/2017 13:12

The Inner Temple Yearbook 2017–2018

From Blaze to Blitz

FROM BLAZE TO BLITZ By Master Shields

FOR 2 NIGHTS ONLY – 30 NOVEMBER AND I DECEMBER Fire of London image credit: Andreas Resch

1666

FROM BLAZE TO BLITZ

1941

A musical and theatrical review written, directed and produced by Master Shields and Master Kinninmont and starring: Miriam Margolyes, renowned stage and screen actress. Jeremy Clyde, distinguished actor of stage and screen. Cordelia Williams, brilliant young concert pianist. Master Pascoe and Ian Winter QC lead many talented players, musicians and vocalists of the Inner Temple.

This dazzling show will feature both classical music and popular songs from the 1940’s and will tell the story of The Great Fire and Blitz as they assailed the Inn.

THANKS TO THE GENEROSITY OF OUR SPONSORS, TICKET PRICES ARE ONLY £20 (or £10 FOR STUDENT MEMBERS) INCLUDING A PRE-PERFORMANCE DRINK

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George Bernard Shaw once wrote to Winston Churchill inviting him to an opening night, adding he could bring a friend “if he had one”. Churchill replied that he was already engaged that night but would come to the second performance “if he had one”. It is the fate of Revels’ productions that they open and close on consecutive nights and Blaze to Blitz was no exception.

Devised and written by Masters Kinninmont and Shields the show was dedicated to celebrating the Inn’s survival of the Great Fire and the Blitz, respectively 350 and 75 years ago. As every school boy knows, the fire was put out by the Duke of York’s men on the roof of the then Hall and German bombs destroyed the Hall’s successor in the final and most damaging display of bombing in May 1941. Undaunted members continued to practise and the Courts remained open, all of which shows that fire and brimstone can invoke great courage. Divided into two parts the production attempted to show events as they unfolded through a mixture of dramatic vignettes and music accompanied by lighting, sound and visual effects projected on to a gigantic screen behind the stage. The first half, The Fire, set the two great diarists, Pepys, played by the Inn’s leading thespian, Master Pascoe, against his rival social commentator, John Evelyn, played by Bruce Houlder QC, poached from one of our rivals, and a protégé in his youth of

“ …although his primary concern, ahead even of his wife’s safety, was to make sure his gold was secure and his other chattels removed from his home in Seething Lane.” 20

the Old Vic. Each diarist had his own version of the fire and the part they played in observing its progress and plans for rebuilding London. It was Pepys who had first alerted the King and his younger brother to the threat the fire posed, although his primary concern, ahead even of his wife’s safety, was to make sure his gold was secure and his other chattels removed from his home in Seething Lane. The preservation of his parmesan, then a valuable commodity, was also high up in his thoughts. In the aftermath of the fire, Parliament appointed a number of High Court judges to act as Fire Judges and to assess claims for damage to limb and property. Those judges, some of whom were Inner Templars, were, to their chagrin, unpaid but instead immortalised in individual portraits by Joseph Wright of Derby, one of the greatest artists of the 17th century. Five of those portraits, originally in the Guild Hall, can now be seen in the Gallery of our Hall. Recently restored, they present a magnificent spectacle of power and pomp (and probably considerable pomposity). One scene recreated a possible claim before them and featured the distinguished actress Miriam Margolyes as the would-be bogus claimant. This was not her first performance for Revels in the Inn, and once again she displayed the talents which have earned her a BAFTA award and a stellar career in television, films and theatre.

Revels

The Inner Temple Yearbook 2017–2018

One of the other consequences of the fire was the introduction of fire insurance and Peter Cowell QC, doyen of Middle Temple Revels, was at his best playing Nicholas Batten who gave birth to what is now a massive industry. Batten was an extraordinary Jacobean entrepreneur, physician, economist and speculator responsible for building most of the Strand- in breach of the scanty regulations then in play and whose father was a strict puritan called Praise God Barbon. He christened his son Nicholas – if Jesus hadn’t died for thee thou hads’t been damned. Lucky he was not called to the Bar. The musical interludes, which included Manuel de Falla’s Ritual Fire Dance by way of prelude and Stravinsky’s Firebird, in the only known transcription for piano, were played by Cordelia Williams on the Inn’s Steinway. Cordelia was BBC’s Young Pianist of the Year in 2006 and the superb technique and conviction of her playing showed why her international career is flourishing. The second half took on a more light-hearted vein, notwithstanding the events it had to reflect. The actor Jeremy Clyde, who older member of the Inn may also remember as one half of the singing duo Chad and Jeremy, took on the role of the Narrator. His measured tone and clipped enunciation delivered a performance which was a tour de force and lifted the performance of all those round him. Coward’s London Pride and Don’t Let’s Be Beastly to the Germans”, banned at the time for being unpatriotic, showed why his singing career continues to this day. He was equalled by Pippa Woodward, a member of the Inn and a child star at the Royal Opera House, rendering A Nightingale Sang in Berkeley Square. All the songs were accompanied by a band put together by talented saxophonist and criminal silk Ian Winter QC. Vera Lynn’s iconic White Cliffs of Dover, with Pippa Woodward again on vocals, brought the evening to a close, with hopefully no disappointed member of the audience wanting to throw themselves off them.

The inspiration for the production was to show how the people of London and, in particular, members of our Inn, had responded to and overcome the threats of fire and bombs. Although the Hall was destroyed on 10th May 1941, two previous Blitzes in September and December 1940 had also damaged large parts of the Inn’s estate and the message which emerged from a number of eye witness accounts from the time, ranging from an Irish Nurse to the then Sub -Treasurers’ wife, Cecile Robinson, was that of an understated but determined resistance leavened by extraordinary humour in adversity. Photographs from the Inn’s archive, projected on to the screen, captured the physical desolation in marked contrast to the human elation of survival. These productions and the presence of a number of top class professional actors, working with student and practising members and friends of our own and fellow Inns, is only possible because of the generosity of our sponsors, Charles Stanley and Hampden Agencies, and the genius of Master Kinninmont, whose geniality and talent as a professional producer and director has enabled us to source rare acting talent at a huge discount to their professional worth. Tom Shields QC Master of Revels 2010–2016

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Archives

The Inner Temple Yearbook 2017–2018

THE HISTORY SOCIETY 2017–2018 By Celia Pilkington, Archivist The History Society continues to thrive at the Inn with a wide focus on subjects as varied as The Criminalisation of American Politics from Nixon to Today, and The Landscaping of the Garden following the Creation of the Victorian Embankment. Master Baker celebrated the 50th anniversary of his Call with a dinner at the Inn on 22 November 2016. Before dinner, Master Baker delivered a lecture on the dismissal of Sir Edward Coke, the Lord Chief Justice, in 1616. The Lord Chief Justice had invoked the power of the Rule of Law (relying on Magna Carta) in resisting attempts by James I, and his ministers, to change the law without resorting to Parliament and to govern by arbitrary diktat. These actions eventually led to his transfer to the Chief Justiceship of the King’s Bench where it was felt that he could do less damage. The Society held its first lecture of the year on the eve of Donald Trump’s inauguration as US President. The lecturer, Geoff Shepard, had been a junior lawyer attached to Richard Nixon’s White House staff in the early 1970s. As the Watergate trials unfolded he served as deputy to Nixon’s defence lawyer. His new book, The Real Watergate Scandal: The Secret Plot that Brought Nixon Down, chronicles a series of secret meetings held between judges and Watergate prosecutors and other interested parties. He suggested that these illegal meetings amounted to a criminal conspiracy between prosecutors and judges eager to oust an elected president. Mr Shepard drew many telling parallels between the personalities of Presidents Nixon and Trump.

One of our Benchers, Master Sally Smith, gave a popular and entertaining lecture about Edward Marshall Hall (1858 – 1927), the subject of her new book, Marshall Hall: A Law unto Himself published by Wildy, Simmonds & Hill, in May 2016. His extraordinary life revolved around his wives, his mistresses and the cases he fought in the romantic world of the Edwardian Bar. He was the most famous advocate of his day. The power of his personality and his extraordinary ability to sway juries may have saved more defendants from the hangman’s noose than any other barrister. The audience were gripped throughout and equally fascinated by Master Smith’s discovery of an unknown store of letters belonging to Marshall Hall’s best friend, Charles Gill. As well as documenting their close friendship, the letters contain many half-forgotten details about the professional lives of Edwardian advocates. On 12 June, Dr Jan Woudstra delivered a lecture entitled The Thames Embankment, London boulevards and the garden of the Inner Temple, Robert Marnock’s (1800 – 1889) visions for the greening of London. He discussed the contribution made by this great landscape gardener, to the formation of the current garden after the creation of the Victoria Embankment 1864 – 70. Marnock was one of the outstanding horticulturalists of the 19th century and he worked as curator to the Botanical Gardens in Regent’s Park. In reshaping the Inn’s garden, he extended

The Inner Temple Yearbook 2017–2018

The History Society

the space towards the river and arranged for the planting of a double line of plane trees on the Broad Walk. The lecture drew an enormous crowd to the Parliament Chamber. Afterwards, everyone was treated to a guided tour of the garden by the Inn’s renowned and wonderful gardener Andrea Brunsendorf. All the lectures this year have been extremely well attended and it is hoped that all our subsequent lectures will enjoy the same degree of popularity. For your diary: Nathalie Cohen will discuss the archaeological finds made along the Thames and in the environs of Inner and Middle Temple (29 January 2018); the Garter Principal King of Arms will discuss heraldry, Readers Shields and the work of the College of Arms (19 March 2018). Professor Alan Nelson of Berkeley University will discuss the extraordinary theatrical entertainments staged by the Inn during the sixteenth and seventeenth centuries in the Hilary Term of 2018. All lectures are open to the public. Entry £10. Free for students. Drinks are included before and after all lectures.

Celia Pilkington

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Celebrate the Life

The Inner Temple Yearbook 2017–2018

MASTER HIRST Chairman of the Bar Council known for his sang-froid and for being no fan of pop music, despite representing the Beatles

Jonathan Hirst was not a man to dwell on a setback. The former Chairman of the Bar enjoyed a distinguished career, but would inevitably lose the odd case. At such times, his natural optimism prevailed. “We gave them a bloody good fright,” he would say. “What’s more, we avoided indemnity costs.” For Hirst, the glass was always half-full. If the principal witness was found to be an inveterate liar and indemnity costs went against his client, Hirst still found a positive spin, telling colleagues: “The judge’s decision was quite right. He was a bloody crook and he was lucky to avoid being referred to the DPP.” Doubtless, Hirst’s legal genes contributed to his sang-froid. His father, Sir David Hirst, was a leading defamation and commercial barrister who became a Lord Justice of Appeal. His great-grandfather established a firm of solicitors in Norwich; his great-great uncle was a Liberal MP and Master of the Rolls during the First World War. Steeped in the law as he was, Hirst would emulate his father in becoming a popular figure at the Bar – and in acting for the Beatles. While Hirst Sr acted for Paul McCartney to dissolve the Beatles, and later for all of the Beatles

in a claim against their manager, Allen Klein, Jonathan was proud to follow in his footsteps and act for the band and Apple Corps in their dispute against EMI in the early 1990s. Like father, like son, too, in other ways. Jonathan was appointed Chairman of the Bar Council in 2000; his father served in the same role in 1978-79. Once, when Jonathan appeared before Mr Justice Jacob and began his submissions saying, “I have three points”, the judge interrupted him to observe: “Your father always used to say that. And he would always forget what the third point was.” It is possible that the story of Hirst’s ensuing performance is apocryphal; it is also possible, given his innate ebullience and good humour, that Hirst knew exactly what he was doing. He went on to make his first and second points, before saying: “And now for my third point. Er . . .”

“ For all that he had an infectious laugh and booming voice, Hirst was also a fine lawyer who married sound common sense with legal acumen.”

The Inner Temple Yearbook 2017–2018

Celebrate the Life

He was called to the Bar in 1975 and, after joining 1, Brick Court (now Brick Court Chambers), did not hang about. Having gravitated to commercial work, he became known for his incisive grasp of the issues and quick turnaround of papers.

So enamoured of country life was Hirst that he converted an outhouse into an office so that he could spend the Bar vacations in Norfolk. It is rumoured that he also once again echoed his father’s habits in preferring any cases heard on a Friday to wrap up by 2.30pm so that he could be on the afternoon train to Norfolk.

Before long, as well as rapidly building his own practice, he was working as a junior with two greats of the Bar: the late Robert Alexander QC, and Sir Sydney Kentridge QC. With Alexander, Hirst acted in the well-known case brought by the Australian media tycoon and entrepreneur Kerry Packer against the Test and County Cricket Board in 1977. With Kentridge, he acted in the Makedonia scuttling case in the early 1980s. Hirst went on to practise for 41 years, 26 of which were as a QC. In one of his more notable cases he acted for Coopers & Lybrand, the auditor of many of Robert Maxwell’s companies, after the media mogul’s death. Jonathan William Hirst was born in 1953 at St George’s Hospital, Hyde Park Corner, London, and brought up near Hampton Court before, at the age of eight, going to board at a preparatory school on the Wiltshire-Dorset border. The eldest of five siblings, he went to Eton where he enjoyed tennis and – despite the teasing of his brothers and sisters, who noted that an unusually large amount of water was displaced when he swam – became a keen swimmer.

From Eton, Hirst went to Trinity College, Cambridge to read law. It was while there that he met his wife, Fiona Tyser, a medical secretary at Addenbrooke’s Hospital, while out beagling one Saturday afternoon in his first year. They married in 1974 and had two children. The first, Thomas, died at birth; the second, Charles, is soon to take up a role with mhp, a London-based communications firm. Fiona and Charles survive him, as does his mother, Pamela. The Hirsts settled in Fulham, southwest London, but also loved Norfolk, where they bought a house on the edge of the market town of Aylsham. There he would spend most winter Saturdays shooting pheasant and partridge.

“ He was ever willing to serve the legal profession more widely too. As well as being Chairman of the Bar Council, he was Chairman of the Law Reform Committee, Treasurer of Inner Temple and Joint Head of Brick Court Chambers.” Although latterly he developed an extensive arbitration practice – chairing many tribunals and ranked in tier one for arbitration by the Legal 500 – Hirst was an advocate’s advocate. “The Bar is going to compete, and compete vigorously,” he declared, upon becoming Chairman of the Bar. He staunchly rejected calls for the fusion of barristers’ and solicitors’ professions, argued for the modernisation of the Bar and helped to pioneer the BarDirect scheme, enabling clients to circumvent solicitors and gain direct access to counsel. Hirst’s regular holiday destinations abroad were Venice, where he and Fiona honeymooned in 1974, and Barbados. Anthony Trollope was a favourite author; he also enjoyed historical biographies, detective stories and the music of Mozart, Bach and Handel. The Beatles were not the only pop musicians for whom he acted. Hirst helped Sting in his claim against Coutts Bank for paying out money without authority after his accountant was found to have stolen money from his personal account. Yet he remained, in many ways, his father’s son: fiercely capable, yet courteous; apparently old-fashioned, but with his finger on the pulse; and, resolutely and determinedly to the end, not one for the largely uncerebral delights of pop music. Jonathan Hirst, QC, barrister, was born on July 2, 1953. He died from cancer on July 10, 2017, aged 64 Courtesy of The Times

Treasury

The Inner Temple Yearbook 2017–2018

SHARING BEST PRACTICE

SOME FEATURES OF THE COMMERCIAL COURT IN ENGLAND By Master Moore-Bick

T The Rolls Building © Jonathan Goldberg / Alamy Stock Photo

On 6 September 2016, Master Moore-Bick was invited to share his observations on the successful running of a commercial court with the judiciary of Brunei Darussalam. The following is an abridged version of his lecture. The guiding purpose of any commercial court is to serve the needs of the business community. It must therefore be responsive to the needs of that community, which in most respects are no different from those of any other litigants: speed, fairness, efficiency, independent and well-qualified judges, and effective enforcement procedures. However, the demands of the business community are in some respects different, mainly due to the nature of the law which applies to their activities. In 1895, following a trial that was widely regarded by businessmen in the City of London as having been highly unsatisfactory, the Commercial List was established within the Queen’s Bench Division of the High Court. In 1970, the Commercial List became the Commercial Court. The judges nominated to sit in the Commercial Court have been men and women of the highest ability, both as lawyers and judges, and have commanded the respect of the commercial community in England and indeed worldwide. This is the first factor necessary for a successful commercial court: judges of high quality who understand the commercial world, including the customs and practices of specialised markets, and who are able to command the confidence and respect of the business community.

Able judges are not by themselves enough. If the court is to command the confidence of the business community it must ensure that its procedures enable it to deliver decisions of high quality, quickly and at reasonable cost. It is also important that its decisions can be enforced effectively. This requires procedures which are tailored to the requirements of commercial disputes. It also requires some control over which cases are accepted into the court. In 1998, the Rules of the Supreme Court were replaced by the Civil Procedure Rules. A question arose whether the special practices and procedures developed by the Commercial Court should be allowed to continue. We persuaded the Civil Procedure Rule Committee that they should, and as a result commercial proceedings are now specifically covered by Part 58 of the new Rules. The Civil Procedure Rules were adopted as a new procedural code. They were intended to be simpler than the Rules of the Supreme Court which they replaced. They were designed to make litigation more efficient by putting the court in control of the proceedings and reducing the opportunity for parties to drag their feet and delay a decision. Opinions differ about the extent to which they have been successful in meeting these objectives, but in the Commercial Court the introduction of the new rules has been used as a springboard for bringing about a radical change in the culture of litigation. Parties were expected to exercise sensible co-operation in preparing cases for trial and those who made unnecessary or unreasonable interlocutory applications found that orders for costs were made against them.

The Inner Temple Yearbook 2017–2018

Sharing Best Practice

The innovation which has had the most beneficial influence on the procedure of the Commercial Court has been the Case Management Conference (CMC). The overriding purpose of the CMC is to enable the judge who hears it to understand the nature of the case, identify issues, and having done so, to give appropriate directions for trial. In the Commercial Court, the claimant must apply to fix a date for the CMC on the first available date six weeks after all defendants who intend to serve a defence have done so.

availability. This system is popular with litigants because it means that they can be confident that the counsel who have had the conduct of the preparation will be available to appear at the trial.

The judge who is to hear the CMC will normally know nothing about the case before the papers are sent to him for preparatory reading. To enable the judge to understand what the case is about and what issues arise, the solicitors and counsel for each party are required to draft an agreed case memorandum describing the case in neutral terms and to agree a list of the key issues. These are intended to be used as case management tools and play no part in the trial. They should not be regarded as contentious documents, but regrettably parties spend too much time and money haggling over the details. They should be firmly discouraged from doing so. The CMC is generally conducted as an oral hearing before one of the judges of the court. It is an invaluable opportunity for the judge to probe the parties’ positions, to ask questions about the case and how it is to be prepared, and to gain an understanding of the issues. It must be attended by a representative of the solicitors instructed by each party and also by their counsel, because it is important that those present have authority to take decisions on any matters that may arise.

One procedural innovation introduced by the Commercial Court, which is not to be found in the Civil Procedure Rules (CPR), is Progress Monitoring. When the judge hearing the CMC gives directions for trial, he will also set what is known as a ‘Progress Monitoring Date’. Three days before the Progress Monitoring Date each party must file with the court and serve on the other party a Progress Monitoring Information Sheet designed to inform the court whether it has complied with the pre-trial timetable so far, and if not, the respects in which it has not done so; and whether it will be ready for a trial on the date fixed by the court, and if not, why not. An experienced judge will set the Progress Monitoring Date a reasonable time after the date by which the last step in the preparations, or at any rate most of the essential steps, are due to be completed and well in advance of the date fixed for trial. If, when the Progress Monitoring Sheets are filed, the court can see that one or other party has fallen badly behind the timetable, it can make further orders of its own motion to get the case back on track and, if necessary, reconvene the CMC to hear the parties’ proposals and make adjustments to the timetable. Fixing the trial date at or very soon after the CMC has proved to be a very effective way of ensuring that the court operates efficiently and in the interests of the parties. Typically, the judge hearing the CMC will discuss with the parties’ representatives, how long they need to complete preparations for trial and how long the trial itself is likely to last. Allowing for the usual interruptions, for example vacations, a case which can be tried in less than two weeks can usually be ready for trial within about a year after the claim form has been issued. Before he hears the CMC, the judge will have formed a provisional view about how long the trial is likely to last and will have discussed with the Listing Office when a case of that length can be put into the list for trial. At the CMC, he will discuss the estimate with the parties and will direct that they attend the Listing Office within (say) the next two weeks to fix a date for trial. Counsel’s clerks attend the Listing Office which fixes a date that, as far as possible, is consistent with counsel’s 28

Fixing a trial date at or immediately after the CMC benefits the court in two ways. First, it enables the court to plan ahead and ensure that trials can be accommodated. Secondly, fixing the trial date early on enables the court to keep control of the progress of the proceedings in a way that would not otherwise be possible. Once a trial date has been fixed, parties are very reluctant to lose it. The pressure on the lists of our Commercial Court means that if it becomes necessary to stand out a trial several months after the date has been fixed, it is likely that a new date will not be available for some months. If parties get behind in their preparations, the court is in a strong position to impose orders which require urgent action to enable the case to be ready for trial on the fixed date. This has done a great deal to ensure that the court and the parties can conduct litigation in an efficient and cost-effective manner. It goes without saying that the court must play its part by maintaining the date for trial once it has been fixed, unless to do so would cause serious injustice.

“The introduction of the CMC has probably been the most significant development in our procedure in the last 20 years.” It puts the court in control of the proceedings, thereby enabling it to ensure that they are conducted efficiently and in a costeffective way, without undue delay and without the disruption and expense caused by interlocutory applications, which have to a significant extent disappeared. One other important matter that is almost invariably raised at the CMC is mediation. Businessmen are natural negotiators, but sometimes personalities or an exaggerated view of the strength of the case make it difficult for them to settle the dispute by themselves. They need the help of a neutral third party in the form of a mediator. If it is successful, the parties resolve their dispute by agreement on terms which they both accept represent a fair reflection of their cases or are otherwise in their longer-term interests. In some cases, the key to reaching agreement is an opportunity to do further business together. The experience of the Commercial Court over many years has been that a high proportion of claims settle and that more than half of those given a fixed date for trial do so. Whether that owes something to the practice of routinely making mediation orders is hard to say, but the court remains a staunch believer in the benefits of mediation and it will continue to make mediation orders for the foreseeable future. One of the respects in which our procedure has been transformed over the past 30 years relates to witness evidence. The practice of allowing lay witnesses to give their evidence-inchief by formally adopting a written statement has its origins in arbitration proceedings. Arbitration has proved a useful testbed for innovations in procedure, and since those who practise in the Commercial Court also frequently appear in arbitrations, it is not surprising that after a time the Commercial Court began informally to adopt the same practice, which it was thought would shorten trials and reduce costs. The practice has now been formally adopted under the Civil Procedure Rules in civil proceedings generally. To some extent the benefits which it was hoped would flow from this development have been obtained. Trials do proceed more quickly, because witnesses do not take time giving their

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evidence-in-chief orally. However, the use of witness statements has had its drawbacks, the main one being that the judge does not hear the witness’s evidence in his own words. Unfortunately, statements, although based on instructions taken from the witness, are drafted by the parties’ lawyers, who are alive to all the nuances of the case. As a result, many witness statements are excessively long and argumentative, whereas they should be succinct and confined to the facts. They have become very expensive to prepare and are less helpful to the court than they should be. Judges have been lamenting these developments for many years, but have so far been unable to find a cure. We have also made some useful strides in our procedure relating to expert witnesses. At the CMC the judge will consider, in conjunction with the parties, whether expert evidence needs to be called, and if so, in what discipline. If the judge is satisfied that the court is likely to benefit from the assistance of expert witnesses, he will usually give both parties permission to instruct one person in each discipline to be covered. The Civil Procedure Rules allow the court to appoint a single joint expert, but, although this has been a valuable innovation in smaller civil cases, it has been found that this does not work as well for commercial litigation. The judge will normally make an order for the exchange of experts’ reports and after that for the experts to meet to discuss any points on which they differ. Following the meeting they will prepare a joint memorandum identifying the points on which they agree and disagree and, in so far as they disagree, explaining the nature of their disagreement. This process helps the judge at trial to identify the points in dispute and ensure that the expert evidence is focused on them. At the CMC, the judge will consider whether it is necessary to hold a formal Pre-trial Review a month or six weeks before the trial. In many cases, however, that is not considered necessary and so, if all goes according to plan, the final stage in preparation for trial is the filing by each party of a Pre-trial Checklist. This takes place about three weeks before the date fixed for trial. These aspects of our procedure all make a valuable contribution to the efficient working of the court. The real point to emphasise is that the court is in control of the proceedings from beginning to end and that, despite the adversarial nature of the proceedings, the legal representatives are expected to co-operate with each other and the court to ensure that the process of preparation and trial is conducted as efficiently and cost-effectively as possible. If there is any sign that things are going wrong, the court staff will draw it to the attention of the Judge in Charge, who can give directions necessary to bring the proceedings back on track and ensure that the trial date is not threatened. When the case finally gets to trial the practice in the Commercial Court is very similar to that in our other civil courts, many of the court’s innovations having been adopted more widely. One aspect of our current practice, which did not originate in the Commercial Court, but was taken up by the practitioners there enthusiastically, is the requirement to file skeleton arguments in advance of the hearing. The use of skeleton arguments was pioneered by the Court of Appeal in the 1990s. The intention was to provide the judge with a succinct outline of the arguments each party intended to advance and the reasons for them. That is why they were called ‘skeleton’ arguments and when well prepared they are very useful. Unfortunately, over the course of time there has been a tendency for skeleton arguments to become longer and longer.

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“ The Court of Appeal imposed certain limits on the length of skeleton arguments, and have even prescribed a minimum font size and line spacing. However, we forgot about footnotes, with predictable results.” One reason for the introduction of skeleton arguments was to alleviate the need for the judge to make a detailed note of the argument. In a trial of any length taking a manuscript note can be very laborious. Some years ago, parties in commercial cases began to use real-time computerised transcripts, which in my view are excellent because they can be searched electronically. As a trial judge, I found a transcript of the evidence and argument an enormous help. You have the benefit of a precise record of what was said and the ability to find the passage you really need to look at. The commercial courts exist to serve the needs of the commercial community, but those needs are constantly developing and changing. Many years ago, we set up a Commercial Court Users’ Committee to provide a forum for discussion between the judges, solicitors and counsel who practise in the court, and representatives of the businessmen who are the principal users of the court. They include representatives of insurers, commodity traders, bankers, the shipping industry and so on. The Committee is chaired by the Judge in Charge and meets three times a year. It has provided a useful source of ideas for improving the court’s procedures, as well as a sensitive early warning system when problems arise. For example, if members of a particular market or industry are dissatisfied with the speed at which the court is dealing with a particular problem, the matter can be brought to the attention of the judges at a meeting of the committee and a solution found. The very existence of the committee is a practical demonstration of the court’s determination to provide an efficient service to the business community. Finally, the appellate system has an important part to play in supporting the Commercial Court. If the purpose of a commercial court is to provide an effective service to the commercial community by judges who are experienced in the relevant areas of the law, it is important that any appeals also be heard with as little delay as possible by a court which includes one or more judges who have similar experience of commercial law and practice. It is currently the practice in England for at least one, and sometimes two, appellate judges who were formerly judges of the Commercial Court to be included in any constitution that hears an appeal from that court. This gives the commercial community confidence that the system as a whole is capable of understanding and dealing fairly with their particular disputes. And in commercial life, confidence is everything. That was a whirlwind tour of the current practice of the Commercial Court in London. I firmly believe we can learn from each other and so place ourselves in the best position to adopt practices and procedures which suit the needs of the business community we seek to serve. That requires dialogue, discussion and an exchange of ideas. I hope that there may be an opportunity for you to tell me about how you do things here, so that I can take home with me some ideas to improve the working of our own Commercial Court.

The Rt Hon Sir Martin Moore-Bick Former Vice President of the Civil Division of the Court of Appeal 29

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Marshall Hall's Legacy

MARSHALL HALL’S LEGACY By Master Smith

Master Smith writes about the great advocate’s kindness and his prolific collection of snuff boxes and artefacts, the proceeds of which funded the Marshall Hall Trust. Strolling down Middle Temple Lane at the very height of his wealth and fame, Sir Edward Marshall Hall KC spotted a young barrister whom he dimly recalled. He had promised him a junior brief that had never materialised. Now, with the noisy expansive impulsiveness for which he had become famous, he leapt across the narrow street, grasped the young man’s hand warmly and pressed something into it. “My dear boy I couldn’t get you that brief I promised you. Have this instead.” Without waiting for a response, he plunged into the doorway of his chambers in 3 Temple Gardens and the dazed young man, uncurling his fingers found that Marshall had thrust into his palm an exquisite little 18th century gold and enamelled snuff box.

Ever since, metaphorically speaking, Marshall Hall has been thrusting gold snuff boxes into the hands of needy members of the Inner Temple through the auspices of the Marshall Hall Trust. It is now 90 years since Marshall’s death in 1927 and since 1968 when the Trust, under the terms of Marshall Hall’s will came into effect, it has done the wonderful work described in Master Shields’ article at page 48. The vast bulk of the wealth that formed the Trust came not from Marshall’s professional practice at the Bar but from his hobby as a collector of jewellery and antiques and as a result the charm of the Trust lies in the intimacy between the man, the money and the ultimate beneficiaries. Unlike most of the great philanthropists Marshall had no bankers nor lawyers nor agents nor middlemen acting on his behalf; no dealers negotiated for him nor experts advised him. All his life he just bought things he liked and swapped them if he saw something he liked more, and gave them away if he felt like it. He professed to no great expertise, although of course during his life he developed it, nor did he have plans for investment. He bought to satisfy some need for beauty. An early biographer said; “His professional life brought him into contact with squalor violence and tragedy of every kind. Where another man might have sought solace in books, domesticity or drink, Marshall found it in the contemplation of precious and beautiful objects.” He had a wonderful early training ground in Brighton. As a small boy, the Brighton Lanes held unending fascination. In the jewellery and junk shops with their glittering windows and murky interiors lay his equivalent of the woods of the country child. An explorer in a strange world, he approached the counters, penetrated the back rooms, handled strange and fascinating objects and wove stories around them. Inscrutable dealers, charmed by an eager, curious little boy, unbent and told him their secrets, showed him their treasures, gave him odds and ends, sold him things for a few pence; and there it began.

By the time he was a seventeen-year-old schoolboy at Rugby, Marshall was a dealer, holding auctions in his school study at which he sold, frequently with a ruthless eye for profit, the results of the previous school holiday discoveries in the Brighton Lanes. None of his school friends were a match for him. One, relinquishing to Marshall a prized stamp album when the temptation of an offer of £5 was too great to resist, discovered that Marshall had promptly sold it on to a London dealer for £50. When he was an undergraduate at Cambridge the objects became more sophisticated; jewellery, in particular, he loved with the same passion and acquisitive instinct of a magpie. There are many stories of his extraordinary eye which though it may have owed something to experience, seemed, like his advocacy, to have about it an almost mystical quality. Walking as young man down a Paris street with a friend he paused at a shop window in the Rue de la Paix; there, set out in the shape of a star on a piece of velvet were hundreds of single diamonds priced at 100 francs each. Marshall went into the shop and selected eight of them. “No Monsieur” said the dealer, “I will not sell you one. You know too much.” Marshall had picked out those worth far more than 100 francs; the remainder were worth far less. All his roller coaster life was reflected in his collections. By the time he settled into domesticity with his second wife and small daughter in the staffed and stuccoed grandeur of Cambridge Terrace (now Sussex Gardens), he had a vast collection of museum quality pictures and furniture. The cluttered Victorian fashion suited his style; the walls were literally covered, floor to ceiling, with pictures, engravings, enamels and ivory reliefs; the rooms were littered with little tables and display cabinets filled with miniatures, watches, patch and snuff boxes, needle cases and jewellery. Around this treasure trove Marshall, I suspect with a twinkle in his eye, wove a mesh of anecdote and reminiscence, provenances romanticised, objects invested with impossibly exotic histories; the watch had belonged to Robespierre; the watercolour he knew in his bones was a Turner although there was no signature on it; the silver dagger came out of a harem; that old box had belonged to General Gordon. He kept his cigars in this last item; “Have a cigar dear boy”, he would say; or a cigarette from a Georgian tea caddy; or a pinch of snuff from a gold snuff box engraved ‘Good at a Pinch’. Then disaster struck his reputation and practice when he fell out with one too many of the judiciary and a newspaper proprietor all at the same time. The ensuing headlines, (“English Bar’s Honour”, “Disgraceful Conduct”) resulted in his income halving and then dwindling away. The dealing became a lifeline. “Having had nothing to do in the last ten days I have hunted up a few blue plates” he wrote to a friend; “I got twenty altogether at a cost of five shillings each. Times are bad so I must stick my cabs on. Suppose we say seven pounds for the lot.”

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The Inner Temple Yearbook 2017–2018

Images courtesy of Orion Publishers. All attempts at tracing the copyright holder of the images from Biography of Marshall Hall by Gilbert Thomas / Nina Warner Hooke were unsuccessful.

But ultimately only one course was open to him; the wonderful collections in Cambridge Terrace all went under the hammer at Christies. There were 128 lots; early 18th century lemon strainers, muffineers, porringers, Queen Anne mugs and coffee pots, cutlery and pin cushions and, most painful of all for Marshall, his collection of 38 early English spoons. The resulting 4,000£ kept the family afloat. “Snuff boxes are off” he wrote with uncharacteristic gloom. But they were not off for long. His work picked up again when he represented Robert Wood, a young artist charged with the horrible Camden Town Murder. Wood was the first man on a capital charge to give evidence on his own behalf and to be acquitted. The result of the trial catapulted Marshall back into favour and fame which never again deserted him and the collecting began all over again. He never went anywhere without popping into an antique shop on the way; there was always a little something new in his pocket and astonished ushers at the Old Bailey became accustomed to Marshall dashing in for a trial clutching a bit of silver they were asked to mind while he was in court. He always loved the little things the best; he liked to stroke and arrange them; he could not resist them. The collections outgrew his houses; his last country house was bought to accommodate the vast overflow from his London house. Hetty, his wife, worried constantly about burglars but Marshall laughed it all off and went on buying. Amidst the vast collection of Chinese porcelain and 18th century silver were these little things. Pearls and pendants, cuff links and earrings, salt cellars and scent bottles, pencil cases and of course, always, the snuff boxes. “I believe that collecting is innate” he wrote in an article about his home, “and can be eradicated only by---death”. When he died in 1927, his will provided for the sale of the collections which eventually funded the Marshall Hall Trust. In a blaze of publicity among crowds of onlookers the entire collection was sold by Christies. The catalogues bring home the amazing scale of the collection. The sales of the Chinese porcelain, the Old English silver and the snuff boxes and bijouteries each took a day. The ensuing days were taken up with pictures and engravings.

“ It was said to be one of the rarest collections ever amassed by the taste of a man of moderate means.”

The dealers, many of whom had become close friends of Marshall, had a field day; all the big London names, Bluetts, Malletts, Tessiers, Welbys, Finks, Ackermans snapped up the prize collection. The whole event took an astonishing seven days and the proceeds benefit the Inn to this day. Marshall Hall loved the Inner Temple and loved its young in particular. Within his own chambers he was assiduous in encouraging the juniors; “For the thirty-nine years I have been in these chambers” he wrote at the end of his life, “we have had the most delightful lot of young fellows and now that I am growing old I esteem it a great compliment that the young men still want to come”. In the wider world of the Bar the stories are many of his kindness to anyone he thought needed a helping hand. “No brief?” He would cry to a struggling colleague; “I’ll find you a brief”, and he would tow them into the chambers of a friend. “Here is a man who wants a brief!”; and the brief would miraculously appear. On occasions, blushing young members of the Bar led by Marshall would find his noisy efforts to give them all the credit positively embarrassing. Like a proud father Marshall extolled their virtues to solicitors in conference and to judges in open court. But many in later life recalled with gratitude the ‘start’ he gave them. He was always hugely generous; sitting as a Recorder of Guildford he never forgot the need that lay behind many of the crimes that he tried. “Dear Madam” he wrote to the mother of a girl whose husband he had just sent to prison; “I am anxious to do something for your daughter (upon whose husband) I had no alternative but to pass a sentence of imprisonment. I understand your daughter is wishing to get back into service as housemaid and naturally she would like to be somewhere in the neighbourhood so she could see her little child. I have a small cottage about four miles from Chiddingford and although I have not mentioned the matter to my wife I will if you like see if I can do anything.” Patronising and paternalistic it all may seem to the modern eye but the past was a place in which they did things differently. What does not change is the kindness. Marshall Hall’s kindness, through the work of the Trust still helps those in need in the community he loved. Sally Smith QC Marshall Hall A Law unto Himself by Sally Smith, published by Wildy, Simmonds & Hill Publishing and available from the Inn’s Store

The Inner Temple Yearbook 2017–2018

Joshua Blew

JOSHUA BLEW Chief Butler and Librarian, 1713–1765 From the Catalogue of Manuscripts in the Library of the Honourable Society of the Inner Temple, James Conway Davies has charted the extraordinary career of a most unusual butler, Joshua Blew.

Coloured aquatint of the Hall, 1826

Top: Inner Temple Hall from the Garden. Above: Inner Temple after the fire of 1737 (Tate)

A “ Mr Blew was evidently an unusual Butler … If I may play the part of Posterity I indeed commend his sedulity.” Sir Frank MacKinnon

Joshua Blew must have been one of the most extraordinary servants that any English Institution ever had. The length of his service is overshadowed by the variety of his achievements, the multiplicity of his duties and the surviving remains of his work. His duties can most usefully be considered under the two following main headings: firstly, his services to the Library; and secondly his services as the general adviser and researcher of the Bench in all that pertained to the detailed administration and the privileges and precedence of the House. First as to his services to the Library. When he succeeded Samuel Carter as Librarian, the Petyt Manuscripts and printed books had only recently been transferred to the new Library which had been built to contain them. Samuel Carter had been Librarian for four years and was given charge of the Library in 1710. His first task was to organise the new Library, and in this work, he appears to have been very successful. His initial salary was £10 but in less than ten years it had been increased to £15 and the Bench, clearly pleased with his service, were already providing him with rewards which appear in the account books: £2 for writing the buttery book and the weekly rolls of commons in addition to his role as a puisne butler. In 1727, his salary was increased to £20 and the following year he was given the chamber of the late Chief Butler at 8 Fig Tree Court. As Librarian, he was directly responsible to the Treasurer. The Librarian was responsible for the purchase of books 32

and for their binding and even for the publication of some of the manuscripts. His choices of books included Le Grand Coutumier de Normandie and the Religious Ceremonies of All Nations. Four catalogues survive in his hand dating from 1710 to 1733. On 29 June 1759, the following order was made: “Mr Blew with such assistance as he shall think necessary, before the next term, to clean the books and shelves in the Library and make a general catalogue out of the three Catalogues now in the Library, under the direction of the Treasurer [Joseph Brand] and Mr [Thomas] Tower”. The cleaning was doubtless done but there is no trace of such a catalogue. It is not surprising that, when he retired from the Librarianship in 1763, the Bench Table ordered that “Mr Blew be allowed £20 a year during his lifetime in consideration of his long and faithful service”. It was not as Librarian, however, that the Society prized his services most. A multiplicity of duties, extending far beyond any which pertained to any of the offices he held, were placed upon him, all of which seem to have won him the complete confidence of the Bench. A list of the papers of Nicholas Courtney (who was Treasurer in 1694), which he drew up in 1718, had considerable value, particularly upon the vexed question of precedency. On 18 November 1726, he was ordered “to make an index of all the Acts of Parliament and Orders of this house from the year 1600 to this day”. On 19 June 1740, it was ordered that “an index to be made by Mr Blew of all the Orders of this House under the proper heads”. So highly valued was this compilation that, on 5 May 1741, it was ordered that “the sum of 25 guineas be paid to Mr Blew, Library Keeper, for his extraordinary services, collecting together and making an extract of the Rules and Orders of this Society and in reducing them to their proper heads for the use of this House, and the same Extract, when bound, to be placed in one of the cases in the Library to which every Master of the Bench have a key, but no copy of the Extract be taken, nor the said Extract itself carried from the Library, or to this Table, or to the Parliament Chamber without special order of the Table

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and instructions given to managers concerning the precedency of this Society to be added to the said Extract”. The payment ordered was duly made and all these compilations still survive. Other duties imposed upon him were sometimes trivial but at other times important and onerous. Thus, on 14 June 1729, he was ordered to “draw out the duties of the Steward as settled by the committee and lay it before the Table”. This document was made an Order of the Table on 29 January 1730 and confirmed by Parliament the following 6 February. The fourth of the duties was the at the Steward should “daily take an account from the butlers what bread and beer is spent, and the same account for candles, coals etc, and to buy coals and candles at the best hand, and to see to the disposal of them, and keep an account thereof, and deliver Mr Blew from time to time a particular of the quantity and prices, with the days and tradesmen’s names”. By Act of Parliament, 6 February 1730, the day the above order was confirmed, Joshua Blew was to be paid “the sum of £20 per annum for his care in inspecting the weight and quantity of provisions and examining the tradesmen’s bills of provisions for this Society, pursuant to the agreement of the Committee of 2nd May 1729, as it has been since done”. In 1747, the payment of this salary was determined. In 1730, with a Bencher and the Chief Butler, Blew was “to overlook the workmen and see how many are employed and for how many days in the setting of the new gate fronting the Hall stairs”; in 1737, with the Chief Butler, he was to view a building then being erected and report to the Table how far other chambers would be affected by it; in 1740, to take an inventory of the effects of a deceased member of the Inn; in 1750, he was to attend Court with a lease on the trial of a cause, at the expense of the parties; in 1759, rings were left with him to be distributed to Masters of the Bench; in 1758, he reaped the reward of the assignment to chambers which had been granted to him gratis in 1753 “in consideration of his diligent and faithful services to this Society for upwards of forty years”. With all the many reports, drafts notes and annotations made by him over the many years, only one letter written by him has been seen and that to an unknown correspondent, though it was certainly written to a member of the Inn, probably to one who had been rendered homeless by the fire of 1737. This letter of 10 January 1738 informs the recipient of the dispatch of some oysters, according to directions, and answers questions addressed by the work done on the Temple Church and the rebuilding of the chambers burnt in the fire. It duly reported “the kitchin and offices being already built and finished by the house workmen in a very handsome and magnificent manner”. In reply to personal inquiries Blew reported himself to be good health, but his wife had been ill and under Dr Douglas for a long time as a result of the great fright she had at the time of the fire, which was a great trouble to him, as well as the loss of all his goods and “valuable collection of curiosities”. He had varied antiquarian interests mainly settled on the Inner Temple and its properties. The original of this letter is to be found in the collection of the records of the Inner Temple where also have been placed scores of compilations, memoranda and drafts by him on the administration of the Inn. Of these the following are representative: there is a memorandum on Acts of Parliament relating to the Temple Church, 1631 to 1716; one on the Call of Serjeants, twelve in number of which seven were from the Inner Temple, on 30 April 1724, when the procession met in the Inner Temple Hall. He contributes an account on the Call of Serjeants, 4 June 1736, which raised the vexed question of the precedency of the Inner Temple on such occasions. There is a memorandum on exercises to be performed by the Students before they are called to the Bar, 11 March 1738; a note of 1741 on the “inscription round the great bell [erected 1686] hanging in the round tower of the Temple Church”; his draft 1744 on the office

The Inner Temple Yearbook 2017–2018

of Sub-Treasurer, 1682 -1739; an account of the “ancient doors and windows discovered on scraping off the plaster on the outside of the north wall of the old rooms formerly belonging to the house of the Knights Templars now called the butteries , fronting to the now cloisters”, with sketch, 8 March 1756. He wrote a note of evidences relating to the soil, buildings and boundaries of the Inner Temple from 6 James I, and a lengthy compilation on the rules, customs and administration of the Inner Temple, 1660 – 1723. Another compilation of his was the Table of General Heads contained in his Abstract under 20 sections. The Chamber Books survive for almost the whole of the time he was employed by the Inn, 1709–62, in fifteen volumes. Joshua Blew’s executor was Andrew Coltee Ducarel, a member of the Inn, admitted in 1735, and who had a chamber there from that year to 1756. Ducarel was a distinguished civilian and antiquary, a Doctor of Civil Law of Oxford in 1742, as Advocate of Doctors’ Commons in 1743, a Fellow of the Royal Society and the Society of Antiquaries, and from 1757 Keeper of the Library at Lambeth, after holding many other posts under the Archbishop of Canterbury. He was a prolific author and an archivist and although many years younger than Blew, the two would have had many interests and pursuits in common. The process of proving Joshua Blew’s will provides a number of very interesting details. He had the large sum of £202-1-0 in his chambers. The remainder of term in his chambers was sold for £143-10-. His household goods were sold by public auction for £162-10-5. There was owing to his estate £7-15-2 for board wages due to him as Butler and £5 as Librarian. He had various bonds due to him, one for as much as £105 and another from carpenters of Whitefriars of £21 and interest. The latter he had apparently given shortly before his death to Sarah Fulford, his servant. He owned £2,000 old South Sea Annuities on which one year’s dividend of £60 was due. His gold striking watch and gold chain, hook and seal he left to his niece, Hannah Blew. The same day the executor’s account was sworn. Joshua Blew’s assets, apart from the South Sea Annuities, totalled £696-97. Among the debts due from his estate were £19-18-3 to the undertaker, £3-2-0 to an apothecary for medicines, £12-12-0 to a jeweller for rings for distribution, £1-19-0 to a mason for inscribing his name on his tombstone. He owed the Society of the Inner Temple £7-6-6 and the Society of Antiquaries £2-2-0 for two years’; and his servant £12-4-4 for wages. He bequeathed his servant £5-5-0 for mourning and a legacy of £10. There was a legacy of £21 to his executor and an annuity of £20 to his nephew Henry Blew, or £500 of South Sea Stock in satisfaction, together with one half year’s payment of £10. The residue was equally divided between William Blew and Hannah Blew, obviously a nephew and niece, and Eleanor Moxham, wife of Thomas Moxham, probably another niece, each to receive £156-10-8. The remainder of the South Sea Annuities was also divided equally between the same three, £500 each. There was no bequest of his curiosities. He had probably distributed these before his death. There is no mention of the Inner Temple except of the sums owing on both sides. His legacy to the society had been paid during his lifetime in devoted, painstaking and valuable services rendered. His name or initials appear in many of the manuscripts and in more of the records. His research for the Inn was thorough and accurate. His comments on manuscripts were shrewd and generally well informed. He was not too proud of his knowledge to consult the experts. It was not many Butlers, even Chief Butlers, whoever became Fellows of the Society of Antiquarians. When he was buried in the Round of the Temple Church on 28 January 1765, he had served his Inn for nearly 56 years and was probably an octogenarian. James Conway Davies (1891–1971) Historian and palaeographer 33

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Master Goff

MASTER GOFF An abridged version of the address given by Master Tomlinson at the Memorial Service for Master Goff in the Temple Church on 6 February 2017

About 20 years ago, when Robert was at the height of his powers, he remarked at a function at the Inner Temple that had it not been for, as he put it, “writing that book”, he would not have achieved the position he had. Robert is of course best known across the common law world for his ground-breaking book. So how appropriate it is that we should be gathered here, in the mother church of the common law, to remember one of its greatest servants, one of its greatest architects. At the time, twenty years ago, the thing that most struck me about Robert’s remark was that he obviously believed that had he not written the book, he would never have become a Law Lord. Looking back on Robert’s remark now, two things strike me about it. The first is that it exemplifies Robert’s completely unaffected modesty. The second, is that Robert may very well have been right, as usually he was.

Robert had certainly not planned the path which led him to legal authorship. Due to be demobilised in December 1947 after 3 years’ service in the Scots Guards, he was told that he could not start at New College until October 1948; that he would only be admitted to the two year ‘shortened Schools’ course for ex-servicemen; and that he could read Greats, Law or History. Robert thought that History in two years would be no fun but that possibly two years of Law would be enough. He achieved a quite outstanding First, being awarded alpha plus in every paper. Relaxing in Scotland later that summer at his mother’s family home, he received a call from the Rector of Lincoln College, who asked him to come to see him. When Robert arrived at Lincoln for the meeting, to his utter astonishment he was offered a fellowship. To the equal astonishment of the Rector, who plainly thought that something akin to the Holy Grail had been offered, Robert asked for half an hour to consider the proposal which, ultimately, he accepted on condition that he could first do the Bar exams and be called to the Bar. And so it was that in October 1952 Robert began to teach at Lincoln. One of his first pupils there was Swinton Thomas, whose life we remembered and celebrated here only two weeks ago. Swinton became a great friend, and years later the tables were turned. On his appointment to the Bench, Robert was characteristically diffident about his ability to conduct criminal trials in the Crown Court. So he asked Swinton for advice and instruction, and whenever they could both manage it Robert would make his way round to Sheffield Terrace, Archbold in hand, for an evening tutorial. In addition to teaching at Lincoln, as a University Lecturer Robert was required to lecture on any aspect of the law that interested him. Casting around one day for inspiration at the end of Anson’s Law of Contract, he found a strange subject called ‘quasi-contract’. Intrigued, Robert thought that this area needed attention and perhaps a course of lectures could be built around it.

Master Goff

Meanwhile Robert had met Sarah in September 1952. They were married in July 1953 and, by courtesy of their landlord Magdalen, found an attic in which to live, on The High opposite the Eastgate Hotel and the Examination Schools. Unhappily this attic was infested by mice. You may wonder what this has to do with the law of restitution. The answer is that a cat was required, and as good fortune would have it the law tutor at Brasenose, Ronnie Maudsley, had a Siamese cat which had just produced a litter of kittens. One of them, Tobermory as he became, became also a Goff, and it was in discussions over this cat’s future that Robert and Ronnie discovered that they had a shared interest in quasi-contract. They put together a term of seminars on the subject. It was out of these seminars that the idea developed in Robert’s mind that there was sufficient material for a book. Robert joined the chambers of Ashton Roskill, now known as 7 King’s Bench Walk, where his pupil master was Basil Eckersley, a renowned shipping lawyer from whom Robert learned the art of meticulous draftsmanship. His early years at the Commercial Bar were fairly lean, and so Robert worked on the book in the Inner Temple Library. It was when he became more successful that he realised that, if the project was to be brought to fruition, he needed a collaborator, and there began that enormously fruitful partnership with Gareth Jones, producing not just the first edition of Goff & Jones in 1966 but also a life-long friendship. The book received a highly favourable review in the Law Quarterly Review from no less than Lord Denning, whether in spite of, or because of, Lord Diplock’s published view that restitution was no more than well-meaning sloppiness of thought, we shall never know. Lord Diplock, I am afraid, remained unrepentant – as late as 1978 he declared that, “There is no general doctrine of unjust enrichment recognised in English law”. Sadly Robert did not live quite long enough to see his work emerge in its recent 9th edition and under its new title The Law of Unjust Enrichment. Robert fashioned that law not just by his academic writing but also through a number of seminal judicial decisions. And not just for those decisions, he will be remembered as a truly great judge, one of the outstanding judicial figures of the second half of the 20th century.

Celebrate the Life

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To many of us, however, he will be remembered not so much for his judicial achievements, towering though they were, but rather for the way in which he went about his judicial work. His judicial work was marked not only by his great modesty but also by his great and unfailing courtesy, a courtesy which he extended to all. Over his 12 years in the House of Lords, the last two as Senior Law Lord, Robert completely transformed the nature and atmosphere of the Appellate Committee, which had not always before his arrival been the happiest tribunal before which to appear.

Much later, Robert, by now a Law Lord, was asked by the Inner Temple Treasurer of the day to chair an appeal to boost the Inn’s Scholarship Fund. In a time of economic stringency, he devised the Pegasus Scholarship Scheme, to provide opportunities for young English barristers to obtain work experience abroad, with a reciprocal opportunity for young overseas lawyers to study and work here. He put together a committee of Benchers which included some with an ability to open doors inaccessible to mere lawyers – for example James Callaghan, an Honorary Bencher, who brought the Cambridge Commonwealth Trust on side.

Robert was at first rather disappointed by his move to the House of Lords. He had spent only four years in the Court of Appeal and he missed its larger collegiality; he missed the opportunity to have lunch with his friends and colleagues in the Inner Temple, and he missed his clerk of 11 years, Neville Hindsley. Robert was not altogether happy about his new working conditions. Early on he had occasion to write a paper for the House of Lords authorities, arguing the case for the provision of a proper working library for the Law Lords.

Robert’s masterstroke, however, was to overcome his natural diffidence to entertain Lord King, then Chairman of British Airways, to lunch at the Savoy Grill. Evidently the meal was a success, because British Airways thereafter provided generous sponsorship by way of free flights for the scholars. The Scheme survives as a valuable and lasting legacy, not just to Robert’s interest in students, but also to his belief that the Inns of Court should work more closely together. It has for many years been a collaborative venture between all four Inns.

The lack of this facility was reflected in certain judicial attitudes. Quite early on in his time in the Lords Robert was gently admonished by a senior colleague for producing a draft speech which contained “too much citation of authority”. But there was a more serious criticism and a more serious transgression. Robert had unwittingly broken the apparent rule that under no circumstances was any reference to be made to the work of the Law Commission. All this was of course anathema to Robert, who only three years before in his Maccabean Lecture had stressed the complementary roles of judge and jurist in the search for principle which together they shared. No judge has done more than Robert to ensure that the views of legal academic commentators now regularly inform the decisionmaking in our higher courts. Memorably, in his speech in The Spiliada in 1987, he exhorted his brethren “jurists are pilgrims with us on the endless road to unattainable perfection; and we have it on the excellent authority of Geoffrey Chaucer that conversations among pilgrims can be most rewarding”.

When he went to the Court of Appeal in 1982 Robert began to accept invitations to lecture all over the world. He undertook two lecture tours to India, each consisting of five different lectures, and went to many parts of the Commonwealth and to the USA and also to the Middle and Far East. He also served as Chairman of the Council of Legal Education, overseeing the teaching and examination of the Bar Final.

And in his Maccabean Lecture Robert warned also against the danger of excessive judicial self-confidence. “It must never be forgotten”, he said, “not only that all law is in a continuous state of development, but also that too strong a conviction of the correctness of one’s own analysis may blind one to its imperfections. Humility is perhaps too much to ask of judges; but a reasonable degree of modesty, or at least of diffidence, should be part of the judicial job specification.” But what of Robert the man? His upright military bearing led some to regard him as remote. But Robert was not remote. He was one of the great and the good, who perhaps attracted the reputation of remoteness simply because of his distinction. Perhaps he inherited the military bearing from his father, a career officer in the Artillery. Sadly for their relationship, by the age of 16 Robert had developed a profound dislike of shooting, fishing, hunting and even riding, which together represented his father’s principal interests. From his mother’s side came Robert’s love of most things Scottish. Robert’s apparent reserve derived from his shyness, a shyness which his family will tell you was so marked that he would visit neither a restaurant nor a shop unless taken there by force. He made one exception in the interest of law students, in whose welfare he was passionately interested, largely because he observed that nothing at all was at that time done by the Inn for its students. His great friend Ted Laughton-Scott, in chambers with Swinton Thomas, had set himself up as a sort of student welfare officer, and immediately enlisted Robert’s assistance to organise talks for the students by his friends from Oxford.

Leaving aside his family life, it was in the Inner Temple and in Chambers that Robert felt happiest. His great soul-mate in chambers was Brian Davenport, a brilliant man whose life was tragically cut short by multiple sclerosis. Robert was never happier than when visiting the small coffee house in Devereux Court, the Temple Table, where with Brian and other colleagues from Chambers he would meet his chums from the Commercial Bar, Michael Mustill prominent among them, and Tony Lloyd, and the old anecdotes would be endlessly retold for the benefit of us youngsters. Robert had a huge appetite for fun, and he and the others would dissolve into helpless laughter as they recounted their exploits of earlier years. And then at the end of the day, as Robert once memorably said at a chambers dinner in his honour, he would go home and complain to Sarah about how much work he had to do that evening. But above all Robert was a devoted family man, who in spite of the other calls on his time, spent many hours with his children in their formative years. Apart from his family and the law, music was his great passion and interest, about which he was hugely knowledgeable. He was an accomplished pianist, and would get up at 6am or earlier every morning and play a movement from a Mozart sonata before beginning his work. He would spend hours transposing and arranging pieces for the family collection of instruments, and in his encouragement of Katherine, Juliet and Thomas in their study of music. Robert and Sarah would go to the opera and to concerts whenever they could. He loved the country, particularly birds, and he and Sarah were an accomplished team of gardeners, creating lovely gardens, particularly at Chieveley. He formed a great attachment to the coastline around Penwith in west Cornwall, where for years the family had a house at which they spent long summers. Robert was of course blessed with a powerful intellect and critical faculty, but he was unsparing in subjecting his own performance to self-criticism. Rarely satisfied with his first draft judgment, he would often start all over again. He cautioned against what he called the temptation of elegance, the adoption of solutions which because of their elegance automatically carry a degree of credibility, because, as he said, the law has to reflect life in all its untidy complexity.

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Master Goff

And yet his judgments were models of elegance. They were beautifully structured in elegant prose, imbued with deep learning and a profound understanding of the problem at hand.

He was devoted too to the University of Oxford, where he served as High Steward for 10 years. At the Bar, Robert was much in demand, particularly as a silk, in what were perceived as difficult cases, requiring intricate legal analysis. In presenting a legal argument he had no peer, although typically, he declined ever to cite Goff & Jones, even when no other authority or learning could be found upon the point at issue. He was also a highly effective cross-examiner, not least because he generally had a far better command of the documents in the case than those who had produced them. In commercial arbitration in the City he was listened to with a respect bordering on reverence. As a judge of first instance he was quite simply the perfect tribunal. Courteous, quick to grasp the point, eager to engage in the argument and to see all around it, always practising that humility which he certainly did not think was too much to ask of himself.

In his later judicial career Robert became very interested in comparative law. He was Chairman of the British Institute of International and Comparative Law. At the British Academy he met Christian von Bar, a professor of international law at Osnabrück in Germany, a committed Anglophile and admirer of the common law. With him, Robert became involved in setting up annual meetings in Germany and England between a group of judges from the German Supreme Court and a similar group of English appellate judges, to discuss specific problem cases in their jurisdictions and how they had dealt with them. For his work fostering Anglo-German judicial co-operation, Robert was awarded the German Grand Cross (First Class) of the Order of Merit. Robert had some endearing idiosyncrasies. He could not and would not look after himself and would rather fast all day than open the fridge door or put on a kettle. And yet Robert was surprisingly practical in other ways. With Sarah’s assistance he thought nothing of hanging wallpaper, putting up shelves and really quite advanced carpentry. Sometimes however his enthusiasm got the better of him. One spring the outside of the house in Holland Park needed painting. Estimates were obtained and as Robert was unhappy with them, he declared that he was sick to death of paying income tax at 83% and that he was going to take off the last 3 weeks of March and paint the house himself. Unfortunately, Robert had a terrible head for heights and consequently Sarah spent many days of a bitterly cold and icy March holding on tightly to Robert’s legs, while he wobbled in a constant state of anxiety at the top of an extended ladder.

Apart from his family, music and the law, Robert had a great love of all things Italian, particularly the art, cities, landscape and opera. After leaving Eton, Robert was called up in September 1944. He spent 8 or 9 months training for combat in the Far East and specifically Japan. Booked to sail for the Far East in September 1945, he was given a few weeks’ embarkation leave. Not expecting ever to return home, he came to London to pack in as many proms as he could whilst he still had the chance. Then came the atomic bombs, and the Japanese surrender. After a spell of Guard Duty at Windsor Castle, where he quickly made friends with the librarian and was allowed privileged access every evening to the Leonardo drawings in the Royal Collection, he volunteered to travel to Italy, as part of a force to keep an eye on Marshal Tito and Trieste. He stayed in Italy as Communications Officer until July 1948 and loved it. He went skiing. He toured the hill towns and cities, taking his men to Perugia to see the Piero della Francescas. He always loved to return to Italy, and he and Sarah spent their honeymoon there, in what Robert thought of as a sort of Paradise.

Five Judges by June Mendoza

Throughout Robert’s final years, in which he was cruelly deprived of his powers, he maintained his essential nature and his unfailing courtesy, unflaggingly sustained by Sarah, who was at his side for over 63 years. In remembering Robert, I would urge you to have a look at June Mendoza’s group portrait of Five Judges which hangs in Inner Temple. It is a group portrait, and many of you will know the other four sitters. The picture invites discussion as to whose is the better likeness, but this evening I suggest you concentrate simply on Robert. The painter has, I believe, captured him to perfection. Seated, he is leaning forward with his shoulders characteristically slightly hunched, fixing the notional speaker with his gaze, the beginnings of a gentle smile playing around his lips and eyes. He is totally engaged with whatever is under discussion, but wholly unable to suppress his natural inclination to smile, a smile which so often broke into laughter. For those of us who knew Robert as a colleague or as a friend, we remember him as a giant amongst us, a brilliant man who wore his brilliance lightly, a man of huge warmth and fun. If just a little of how he sought to live his life, and to do his work, has rubbed off on us, we should count ourselves very fortunate indeed. The Rt Hon Sir Stephen Tomlinson

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TIMELINE: A HISTORY OF THE EU By Sally McLaren, Assistant Librarian

1945: WORLD WAR II ENDS

1946: CHURCHILL AT ZURICH In September of 1946 Winston Churchill gave a speech at the University at Zurich in which he expressed the need “to recreate the European family”, and famously called for a “United States of Europe”. The ‘European idea’ was not a new one, but the post-war period had brought it new adherents and given it an urgency it hadn’t had before. Churchill’s speech gave air to this: “If Europe is to be saved from infinite misery, and indeed from final doom, there must be an act of faith in the European family and an act of oblivion against all the crimes and follies of the past.”

1948: EUROPEAN CONGRESS

1949: COUNCIL OF EUROPE CREATED

1950: SCHUMAN DECLARATION

In May of 1948 the European Congress was held in The Hague. Organised by the Joint International Committee for European Unity, it was attended by 800 delegates including many of the EU’s founding fathers: Winston Churchill, Konrad Adenauer, Paul-Henri Spaak and Altiero Spinelli. They met to discuss the future of Europe and how they might achieve their broad goals of creating a union, both economically and in terms of foreign policy and defence.

1950: EUROPEAN CONVENTION ON HUMAN RIGHTS SIGNED

On 9th May 1950 French Minister Robert Schuman, in cooperation with Jean Monnet, put forward the idea of integrating the militarily important coal and steel industries of Europe. The Schuman Declaration, as it would become known, stated that integration would make war “not merely unthinkable but materially impossible”. It suggested that a ‘High Authority’, transcending national boundaries, would manage these industries. The Schuman Declaration would form the basis of what would become the European Coal and Steel Community (ECSC) and as such has been called the ‘birth certificate’ of the European community. The 9th May is now celebrated as Europe Day.

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Timeline: A History of the EU

1951: TREATY OF PARIS

1957: EURATOM

The Treaty of Paris was signed in 1951 by France, Germany, Italy, Belgium, the Netherlands and Luxembourg. It established the European Coal and Steel Community (ECSC), a common market for these industries overseen by a High Authority, “a supranational body which would be independent of member governments yet take decisions that would be binding upon member governments.” (Solanke, I. EU Law). Jean Monnett would serve as its first President (1952-1954). Based on the Schuman Declaration, it represented an “unprecedented experiment”, and one which Britain was invited to join on two occasions, declining both. The ECSC Treaty expired in 2002.

1952: COURT OF JUSTICE OF THE EUROPEAN UNION FOUNDED

1957: TREATY OF ROME

The Treaty establishing the European Economic Community (commonly known as the Treaty of Rome) was signed in 1957 and came into force the following year. Belgium, West Germany, France, Italy, Luxembourg, and the Netherlands were the original signatories (also known as ‘The Six’ or the ‘Inner Six’) to the treaty which would serve as the basis for the future of the European community. The EEC would have institutions similar to the ECSC, but it went further in its remit: “it took regional cooperation to a new level by both expanding the scope of activity beyond raw materials and deepening the political ties between cooperating states. It included a customs duty as well as the creation of a common market in a range of sectors including agriculture, goods, services, transport and capital.” (Solanke, I. EU Law)

In March of 1957, the European Atomic Energy Community (Euratom) Treaty was signed alongside the EEC Treaty, collectively they are known as the Treaties of Rome. Euratom was intended to address issues concerning the research and development of (civilian) atomic energy and nuclear industries in the EEC.

1959: EUROPEAN COURT OF HUMAN RIGHTS FOUNDED

1960: EUROPEAN FREE TRADE ASSOCIATION (EFTA)

The European Free Trade Association (EFTA) was established by the Stockholm Convention of 1960. The founding members (Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United Kingdom) intended the EFTA as an alternative to the European Economic Community. “The main objective of the Association was to liberalise trade among its Member States, and the Convention thus contained basic rules regarding free trade in goods and related disciplines.” (www.efta.int) Their preference was for a more relaxed association without supranational institutions or political objectives, one “that ignored borders instead of removing them”. It has been labelled a scheme of ‘mutual nonannoyance’. (Solanke I. EU Law)

1973: OIL CRISIS

1975: UK REFERENDUM

On 5 June 1975, the Labour Government under Harold Wilson held a referendum on whether or not the UK should stay in the EEC. 67.2% voted to stay. Home Secretary Roy Jenkins responded to the news: “It puts the uncertainty behind us. It commits Britain to Europe; it commits us to playing an active, constructive and enthusiastic role in it.”

1981: GREECE JOINS EEC

1984: REBATE

In 1984, Margaret Thatcher began negotiating for a rebate on the UK’s financial contribution to the European Community. In March of 1984, negotiations stalled when a final figure could not be agreed upon. Greek politician and economist Andreas Papandreou commented that: “It would be a great relief if Britain left the EEC”. An agreement was reached later that year at the Fontainebleau European Council. Britain would receive annual compensation, “for every £1.50 per capita the UK poured into Europe it got £1 back.”

1985: FIRST EUROPEAN PASSPORTS ISSUED

1985: GREENLAND LEAVES In 1985, Greenland left the EU after 3 years of negotiations. As a part of the ‘Danish Realm’, Greenland initially joined the EEC when Denmark did in 1973. In 1979, Greenland was granted home rule and held a referendum on membership in 1982. They voted to leave (52% to 48%).

1986: SPAIN AND PORTUGAL JOIN EEC

1986: SINGLE EUROPEAN ACT The Single European Act (SEA) was signed in 1986 and came into force the following year. It was the first major revision of the Treaty of Rome. SEA helped lay the groundwork for transition to a single market, introduced significant institutional reform (including expansion of the European Parliament’s powers to legislate), brought in majority voting in many instances, and established the beginnings of a common foreign policy for the European Community.

1989: BERLIN WALL FALLS

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1961: BRITAIN APPLIES TO JOIN THE EEC

In August of 1961 Britain, under the Conservative Government of Harold Macmillan, applied to join the EEC. Some have said that this shift in Britain’s stance towards the Community was driven by the apparent economic success of the EEC countries, coupled with a fear of losing a place at the International table as Britain watched its empire fragment. Macmillan announced the application in the House of Commons to “cries of ‘shame’ stabbing through the cheers”, according to the Guardian’s Parliamentary correspondent at the time. Although there were some very vocal opponents in the House, the motion was adopted by 313 votes to 4. Ireland and Denmark joined Britain in the application process and difficult negotiations (Britain had a number of conditions) began in October of that year.

1963: DE GAULLE’S VETO

In 1963, Britain’s application to join the EEC was derailed by French President Charles de Gaulle’s veto. De Gaulle had a number of objections to Britain joining: “England in effect is insular, she is maritime. She is linked through her exchanges, her markets, her supply lines to be the most diverse and, often, the most distant of countries. She pursues essential industrial and commercial activities, and only slight agricultural ones. She has in all her doings very marked and very original habits and traditions. In short, the very nature, the structure, the very situation that are England’s differ profoundly from most of the Continental’s.”

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1967: MERGER TREATY

The Merger Treaty, also known as the Brussels Treaty, was signed in 1965 and came into force in 1967. It brought together the ECSC, EEC and Euratom, uniting them with a single Commission and Council of Ministers. It would later be repealed by the Treaty of Amsterdam.

1969: DE GAULLE RESIGNS

1973: FIRST ENLARGMENT

Britain joined the EEC in 1973 alongside Ireland and Denmark. Britain would not hold a referendum on membership until 1975, in the meantime: “One temptation should be avoided – to seek, month after month, to prove that membership of the Community has created all Britain’s ills. We enter Europe with the reputation of being a nation of shopkeepers; we would be unwise to present ourselves as a nation of second-hand car dealers. Above all we should avoid creating a new, semi-permanent rift in British society, between pro and anti-Europeans.” (The Guardian, 1 January 1973)

1990: EUROPEAN MONETARY UNION CREATED 1990: UK JOINS ERM (BRIEFLY) In 1990, Britain under Conservative Prime Minister John Major (and to considerable resistance) joined the Exchange Rate Mechanism (ERM).

1990: GERMANY REUNIFIES

1991: YUGOSLAV WARS From 1991 to 2001 a series of bloody conflicts raged inside the former Yugoslavia. Foreign Minister Jacques Poos famously proclaimed “This is the hour of Europe”, but in reality the EU’s Common Foreign and Security Policy (CFSP) fell short and it has been noted that his statement has come to “symbolize the irony of what the EU failed to deliver in Yugoslavia in terms of its supranational action” (Musliu, V. Western powers and the breakup of Yugoslavia)

1991: COLLAPSE OF THE SOVIET UNION

1992: MAASTRICHT

In February of 1992, the Treaty on European Union (TEU) (commonly referred to as the Maastricht Treaty) was signed, it came into force the following year. Maastricht brought the European Union into being, not simply by rechristening it, but by introducing a new social chapter and a common foreign policy, it established the 3 pillars of the new Union: European community, Justice and Home Affairs and a Common Foreign and Security Policy. Maastricht would also increase the powers of the European Parliament, help move Europe towards a monetary union and create the idea of the European citizen with the granting of certain rights to live and vote in any EU country. Britain would opt out of the monetary union and the social chapter.

1992: BLACK WEDNESDAY On 16 September 1992, Britain was forced to withdraw from the Exchange Rate Mechanism after the pound spectacularly crashed and the government’s emergency remedies of raising base interest rates had little effect. Currency speculators such as George Soros continued to sell sterling and, after an emergency meeting, Norman Lamont (then Chancellor of the Exchequer) announced that Britain would leave the ERM after joining only 2 years before.

1994: EUROPEAN ECONOMIC AREA (EEA) The Agreement of the European Economic Area (EEA) was signed in 1992 and came into effect in 1994, “covering the four freedoms – the free movement of goods, services, persons and capital” throughout EEA states. (www.efta.int)

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Timeline: A History of the EU

1995: FOURTH ENLARGMENT

1997: TREATY OF AMSTERDAM

1999: CREATION OF THE EURO

The Treaty of Amsterdam was signed in 1997, amending previous treaties, and addressing the need of the European Union to prepare for enlargement with the future accession of East European countries. The recently elected Labour Prime Minister Tony Blair would adopt the social chapter of Maastricht with the signing of the Treaty of Amsterdam.

In 1999, the Euro was born; all future EU members would be required to adopt this currency. The UK, Sweden and Denmark opted out. Alexandre Lamfalussy, the first president of the European Monetary Institute presented the new currency designs, he would later be dubbed the ‘euro father’.

In 1995, the Treaty of Corfu (signed the year before) brought Austria, Sweden, and Finland into the EU. After this fourth enlargement the total number of Member States stood at 15.

1995: SCHENGEN AGREEMENT

In 1985, the first Schengen Agreement was signed by France, Germany, Belgium, Luxembourg and the Netherlands, it came into force in 1995. This created the Schengen Area (also dubbed ‘Schengenland’) in which border controls would be gradually removed. The second Schengen Agreement was signed in 1990 and led to the adoption of common rules on asylum, visas and immigration. The Schengen Agreement now covers all member states except the UK and Ireland.

1998: EUROPEAN CENTRAL BANK ESTABLISHED

1999: STABILITY PACT Adopted in 1999 and reaffirmed at the Sarajevo Summit in July of that year, the Stability Pact was “the first serious attempt by the international community to replace the previous, reactive crisis intervention policy in South Eastern Europe with a comprehensive, long-term conflict prevention strategy”. It was intended that this strategy would help pave

the way for their integration into the EU by fostering “peace, democracy, respect for human rights and economic prosperity in order to achieve stability in the whole region”

2000: CHARTER OF FUNDAMENTAL RIGHTS DECLARED 2001: TREATY OF NICE

In 2001, the EU prepared for new member states from Eastern Europe, with the signing of the Treaty of Nice which was intended to introduce institutional reform and ensure efficiency was maintained after enlargement. Reforms included a redefinition of the voting system with vetoes removed for issues other than tax and social policy.

L 24 JUNE 2016: CAMERON RESIGNS

JULY 2016: THERESA MAY BECOMES PRIME MINISTER In July, Theresa May became Prime Minister, announcing that “Brexit means Brexit” and pledging to invoke Article 50 by the end of March 2017. David Davis was appointed as Secretary of State for Leaving the European Union.

R (MILLER) V SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION Gina Miller and Deir Dos Santos brought a case challenging the government’s right to trigger Article 50 without holding a vote in parliament. Gina Miller: “The problem with article 50 of the Lisbon Treaty is that it is not substantive in its content or conditions, and only concerns itself with procedural requirements ... A fundamental pillar of our constitution is that only parliament can grant rights, and only parliament can take them away.” The Court ruled in their favour. Lord Thomas of Cwmgiedd: “The government does not have power under the crown’s prerogative to give notice pursuant to article 50 for the UK to withdraw from the European Union.”

NOVEMBER 2016: ENEMIES OF THE PEOPLE

On 3 November 2016, the Daily Mail published a front page article about the judges who delivered the decision in R (Miller) v Secretary of State for Exiting the European Union, labelling them ‘enemies of the people’. Liz Truss, the Lord Chancellor, was criticised for not making a statement in defence of the judiciary. She explained: “I think it is dangerous for a government minister to say, ‘this is an acceptable headline and this isn’t an acceptable headline,’ because I am a huge believer in the independence of the judiciary. I am also a very strong believer in the free press.”

Sir Jeffrey Jowell QC writing in Counsel countered this argument:“Rebutting the content of the attacks on judges need in no way question the freedom of the press. It simply engages with the substance of the allegations … The charge against the judges as being ‘enemies of the people’ (and other similar formulations) is, however, of a different order. It is based on a massive distortion, namely that the Miller decision seeks to overturn the result of the Brexit referendum.” Lord Chief Justice, Lord Thomas of Cwmgiedd who heard the case outlines the seriousness of the attack: “It is the only time in the whole of my judicial career that I have had to ask for the police to give us a measure of advice and protection [for Gina Miller] in relation to the emotions that were being stirred up.”

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2003: CONSTITUTION Headed by former French President Valéry Giscard d’Estaing, the Convention of the Future of Europe published their draft Constitutional Treaty in 2003 with the intention of simplifying the EU treaties. The Treaty was signed in 2004, but could not be ratified by all member states and was rejected in referendums in France and the Netherlands in 2005. The Treaty of Lisbon would incorporate many of the Constitutional Treaty’s provisions.

2003: 10 NEW MEMBER STATES In 2003, the EU underwent its biggest enlargement to date, with Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia joining the union.

2007: ROMANIA AND BULGARIA JOIN EU 2007: TREATY OF LISBON The Treaty of Lisbon was a ‘reform treaty’ which amended the Treaty of Rome and the Maastricht Treaty and would incorporate many of the provisions from the abandoned Constitutional Treaty. Signed in 2007, it came into force in 2009 with member states either opting to hold referendums (e.g. Ireland) or pass via parliament (e.g. Britain) The Treaty of Lisbon created “a new legal personality for the EU, revises decision making procedures, and creates new offices for a President of the European Council and a High Representative of Foreign Affairs and Security Policy”. (Pinder, J. The European Union: A Very Short Introduction).

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2008: EUROZONE CRISIS

2012: NOBEL PEACE PRIZE

The financial crash of 2008 triggered the Eurozone sovereign debt crisis which would lead to rescue packages awarded to some Member States, most notably Greece. Longer term solutions proved difficult to negotiate when Prime Minister David Cameron refused amendments to the Lisbon Treaty. An alternative solution was achieved with the intergovernmental Treaty on Stability, Coordination and Governance (TSCG) later known as the Fiscal Compact. This agreement was unusual in that it sits outside EU’s legal framework. The UK did not sign up.

In 2012 the European Union was the recipient of the Nobel Peace Prize for over six decades of contributions "to the advancement of peace and reconciliation, democracy and human rights in Europe"

2013: CROATIA JOINS EU 23 JUNE 2016: UK REFERENDUM

On 23 June 2016, the UK held a referendum on whether or not to stay in the EU. Approximately 30 million people turned out to vote (71.8%). 52% voted to leave the EU, with remain majorities in Scotland, Northern Ireland, and Gibraltar.

L DECEMBER 2016: SCOTLAND’S PLACE IN EUROPE In December of 2016, First Minister Nicola Sturgeon publishes Scotland’s Place in Europe which contained proposals “designed to respect Scotland’s voice and protect our national interests.” In March 2017, Sturgeon confirmed she will pursue a second referendum on Scottish independence: “I will take the steps necessary now to make sure that Scotland will have a choice at the end of this process … A choice of whether to follow the UK to a hard Brexit, or to become an independent country able to secure a real partnership of equals with the rest of the UK and our own relationship with Europe.”

JANUARY 2017: SUPREME COURT DECISION In January, the Supreme Court handed down its decision in R (Miller) v Secretary of State for Exiting the European Union. All 11 Justices heard the appeal, and ruled 8-3 that an Act of Parliament was required and the government could not simply use its executive powers to trigger Article 50. Lord Neuberger: “any change in the law to give effect to the referendum must be made in the only way permitted by the UK constitution, namely by an Act of Parliament. … To proceed otherwise would be a breach of settled constitutional principles stretching back many centuries ... Where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation”

MARCH 2017: BREXIT BILL GIVEN ROYAL ASSENT

29 MARCH 2017: ARTICLE 50 TRIGGERED On 29 March, Theresa May gave official notice under Article 50 of the Lisbon Treaty. Brexit begins.

Sally McLaren To see the full time line https://www.innertemplelibrary.org. uk/timeline/a-history-of-the-eu/

The Inner Temple Yearbook 2017–2018

The Limits of Fiduciary Rules

THE LIMITS OF FIDUCIARY RULES From a lecture given by Professor Sarah Worthington on 13 March 2017

INTRODUCTION: A SPECIAL INTEREST IN FIDUCIARIES Fiduciaries occupy something close to hallowed status in litigation. If the defendant is a fiduciary, then the potential remedial landscape balloons. Not only is compensation typically available, but there is also the possibility of disgorgement of profits, the potential for lucrative tracing claims, and the insolvency benefits of proprietary remedies. The fiduciary classification can seem to provide an open road to filling obligational gaps, garnering windfall profits and obtaining insolvency priority.

THE MODERN REACH OF ‘FIDUCIARY OBLIGATIONS’

My goal here is to suggest some of the limits to the wellknown fiduciary rules. But first, a word of warning.

We have now carved out the one particular duty to avoid conflicts of duty and interest and refrain from making secret profits, and we call this the ‘fiduciary obligation’. This is the obligation, and none other, invariably owed by fiduciaries, and not owed by non-fiduciaries.

SOME HISTORY: A CONTEXT FOR THE LIMITS TO FIDUCIARY RULES

Two features of this restricted concept of fiduciaries are worth noting.

It is perfectly possible to find older cases dealing with ‘fiduciaries’ which appear to support any and every type of assertion about fiduciary rules. Not so long ago, the term ‘fiduciary’ was used to describe almost anyone subjected to equitable constraints.

able to fine-tune every aspect of the relationship to ensure that moral ends were delivered. In defining relationships as fiduciary, not obligations, the contrast with tort, contract and unjust enrichment is stark, and the consequences predictable. This history still has the power to hamper modern analysis unless we remain alert to the fact that we have moved on.

In 1977, Paul Finn’s classic Fiduciary Obligations noted: “A fiduciary for one obligation is not ipso facto a fiduciary for all, or indeed any, of the other obligations.” Judges themselves provided little guidance on the relevant rules. They typically identified entire relationships as fiduciary, and with that felt

First, this obligation provides for draconian constraints on party autonomy. Such constraints are rare in private law: our laws are typically directed solely at ensuring we do not harm others, not insisting that we practise selfdenial, putting the interests of others ahead of our own.

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Secondly, although the label ‘fiduciary’ is still applied to a person, it is now only applied to someone who owes duties to avoid conflicts and refrain from making secret profits. These ‘fiduciaries’ will also owe other obligations, invariably, to comply with the strict terms of their engagement, and to do so in an appropriate manner. This means that there are often two, or three or four, different answers to the question, ‘What do fiduciaries have to do?’ But that should not hide the significant point that it is the narrow conflicts/secret profits rule which uniquely constrains fiduciary activity. Consider the particular contexts in which something can go wrong. A trustee can be involved in various breaches going well beyond breaches of fiduciary obligation: wrongful paying out of assets; wrongful management of the assets; and disloyalty. To these scenarios we can add one further context for fiduciary wrongdoing: wrongful advice to the principal. It is with this last piece of the jigsaw that we notice the limits of fiduciary rules. For example, where fiduciaries act negligently or for improper purposes, three possibilities must be carefully distinguished. Sometimes the negligence or bias concerns use of the managed fund; sometimes it concerns advising the principal how to act. In both cases there is a ‘but for’ test, but with a very different focus in each case. But there is also a third possibility. The fiduciary’s advice may also be self-serving. If the fiduciary has gained personally, then disgorgement is warranted. The disgorgement remedy is strict: the mere fact of a secret profit being made is enough. The fiduciary cannot argue that the principal would have acted in the same way even if consent had been sought – the ‘but for’ test is irrelevant to profits disgorgement. The key issue is to isolate the particular obligation in issue, not merely the type of relationship.

THE LIMITS OF THE DISGORGEMENT REMEDY Two limits of the disgorgement remedy are especially important. The first limit is obvious. Disgorgement should only capture gains made disloyally; it should not capture every gain made by the fiduciary while occupying the fiduciary role. The second issue is the nature of the disgorgement remedy. In FHR v Cedar Capital, the principal sued an agent for disgorgement, successfully alleging that the secret commission was held by the fiduciary on constructive trust for the principal. FHR now settles the debate: the remedy is proprietary. But although we know it is, because the Supreme Court has said so, I suggest we still do not know quite why it should be so.

“ We are so used to measuring compensation by focusing exclusively on the harm suffered by the claimant that we might easily fail to notice that in equity the focus can be different.”

The Inner Temple Yearbook 2017–2018

The choice is difficult precisely because it is not a matter of doctrine, but exclusively a matter of policy: what is the obligation in issue and what is its purpose? The appropriate remedy follows ineluctably from that. The essential choice is between seeing the fiduciary ‘non-compete rule’ as so important that, when the fiduciary does compete, the benefits of that competition should go to the principal, and do so in an ‘over-protective’ proprietary sense. The alternative is that the fiduciary disloyalty rule is only proscriptive and its purpose is simply fiduciary profitstripping. The remedy would then be exclusively personal. Courts in other common-law jurisdictions have settled universally on the view that the constructive trust in these circumstances is ‘remedial’. This means that just when proprietary consequences really matter, these courts may well decide that a proprietary remedy should be denied. In England, this overseas ‘remedial’ approach is criticised as allowing judges to administer palm tree justice. But there is surely also a suggestion of palm tree justice in finding that a claimant has a property right without proper justification.

THE LIMITS OF THE EQUITABLE COMPENSATION REMEDY Equitable compensation is ordered for breaches of many of the duties owed by fiduciaries. Its focus may be on making whole the trust fund or the managed assets, or on making whole the beneficiaries or the principal. We are so used to measuring compensation by focusing exclusively on the harm suffered by the claimant that we might easily fail to notice that in equity the focus can be different. It was this difference which may have complicated analysis in the Supreme Court decision in AIB v Redler and in its predecessor, Target Holdings v Redferns, in the House of Lords. Both cases involved claims by banks against solicitors. Both banks faced large losses and both sought unsuccessfully to make their trustee solicitors liable to the full extent of the loss. Dissentients say that the flaw in both AIB and in Target Holdings is a failure to appreciate the different claims available against defaulting fiduciaries. On their analysis there are primary duties (to perform the trust) and secondary duties (to compensate for losses from non-performance or faults in performance), and fiduciary duties requiring disgorgement of disloyal benefits. The dissentients suggest that the courts in Target and AIB focused on the second option and inexplicably ignored the first. According to the first option, the trustee is obliged to hold the fund transferred on trust until it is paid out in an authorised way. The claim under the first option is a claim to enforce this duty of the trustee. No breach and no loss need be shown. On this basis the solicitors should not have paid out the trust funds and are obliged to restore them. This is the argument the banks had run in both cases, and in neither case had the court accepted it. The reason is obvious: it would be punitive to force fiduciaries to pay damages for a loss which they did not cause or contribute to, being one which the claimants would have suffered even if all had been done exactly as required. The Supreme Court realised that the nature of the obligation is key. They distinguished equitable and common law obligations, and held that “the basic right of a beneficiary is to have the trust [fund/property] duly administered in accordance with the provisions of the trust instrument, if any, and the general law”. There is no hint of a distinction between the ‘specific performance’ and ‘compensation’ duties, and, in my view, nor should there be. 43

The Inner Temple Yearbook 2017–2018

The Limits of Fiduciary Rules

LIMITING THE IMPOSITION OF FIDUCIARY RULES

The reverse question is more difficult. Should the fiduciary regime ever be imposed on those we do not traditionally regard as fiduciaries? For example, should it apply to thieves, or to third-party accessories? We do not usually think of these parties as fiduciaries. But the remedies suggest otherwise. We increasingly treat these parties in the same way as we treat fiduciaries, imposing disgorgement remedies.

The fiduciary label describes people who are expected to put the other’s interests ahead of their own. To the extent that fiduciaries do not do this, they will have to disgorge the benefits thereby obtained. When is this sort of intervention necessary if the arrangement between the parties is to be functional? The answer must necessarily move from a focus on people-labelling to a focus on obligation-labelling: when is an obligation of self-denial needed? When is it appropriate to prevent one party pursuing conflicting gains?

The fiduciary no-conflicts rule is directed at ensuring that the fiduciary does not compete. This says nothing about rules relating to which tasks are assigned or how they are carried out. Other rules are required to deliver those ends. So, the question becomes: when is a ‘non-compete’ rule essential, so much so that the law will impose it?

The same fiduciary remedial consequences are now increasingly applied to knowing/unconscionable recipients and dishonest assisters. In both cases, the remedies for accessory breaches track the fiduciary model. Although it goes against the mainstream, I suggest that these people are fiduciaries, and that all the knowledge tests we have struggled with for so long are directed at establishing the fiduciary role in managing another’s assets. The remedies then follow accordingly, including remedies that would otherwise be quite exceptional in requiring disgorgement rather than merely compensation.

The driver for finding fiduciary obligations is invariably a drive for better remedies. The practicalities are nicely illustrated by two examples, one from consensual relationships and one not.

These cases illustrate the potential reach of fiduciary law. They suggest that both the reach and the limits of fiduciary rules may not be quite as we first thought.

First, can fiduciary status in consensual relationships be excluded entirely? It is inconceivable that trustees or company directors could insert provisions into their contracts excluding the fiduciary ‘no conflicts’ regime. But outside those statusbased contexts, the issue is nicely illustrated by Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited. An exclusion clause provided that Citigroup was engaged “[a]s an independent contractor and not in any other capacity including as a fiduciary”. Jacobson J held that such an exclusion clause was effective. That seems right.

CONCLUSION A rigorous analysis of the fiduciary terrain and careful exposure of its detail is only possible if we untangle the precise obligations in issue and their particular objectives or goals, and if we then describe these findings in a simple, common, legal language. This will ensure that important comparisons can be made across the common law landscape, and significant analogies and distinctions are not missed. Professor Sarah Worthington Downing Professor of the Laws of England and Fellow of Trinity College, Cambridge The full version of this lecture is available at www.innertemple. org.uk/education/lecture-series-2017

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The Inner Temple Yearbook 2017–2018

PUPILLAGE AFTER 28 YEARS AT THE BAR By Ramakrishnan Viraraghavan, Wilberforce Chambers In 2012, I had been an advocate in India for over 26 years. I was in full flow of practice, enjoying appearance before many of the 24 High Courts and the Supreme Court. I had no intention of becoming a barrister. Just then, an English barrister of Indian origin Ms Chandra Sriram stepped into Chambers for advice on Indian law. She suggested I should become a barrister. I listened to her politely but did nothing much about it. A few months later, my wife and I were to attend a wedding in the United States. We stopped in London for a couple of days. Ms Chandra Sriram was in London around that time. Of her own accord, she enquired of the Bar Standards Board the procedure for transfer to the English Bar and sent me the details. I was then hooked. I had pretty much seen and done almost everything I could do at the Indian Bar. I felt it would be a refreshing change to be an advocate at the place where it all began; to drink the waters of the stream at the source. After the Bar Standards Board cleared my application for transferring as foreign lawyer, I needed to join one of the Inns of Court. I did some research and found that two of the great leaders of the Indian independence movement viz Mahatma Gandhi and Mohammed Ali Jinnah were both members of Inner Temple. I puzzled about this since I thought Mohammed Ali Jinnah was called to the Bar by Lincolns Inn – but more about this later. I wrote to the Treasury of Inner Temple and was pleasantly surprised to receive a favourable reply within just a few days and I wrote to the Membership Registrar, Mr Jude Hodgson, thanking him for the promptness. I was now a student member of Inner Temple. The difficult part was sitting the Bar Transfer Tests. The viva part of the tests – professional ethics, witness examination, preparing skeleton arguments was not difficult. This was similar to what I was doing in India, day in and day out for the past two decades and more. Reading English law on civil procedure, criminal procedure and evidence was tough. I not only had to read new law but also had to unlearn a lot of existing Indian law. For example, the Indian district judge was in charge of an entire district, the English equivalent of a county. He was just one rung below the High Court. Indian Evidence Act disallowed hearsay evidence, barring a few exceptions. English law permitted hearsay evidence to a number of degrees. At some point during the lectures leading up to the Bar Transfer Tests, a Bolivian lawyer sitting next to me remarked, “Ram, we are crazy to be doing this. We ought to have our heads examined”. Happily for me, I cleared the tests with high scores. As a transferring lawyer, I was entitled to be called to the Bar before completing the Qualifying Sessions. My Call to the Bar was to be proposed by a Bencher of the Inn. Inner Temple would suggest the name of a Bencher in London, just to help me. I needed to meet the Bencher and get him to propose my Call to the Bar. I had returned to India by then. To come back to London just to get a signature on the Call to the Bar form would make it pretty expensive form. I suggested various alternatives, videoconferencing and electronic documents. To cut a

long story short, the traditions of Inner Temple yielded to no one. In retrospect, I am so glad it did not yield. Inner Temple had kindly suggested my meeting Master Thomas Seymour. I fixed an appointment with him and returned to London for about three days to request him to propose my Call to the Bar. I was not too sure how this meeting would turn out to be. I checked with a couple of barristers whether I would be questioned on my knowledge of English law once again. I need not have worried. Master Seymour was “a verray parfit gentil knight”. He asked me why I wanted to transfer to the English Bar and if I wished to practise here. I told him the reason. He appreciated it and signed the form proposing. I was touched by the fact that he would be taking time off his busy practice just to move my Call to the Bar. The Call to the Bar was a simple and beautiful ceremony at the Temple Church. My wife did not see my enrolment as an advocate in the rolls of the Bar Council of India. It was lovely that she was with me at my Call to the English Bar. My wife and I interacted with the Sub-Treasurer both before and after my Call to the Bar. Whilst he was warm and friendly, he did not take kindly to my leaving for India after Call. He said I would not have completed my objective of drinking at the font of Justice and encouraged me to take up pupillage. He suggested I contact Master Seymour of Wilberforce Chambers to see if he would take me as pupil. Master Seymour could not have been more gracious in agreeing to take me as his pupil. It seemed so appropriate that the Bencher who proposed my Call to the Bar should welcome me as his pupil. Since this was an unfunded pupillage, we needed to look up the new regulations to see if this was permissible. The pupillage also had to be approved by the Pupillage Committee of Wilberforce Chambers. I needed to fit within the International Exchange Programme of the Bar Standards Board. All this took a few months. Meanwhile, I had to inform my Chambers in India and ensure my Indian practice was not too greatly affected by my long absence from India. So, after 28 years at the Bar, there was I, as a pupil in Wilberforce Chambers, sipping the waters of equity, among the brightest and the best barristers of England and Wales. Wilberforce Chambers is an amazing collection of talented barristers, juniors and silks, with a great deal of camaraderie and good humour. The depth and breadth of practice at Wilberforce Chambers and of my pupil master in particular, was amazing. Master Seymour’s practice covered the gamut from international commercial arbitration, pensions and wills, to mediation, manors and ecclesiastical property. A last word about Mohammed Ali Jinnah: The Sub-Treasurer clarified Muhammad Ali Jinnah was, of course, called to the Bar by Lincoln’s Inn. During the course of his very successful practice, he acquired a Chevy; a car too large to park in front of his chambers. It was as an ad eundem member of Inner Temple that Jinnah parked his Chevy right in front of his chambers in King’s Bench Walk. Ramakrishnan Viraraghavan Senior Advocate, India 45

The Inner Temple Yearbook 2017–2018

Inner Temple: An International Community

INNER TEMPLE: AN INTERNATIONAL COMMUNITY By the Sub-Treasurer

T Sub-Treasurer Patrick Maddams

If you have been to see the visually stunning film A United Kingdom it tells a remarkable true story. In 1947, the British Government held Protectorate responsibilities for the African territory of Bechuanaland, now Botswana. As with Gandhi, Nehru, Musa Alami, Abdul Rahman and others, its young and future King, Seretse Khama, heir to the BagammaNgwato people, was sent to London to study law. They all came to the Inner Temple to qualify as barristers. In London, Seretse fell in love with and married an English woman, Ruth Williams, played beautifully in the film by Rosamund Pike. You must watch the film to see what happened next but Prime Minister Attlee, also a member of Inner Temple, does not come out particularly well. Of course, Attlee had bigger international problems on his plate. The independence and partition of India and Pakistan; the Nuremberg war crimes trials; the Potsdam conference; withdrawing from the Palestine Mandate and nascent nationalism just about everywhere. Gandhi, Nehru and Alami all played their part in the momentous events of those days and no doubt used their formidable advocacy skills, honed at Inner Temple, to espouse their nations’ causes. Indeed, Gandhi had joined the Inn as far back as 1888 in those imperial days when the English legal system followed the Union Jack wherever it went.

We must however acknowledge that the Commonwealth came into being with the full support of Attlee’s government, one of its many achievements in the postwar reconstruction years. Jack Straw, a former Foreign Secretary and himself a Bencher of the Inner Temple said in a recent lecture about Clement Attlee that his government changed the shape of Britain both at home and in the world. The United Nations came into being in 1945 with a united India as a founding member ahead of independence, and Pakistan soon afterwards. Its first meeting was held in London’s Central Hall. Both the Commonwealth and NATO came into being four years later in 1949. Not bad for an Inner Templar who presided over the creation of the welfare state, the NHS, the nationalisation of swathes of industry, “a floor through which no one is allowed to fall”, and our own atomic bomb. It has been said of the Commonwealth that member states have no legal obligation to one another. Instead, they are united by language, history, culture and their shared values of democracy, human rights, and the rule of law. You would not need a Ph.D. to know these three shared values weave together, sometimes harmoniously and sometimes in tension, to create what we know as the common law. Its unique quality lies in the fact that, as a legal code, it matures over time, centuries even, and that it is capable of being adapted to the needs of individual nations and their constitutional arrangements. Brexit has demonstrated this all too clearly in recent times. Is democracy a handmaiden of the people (human rights) or Parliament (the law giver)?

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Today the Commonwealth includes five monarchies apart from a further eighteen where Her Majesty The Queen is herself the monarch, and thirty-one republics. And the number continues to grow with new members such as Mozambique, Rwanda and Cameroon joining this unique family of nations and exploring what the common law has to offer them. Judicial training is but one contribution that the established members provide.

The Inner Temple Yearbook 2017–2018

Famous Members of The Honourable Society of the Inner Temple

At the Inner Temple we play our part on this great map by training barristers across the Commonwealth, and in particular Asia, from Hong Kong to Malaysia, Pakistan, Brunei and Mauritius. Many have Islamic based constitutions but the common law generally blends in well alongside Shari’a codes as it did in Imperial times. To give just one example, at the International Islamic University of Malaysia and where the Inn has links, its law students study both systems with many going on to become police men and women as well as lawyers. On my most recent visit, there were very open conversations about domestic violence, prosecutions of perpetrators, child custody issues and the enforcement of judicial directions. We have much to learn from each other. The Inner Temple is particularly pleased to be collaborating with the Royal Commonwealth Society on a number of legal projects which bring together our combined expertise. A major conference for High Commissioners on tackling fraud and corruption is but one recent example. This year we will play our part in celebrating the 70th anniversary of India’s and Pakistan’s independence, the 60th anniversary of Malaysia’s and Ghana’s independence, and the Inner Templars who brought these nations into being.

Jawaharlal Nehru, first Prime Minister of India

Today the population of the Commonwealth at 2.3 billion people represents a third of the world’s population. We are all united under a common legal inheritance that can trace its origins up the River Thames to Runnymede and the Sealing of the Magna Carta 802 years ago. Its drafting is said to have taken place at the mediaeval Temple Church in London, then home to the Knights Templar and now at the heart of the Inner Temple estate. In the process, it created this country’s democratic shape and form, gave birth to the US Constitution, informed the European Convention on Human Rights, and strives to protect everyone under its umbrella across all six inhabited continents of the globe. Patrick Maddams Hon FRIBA Reproduced from ‘Royal Commonwealth Society 2017 Yearbook’

Musa Alami, Assistant Attorney General in Palestine

Portrait of Clement Attlee, Prime Minister 1945–1951, by Sir Lawrence Gowing RA

Tuanku Abdul Rahman, first constitutional monarch of Malaya

A young student Gandhi in London

The Inner Temple Yearbook 2017–2018

The Work of The Marshall Hall Trust

MARSHALL HALL TRUST: GIVING A CHANCE By Master Shields

In one of his most celebrated murder cases Marshall Hall, his closing speech having ended, rose to his feet again and pointed to the pathetic young girl defendant, huddled and crying in the dock, and exclaimed:

“ Look at her members of the jury, look at her; God never gave her a chance. Won’t you? Won’t you?”

As Master Sally Smith, his acclaimed biographer, has written elsewhere in this year book, Marshall Hall was a very emotional and compassionate man and deeply committed both to his profession and our Inn. The charitable trust – the MHT- which bears his name reflects both the lawyer and his character and is a lasting testament to his loyalties. Although he died in 1927, the trust did not come into existence until the late 1960s following the death of his only daughter; the simple object of its funds is to help needy members of the Inner Temple. This it has attempted to do since that date, administered by a committee consisting of members of the Inn, aided by an admirable secretary in Kate Peters, who meet at least four times of the year and in the meantime, with modern technology, seek to deal with any application as speedily as possible. The capital fund at present totals over £800,000 and has happily survived and grown notwithstanding the occasional economic setbacks that grip and strangle the markets. The MHT of course is not alone in helping members of the Bar who have suffered misfortune or unexpected setbacks and, on many occasions, it works in tandem with the BBA which has significantly greater funds and which is also able to help an applicant’s dependants. Perhaps the most crucial distinction is that whereas the BBA, by its objectives, can only help those who have at some stage been in practice, the MHT’s sole requirement is membership of our Inn. It is against this background that the MHT has set about changing its philosophy and approach over the last few years. It was once thought that the collapse in legal aid would, among other things, lead to a surge in applications among older members of the Inn. In the event and happily this has not occurred and it was amongst students and those in pupillage that need was seen to be arising. The MHT is not and never can be merely a bank of last resort for those who have mismanaged their financial affairs but it can and has stepped in where, for example, a student had relied upon a relative’s support to fund part of his or her education and that relative had fallen ill or lost the means to help. A loan and sometimes a grant can fill

Sir Edward Marshall Hall (1858–1927) Recorder of Guildford, British School

the funding gap and a professional life may be saved. Equally the Committee has become conscious of the challenges facing those who have gained a pupillage but where the pupillage award is hardly enough to support living expenses, in what is the most important period of any barrister’s professional life. Together with the Education and Training Department, the MHT is now offering a number of awards to those who can show they are needy and deserving. This is an exciting new strategy and one that, it is possible to think, Marshal Hall would have fully approved. Curiously the wheel has come full circle in that the earliest minutes of our committee are devoted to such a use of his legacy.

“ …the trust did not come into existence until the late 1960s following the death of his only daughter; the simple object of its funds is to help needy members of the Inner Temple.” This change of thinking comes as older members of the Committee, including myself as Chair, give way to some new, younger and enthusiastic members of the Bar and a new Chair, Jonathan Waite QC. I would however like to place on record our gratitude to Master Brown (The Rt Hon Sir Stephen Brown GBE) and Master Beldam (The Rt Hon Sir Roy Beldam), two inspirational figures. Both served with extraordinary courage in the Second World War and were distinguished members of the Bar and Judiciary. Notwithstanding the demands upon their professional time, they sat on the MHT for more years than they perhaps care to remember. Their sense of decency, good humour, innate generosity and wisdom made it a privilege to sit beside them.

Tom Shields QC

EDUCATION & TRAINING # E

The Inner Temple Yearbook 2017–2018

Education for the Bar

EDUCATION FOR THE BAR By Fiona Fulton, Director of Education

It has been another extremely busy year for the Education and Training Department, the Education and Training Committee, chaired by Master Levitt, and all the committees and members dedicated to the Inn’s core function of education and training. The following pages outline just some of this year’s education and training activities as well as forthcoming projects. The Inn was delighted this year to be ranked 35th amongst the top 50 employers on the UK’s first ever index of employers acting to improve social mobility. Congratulations are due to the Outreach team and Outreach Committee and to the very many member volunteers who participate in our outreach programmes for school and university students. Whilst this recognition is gratefully received, there is still much more to be done in widening access to the profession, and the Inn will continue to work with relevant partners to develop its programmes, including the flagship Pegasus Access and Support Scheme.

“Education and training opportunities” and “scholarships” were again identified in the annual survey of new student members as the two most important factors affecting a student’s decision to join this Inn. Financial assistance is an important factor in widening access, and Inner Temple continues to offer generous scholarships to the most able students. The vast majority of our scholarships are means-tested to decide the financial level of the award. This year, the Inn received the highest number of applications ever for both the BPTC and GDL scholarship rounds and continues to attract the highest number of applicants of all four Inns. Thanks are due to the Scholarships team, Scholarships Committee and particularly to those members who dedicate time to interviewing candidates – a significant task given that the Inn interviews every eligible candidate. Turning to legal education and training, the BSB continues its Future Bar Training review, most recently focussing upon the Inns’ requirements in the Bar training rules (admission, qualifying sessions, pupillage training and student conduct), assessing the extent to which these requirements remain necessary and proportionate in the light of the BSB’s Professional Statement and, where they remain necessary, considering the governance arrangements that will ensure appropriate regulatory oversight by the BSB. The BSB envisages signing a memorandum of understanding with the Inns to clarify the respective roles and responsibilities. The BSB has stated that it will be consulting later this year on new rules for future Bar training and will be developing an authorisation framework, which will set out the requirements and process for any future training provision to be authorised by the BSB. The four Inns continue to explore their potential involvement in delivery of the proposed Part 1/Part 2 BPTC course. A detailed proposal will be considered by the Inns in due course with a view potentially to seeking authorisation from the BSB to deliver the course, via the Inns of Court College of Advocacy (ICCA), using fit-for-purpose training facilities within the Inns. 50

Inner Temple continues to develop its qualifying sessions programme and pupils’ advocacy programme, enabling students and pupils to learn from practitioner members and other experts the skills, knowledge and attributes required by a barrister at the point of authorisation (as set out in the BSB’s Professional Statement). Further, the four Inns are currently finalising a common qualifying sessions framework and quality assurance system to provide a level of consistency across the Inns, whilst retaining a great degree of flexibility. Inner Temple has led the way in developing qualifying sessions and pupils’ advocacy training which provide relevant skills and knowledge, and we will continue to develop new sessions to meet the needs of our student and pupil members. Thanks are due to our dedicated Qualifying Sessions Committee and Advocacy Training Committee, as well as the members who give up countless evenings and weekends to train our students and pupils.

“ The Inn is immensely grateful to all its members who volunteer for our education, scholarships and outreach programmes.” Whilst the BSB removed the requirement this year for established barristers to complete a minimum number of accredited CPD hours, barristers are still required to determine their own professional training needs in any given year and undertake training to meet those needs. The Inn is committed to providing training for established practitioners – current programmes include new practitioner training, pupil supervisor training and the national Advocacy and the Vulnerable barrister training. However, the Inn is determined to do more and is exploring how it can devise and develop wider education and training, both online and face-to-face, from which more experienced barristers would benefit. As always, the Inn is immensely grateful to all its members who volunteer for our education, scholarships and outreach programmes. With their ongoing support, and the support of new volunteers, the Inn will continue to do everything it can to meet the evolving needs of those training for the Bar through to established practitioners. If you would like to volunteer to assist with any of our programmes, please do get in touch.

Education & Training

The Inner Temple Yearbook 2017–2018

The Education and Training Team

EDUCATION AND TRAINING TEAM POLICY, STUDENT ADVOCACY WEEKENDS, CPD AND PUPIL SUPERVISORS Fiona Fulton Director of Education 020 7797 8240 ffulton@innertemple.org.uk

SCHOLARSHIPS AND BPTC STUDENT ACTIVITIES Eamonn O’Reilly Scholarships and Students Manager 020 7797 8210 eoreilly@innertemple.org.uk

Julia Armfield Education Co-ordinator and Assistant to DoE 020 7797 8207 jarmfield@innertemple.org.uk

Georgina Everatt Scholarship and Students Co-ordinator 020 7797 8211 geveratt@innertemple.org.uk

SCHOOLS, UNIVERSITIES, ACADEMICS AND RESEARCH Struan Campbell Outreach Manager 020 7797 8214 scampbell@innertemple.org.uk

CALL TO THE BAR, PUPILS AND NEW PRACTITIONERS David Miller Professional Training Manager 020 7797 8209 dmiller@innertemple.org.uk

Daisy Mortimer Outreach Co-ordinator 020 7797 8262 dmortimer@innertemple.org.uk

Kerry Upham Education Co-ordinator 020 7797 8213 kupham@innertemple.org.uk

Education and Training Department, Treasury Building, Inner Temple, London EC4Y 7HL (office situated at 2 King’s Bench Walk) Tel: 020 7797 8208

www.innertemple.org.uk www.twitter.com/TheInnerTemple www.facebook.com/TheInnerTemple

The Inner Temple Yearbook 2017–2018

Outreach Programme

OUTREACH PROGRAMME In 2018, the Inner Temple will be celebrating the 10th anniversary of its Schools Project, which was established in 2008 with the aim of ensuring that all students, regardless of their background, are aware of the opportunities available to them at the modern Bar and to raise aspirations towards the professions more generally. As the Inner Temple approaches this 10-year anniversary, it is an opportunity to reflect upon the development and growth of its outreach work, which has expanded from the Schools Project to a wide range of programmes including the Pegasus Access and Support Scheme (PASS), which is supported by 70 chambers. Over 2000 young people now interact with the Inner Temple each year. Over 100 students applied for 45 places on PASS this year, the highest number since the scheme was started. The valuable hours that members of the profession give up to support the Inn’s outreach work has been recognised this year. For its actions on improving access to the profession, the Inner Temple was rated 35 of the top 50 employers in the UK’s first ever Social Mobility Index.

The Index is a joint initiative between the Social Mobility Foundation and the Social Mobility Commission, in partnership with the City of London Corporation. It ranks Britain’s employers for the first time on the actions they are taking to ensure they are open to accessing and progressing talent from all backgrounds, and it showcases progress towards improving social mobility. Research has consistently shown that people from more affluent backgrounds take a disproportionate number of the best jobs and that employers tend to disproportionately employ graduates who went to private schools and elite universities. David Johnston, chief executive of the Social Mobility Foundation, said: “All the top 50 firms in the Social Mobility Employer Index should be applauded for the progress they are making towards ensuring that everyone has the opportunity to get in and get on, regardless of their background.

A panel of barristers discussing life at the Bar with students

A report from the Sutton Trust and the Boston Consulting Group entitled The State of Social Mobility in the UK, July 2017, underlines why more work is needed in improving access to the professions. It stated that “in an increasingly competitive job market, unpaid internships and ‘soft skills’ have become more important to securing a top job, benefiting those from wealthier backgrounds”. If the profession is to be diverse and have the most able barristers, it needs to shine a light on people who might be overlooked or under-represented. That is why, as the Inner Temple approaches its 10th year of social mobility and access work, it must continue to learn from others how to best develop its outreach programmes to improve access to the profession. If you wish to support us by volunteering to help with outreach activities or by encouraging your chambers to join PASS, please contact the Outreach team. FORTHCOMING EVENTS Police Liaison Scheme Reception September 2017 Law Fairs on every circuit October to November 2017

“While no one firm has cracked the issue and there is still progress to be made, they should be congratulated both for having prioritised social mobility and for being prepared to have their processes and practices independently scrutinised.”

Insight Evening – Cambridge October 2017 Insight Evening – London October 2017 Insight Evening – Bristol October 2017 Insight Evening – Oxford October 2017

The Rt Hon Alan Milburn, chair of the Social Mobility Commission, added: “Improving the UK’s dismal social mobility record requires new action by employers and not just governments. It is very welcome that more employers are changing their workforce strategies to ensure they don’t lose out on talented people from less privileged backgrounds. The top 50 are paving the way and I thank them for their efforts. Where they are leading, I hope others will follow.”

Insight Evening – Durham November 2017

Whilst the Inn appreciates this recognition of its contribution to widening access, it is important to remember that there is still much to do. Recent research by the Sutton Trust and Ipsos MORI indicated that “social mobility has been largely stagnant in the UK for decades and, as the issue has grown in the public consciousness, there appears to be a growing pessimism”.

Prospective Students’ Question and Answer Day June 2018

Schools Project Events November 2017 Dinner for Legal Academics February 2018 Dinner to the Universities March 2018 Schools Project Events March and April 2018 Dinners for Legal Academics April and May 2018 Dinner for Academic Fellows May 2018 PASS Residential Course June 2018 COMBAR Scholars Reception June 2018 Insight Evenings October 2018 Schools Project Events October 2018

Education & Training

The Inner Temple Yearbook 2017–2018

SCHOOLS PROJECT Each year, the Inner Temple Outreach team runs a series of day-long seminars for AS and A-level students from schools across the country. Several of these days are run as part of the Pathways to Law programme, a scheme designed to enable high-achieving state-school students to access law faculties and the legal professions. Over the last academic year more than 400 students have attended these seminars, and since the project was established in 2008, more than 1,500 students have taken part. The aim of our Schools Project is to enable students from a wide range of socio-economic backgrounds to learn about life at the Bar in an engaging and interactive way, and to raise their awareness of the opportunities available to them through the modern Bar. We understand that the Inner Temple can play a critical role in developing students’ understanding of the Rule of Law, and has a responsibility to ensure that students receive accurate and helpful careers advice so that they can make informed decisions before they embark on their journeys to the Bar. In addition to the Pathways to Law programme, which is managed by the Sutton Trust, students come to us through our partnerships with the Black Lawyers Directory and Pure Potential. These partners also run social mobility initiatives designed to assist young people attending state sixth forms in accessing higher education and the law.

“Over the last academic year more than 400 students have attended these seminars, and since the project was established in 2008, more than 1,500 students have taken part.”

The feedback we have received from students who have attended Schools Project events has been overwhelmingly positive. They have told us that spending the day at the Inn with practising barristers has humanised the Bar for them as well as developing their understanding of the work that a barrister does. They have also told us that the Schools Project has demystified the profession for them and shown them that it is accessible to individuals from all educational and social backgrounds, not just a select few. One student told us: “Before attending, I thought the Inn was old-fashioned and was worried about inclusivity and diversity. I was very pleased with the range of backgrounds and specialities of the barristers and how they were able to relate to us.” Whilst another said: “I thought a barrister was someone I could never be. However, this seminar has shown me that I am capable of achieving it.” We are delighted that the project has had such a positive impact on these students and has encouraged them to pursue their ambitions. We would like to thank everyone who has volunteered at a Schools Day over the last year and we are very much looking forward to welcoming more visiting students to the Inn this year.

The seminars at the Inner Temple begin with an overview of the role of the Inn and of the journey an individual might take to the Bar, as well as information about the scholarships available for students undertaking the GDL and BPTC. After lunch, students have the opportunity to engage in a Question and Answer-style panel session with several practising barristers, judges and BPTC students who explain their own personal journeys to the Bar and answer questions that the students have about the realities of daily life as a barrister. They also offer students advice on their CV writing and their application and interview skills. After the panel sessions, students are separated into small groups led by two volunteer barristers who run a series of case law exercises for them and then a plea in mitigation exercise, which gives the students a chance to try on wigs and gowns and to practise their advocacy skills.

The Inner Temple Yearbook 2017â&#x20AC;&#x201C;2018

Pegasus Access and Support Scheme (PASS)

PEGASUS ACCESS AND SUPPORT SCHEME (PASS)

Students chat during Question and Answer Day

In 2012, the Inner Temple launched the Pegasus Access and Support Scheme (PASS) to help ensure that students with the capability and determination to pursue a career at the Bar have the opportunity to undertake minipupillages in barristersâ&#x20AC;&#x2122; chambers, regardless of their backgrounds and personal networks. This year, 45 students have taken part in the scheme, following a record number of applications, and for the first time the scheme also included a two-day residential course. Mini-pupillages are an excellent way for a future barrister to access accurate information about the profession because the students see the day-to-day life of practising barristers, and can ask them questions in an informal environment. Securing mini-pupillages is notoriously competitive with thousands of students applying for mini-pupillages in chambers each year. There are some students who do not feel that they have sufficient connections with the Bar to feel confident in approaching chambers directly for these opportunities. Others are concerned about the financial implications of the travel and accommodation that might be required to complete a mini-pupillage. 54

The aim of PASS is to address these barriers and concerns by enabling successful applicants to undertake a mini-pupillage with one of our 70 partner chambers, as well as offering them the opportunity to attend a variety of Inn events and, from this year, a residential skills course. Our partner chambers offer the mini-pupillages on the same terms as their existing placements but the Inner Temple covers the travel and accommodation expenses of participating students to ensure that personal finances are not a barrier to accessing such work experience. 54 per cent of students on the scheme have indicated to us that this financial support was essential for them to undertake their mini-pupillage. This year, PASS included a two-day residential course for participating students, held here at the Inn and featuring workshops on how to build a legal CV, effective networking techniques, panel sessions on life at the junior Bar, resilience skills training and advocacy sessions. The residential course followed on from our annual Question and Answer Day for prospective members, which perfectly set the scene for two more days of learning and development. Our aim was for the PASS students to enjoy a well-rounded programme that would equip them with new skills, from both the residential course and their mini-pupillages. The students went away filled with confidence and knowledge about a

Education & Training

The Inner Temple Yearbook 2017–2018

career at the Bar, which they may not otherwise have been able to access. The course also gave them the opportunity to mingle with each other, discuss their studies and ambitions, and compare notes on their mini-pupillages. The feedback received from the students on PASS this year has been overwhelmingly positive. One told us that “…the whole experience was great and I have PASS to thank for that” and added that she had been nervous about attending her mini-pupillage but found all of the barristers in chambers to be friendly, welcoming and “just like any other person”. Another student told us that all of the barristers she met during her mini-pupillage and at the residential course were supportive and helpful, and encouraged her to continue her journey to the Bar. Another PASS student commented that “I have taken home so much knowledge and advice from this residential, as well as a new network of barristers and judges who I know will be of great support, that I can confidently say that these last few days have played a pivotal role in the progression of my career”. We were delighted with the success of the course, which for the Outreach team was the first of its kind, and we are very much looking forward to running it again next year. We would like to thank all of the volunteers who generously gave up their time to support PASS and our partner chambers who have offered mini-pupillages.

PASS students listening to a talk

The Inner Temple Yearbook 2017–2018

University Bar Societies

UNIVERSITY BAR SOCIETIES By Lily Walker-Parr, President, Bristol Bar Society Each year, Inner Temple provides funding and support to Bar Societies at universities across England and Wales. Lily WalkerParr, President of the Bristol Bar Society, explains the work of the Bar Society and how it has been supported by the Inn. Since 2010, the Bar Society at the University of Bristol has provided a wealth of information about the BPTC and beyond to aspiring barristers to help them on their journey to the Bar. This year alone, with Inner Temple’s support, the Society hosted 45 events focussing upon three strands which are considered essential for students aspiring to become successful barristers: networking, advocacy and careers advice. Networking opportunities facilitate meetings between practitioners and students in the hope of countering any preconceived reservations about the profession. These events have included socials and a 100-guest networking dinner with members and practitioners from across the country. With the help of Inner Temple’s sponsorship, the Society was able to upgrade to a larger and more central venue for this dinner and increase participation.

To foster advocacy skills, the Bar Society offers a range of workshops and competitions. Workshops are an opportunity to learn by example and we were extremely fortunate to hear from Master Alastair Hodge (5 Essex Court) and Nicholas Pointon (St John’s Chambers). BPTC providers also host vocational advocacy competitions, challenging students to develop their advocacy to the standard expected of a BPTC student. In addition to offering traditional mooting opportunities, the Society hosts speed moot competitions to encourage students to think on their feet, and judicial review moots to run alongside first-year students’ public law modules. Finally, mock trials offer a simulated courtroom experience – complete with wigs and gowns, a jury and witnesses – to give our best advocates the chance to showcase their skills.

Rosa Shand, Sophie Cashell, Sophie Keegan and Sophie Tomalin, Annual Criminal Mock Trial 2017

4th Annual Networking Dinner 2016 (sponsored by Inner Temple, Middle Temple, Gray's Inn, 3PB, 4 New Square and the University of Bristol Law School)

Outreach Manager Struan Campbell presents Lily Walker-Parr with an award for Best Society for Aspiring Barristers

These activities all contribute to an ‘Advocacy Scholar Scheme’, whereby members are rewarded for improving their advocacy with the unique chance to attend an actual Qualifying Session at an Inn. In recognition of its diverse cross-subject membership, the Bar Society organises a comprehensive programme of talks each year to inform members of the route to the Bar and the different areas of practice. Alumni often lead talks on their area of work and BPTC providers and Inns are invited to update students on the current application processes for scholarships, law schools, the BCAT and pupillage. The Society also runs current awareness study groups for students with upcoming interviews. Speakers vary in both area of law and background to offer the most diverse representation of the Bar as possible. The Society is particularly assisted by the Outreach Team staff at Inner Temple who lead advice sessions on scholarship applications. As part of its diversity work, this year the Society piloted the No bar to the Bar initiative. Tunde Okewale MBE (Doughty Street Chambers and Inner Temple member) acted as our first patron, we held a panel event to discuss diversity issues, hosted a Charity Lecturers’ Moot for the Avon and Bristol Law Centre, and focussed on opportunities at the Inns: for example, access schemes. The Inner Temple’s Pegasus Access and Support Scheme (PASS) has been invaluable to many Society members who have applied throughout the year following the Inner Temple Insight Evening in October. At the LawCareers.Net Student Law Society Awards 2017, Bristol Bar Society was named ‘Best Society for Aspiring Barristers’ for the third year running and received the ‘Most Committed to Improving Diversity’ Award. This was due in no small part to the support of Inner Temple, particularly its sponsorship of the Society and the encouragement it has given to Society members from underrepresented backgrounds to pursue a career at the Bar – this has resulted in many of our members receiving BPTC scholarships.

Education & Training

The Inner Temple Yearbook 2017–2018

ACADEMIC FELLOW PROFILE By Dr David Lowe, Liverpool John Moores University In November 2013, the Honourable Society of the Inner Temple appointed me as an Academic Fellow. Knowing that this was a competitive process, I was delighted that the Inn thought me worthy of this position. One of the main advantages of becoming an Academic Fellow is the opportunity it has afforded me to attend events at the Inn and meet barristers and members of the judiciary. In doing so, I have been able to learn and keep up to date with the issues facing the Bar, as well as witnessing first-hand the ways in which barristers and judges carry out their roles and meet the challenges they have to face. Learning about the complex issues members of the Bar have to deal with has impacted my own legal research, especially in reading case reports, as I now have a greater appreciation of the ways in which decisions are reached. Another benefit of having an enhanced understanding of the practical issues faced by members of the Bar is that I am able to feed this into my teaching of law and criminal justice students. As a direct result of this, a number of my students have applied to the Inn for membership, with some being very successful in receiving Inner Temple student scholarships. As an Academic Fellow, I have frequently been invited to speak and give talks to Inn members, ranging from senior judges to pupil barristers and students on the BPTC. As a legal scholar, this provides an excellent platform via which to pass on legal research and obtain feedback from practitioners. One tip I have for Academic Fellows when discussing cases is to check if the presiding judge was an Inner Temple member. I gave a talk on the David Miranda case, related to schedule 7 of the Terrorism Act 2000, where Sir John Laws gave the leading judgment. It was a good job I agreed with his decision as I did not know he was a member of the Inn until I met him after the event! Regarding legal research, I have found the Inn’s vast library resources invaluable and the access granted to me as an Academic Fellow has certainly helped in my research and subsequent publications. Since I became an Academic Fellow, I have had a monograph on policing terrorism published and a few articles in peer-reviewed journals. The resources offered by the Inn have helped me in the writing of my latest book on terrorism law and policy, focusing mainly on the UK, the US, Canada, Australia and the EU, which is being published this autumn with Routledge.

“ As an Academic Fellow, you are treated as part of the Inn’s ‘family’.” The main benefit of being an Academic Fellow is in meeting the staff and members of the Inn, as well as fellow legal scholars. There is always a warm welcome and, as an Academic Fellow, you are treated as part of the Inn’s ‘family’. Now that I am an Associate Academic Fellow, having completed my three-year tenure, it does not mean that I have retired from the role – far from it! I will continue to remain actively involved with the Inn’s activities and assist wherever I can. I strongly recommend that my fellow legal scholars apply to become an Academic Fellow at the Inner Temple. For further details on the Academic Fellows Scheme, please contact Struan Campbell – scampbell@innertemple.org.uk

The Inner Temple Yearbook 2017–2018

Academic Fellows

ACADEMIC FELLOWS Established in 2010, the Inner Temple Academic Fellowship Scheme aims to recognise the outstanding contribution of legal teaching and research of early to mid-career academics to the Bar of England and Wales. Working closely with universities across England and Wales, the scheme also seeks to demystify the profession for prospective student members by building strong ties between the Bar and legal academia. During their three-year tenure, Academic Fellows are variously invited to give lectures, to participate in residential weekends and other qualifying sessions, and to attend social events. In turn, we support, as much as we can, their research endeavours. We were delighted to welcome four new Academic Fellows this year, each of whom we are sure will play a key role in the Inn’s educational and outreach programmes:

DR VANJA HAMZIĆ Vanja Hamzić is a senior lecturer in legal history and legal anthropology at the Faculty of Law and Social Sciences, SOAS, University of London. He holds two first-class honours degrees from the University of Sarajevo, an LLM with distinction from the University of Nottingham and a PhD from King’s College London. He has worked as an activist and researcher with various international and civil society organisations across Asia and Africa. Vanja is a co-founder and former co-chair of the Centre for Ottoman Studies at SOAS and a member of many other SOAS research centres. He is also a 2016-17 member of the School of Social Science in the Institute for Advanced Study at Princeton.

gender-variant West Africans in 18th century Senegambia, Benin, Angola and colonial (French and Spanish) Louisiana.

Vanja’s legal, anthropological and historical research primarily revolves around human subjectivity formation and insurrectionary vernacular knowledge, with the principal fieldwork sites in Pakistan, Indonesia and West Africa. He also specialises in Islamic legal traditions. His current project investigates the all-but-forgotten life worlds of the enslaved

Insa is interested in bringing anthropology into dialogue with criminology, legal theory and socio-legal research. She is currently completing a book on the relationship between punishment, democracy and politics for Oxford University Press. Insa’s next research project is concerned with cuts to legal aid and the implications for access to justice in the UK.

Master Treasurer with Dr Emma Jones, Dr Yue Shuang Ang and Dr Insa Koch

DR INSA KOCH Insa Koch joined the LSE as an assistant professor in law and anthropology in 2014. Prior to joining the law department, Insa trained as a lawyer and an anthropologist at LSE and completed a DPhil at the University of Oxford. She worked as an LSE Fellow in the department of Anthropology for two years. Insa has been the recipient of a number of grants, from the Wenner-Gren Foundation amongst others. She has won several teaching prizes at the LSE.

Education & Training

DR YUE SHUANG ANG Yue S Ang is a senior lecturer in law at Oxford Brooks University. She joined the School of Law in September 2012. Yue was previously a visiting lecturer at the University of Birmingham. She was awarded a four-year scholarship by Birmingham Law School, to read law at doctoral level and teach law at LLB level as a postgraduate teaching assistant. She received her PhD in 2013.

The Inner Temple Yearbook 2017–2018

This year’s four new Academic Fellows join our current cohort of Fellows: 2015-2018 Dr Alison Lui Liverpool John Moores University Dr Adaeze Okoye Canterbury Christ Church University Dr Tarun Khaitan University of Oxford Dr Ruvi Ziegler University of Reading

In 2007, she earned a master’s degree in Law (LLM) with merit from University College London, University of London (UCL) and in 2006, she earned a bachelor’s degree in Law (LL B) with first-class honours from University of Westminster. Yue specialises in legal theory and researches into outsourcing abuses, the socio-economic rights of labours, corporate social responsibility and corporate governance, contemporary legal theory, social philosophy and normativity. Yue was a visiting scholar with the Vulnerability and the Human Condition Initiative at Emory University, Atlanta, US. She is a member of the Daughters of Themis International Business Scholars Network, University of Oslo, Norway, and a member of the Critical Approaches to Research Law Group (School of Law, Oxford Brookes University). DR EMMA JONES Emma joined the Open University’s School of Law as a lecturer in law in December 2014. Emma’s first degree was a BA (joint hons) in law and politics. She then went on to complete the LPC and qualified as a solicitor in 2001. After several years working in construction law, Emma retrained as a teacher and has taught in both further and higher education.

2014-2017 Dr Yvonne McDermott Rees Swansea University Dr Colin King University of Sussex Dr Shazia Choudhry Queen Mary University of London Dr Dimitrios Giannopoulous Brunel University London ASSOCIATE ACADEMIC FELLOWS On completion of their three-year tenure, Academic Fellows are then appointed Associate Academic Fellows of the Inn. We are delighted that this growing cohort of Associate Fellows continues to contribute to the Inn’s education and outreach activities. 2013-2016 Dr James Goudkamp University of Oxford Dr Barbara Lauriat King’s College London Dr Maksymilian Del Mar Queen Mary University of London Dr David Lowe Liverpool John Moores University 2012-2015 Per Laleng University of Kent Dr Eddie Bruce Jones Birkbeck University of London Dr Paul Wragg University of Leeds

Emma has an MA in Politics and Contemporary History and a MSC in Construction Law and Arbitration. She is a member of the Association of Law Teachers’ Executive Committee and a member of the Society of Legal Scholars’ Sub-Committee on Legal Education. She is co-convenor of a stream on law and emotion at the Socio-Legal Studies Association’s Annual Conference and co-creator of the UK-based Law and Emotion Network.

Dr Jo Braithwaite London School of Economics

Emma’s PhD was on the role of emotion in undergraduate legal education. She is currently completing a monograph for Routledge based on this. Her main areas of research focus on the role of emotion and well-being in both legal education and the legal profession. She is currently carrying out empirical work on law student well-being and emotional competencies amongst solicitors.

2010-2013

2011-2014 Dr Ronan McCrea University College London Joanna Miles University of Cambridge Dr Andrew Scott London School of Economics Professor Christian Twigg-Flesner University of Warwick

Professor Andrew Francis University of Leeds James Lee King’s College London Dr Catherine MacKenzie University of Cambridge Professor Iyiola Solanke University of Leeds

The Inner Temple Yearbook 2017–2018

Inner Temple Scholarships

INNER TEMPLE CPE/GDL SCHOLARSHIP WINNERS 2017

INNER TEMPLE SCHOLARSHIPS

Princess Royal Scholarships: Vedantha Kumar, William Bordell

Major Scholarships: Jack Barber, Hannah Cox, Andrew Mackersie, Casey Swerner Exhibitions: Alice Aubrey-Fletcher, Katharine Bailey, Alexander Bryant, Eleanor Foreman, Harry Garside, Gemma Gould, Edward Grigg, Joshua Lynbeck, Philippa Mosley, Olivia Murphy, Rachel Nicolson, Natasha Otero-Nevitt, Blessing Park, Ruby Peacock, Sarah Pemberton, Harry Peto, Naomi Sirrs, Helena Spector, Madeleine van Oss, Laurène Veale, Daniel Whiteley

INNER TEMPLE BPTC SCHOLARSHIP WINNERS 2017 Peter Taylor Scholarship: Allan Hennessy Stephen Chapman Scholarship: Daniel Kozelko Princess Royal Scholarships: Brenda Efurhievwe, Christopher Quinn, Hossein Sharafi, Sean Summerfield, Kate Temple-Mabe Major Scholarships: Lorraine Aboagye, Kuang You Ang, Rachel Bale, Maria Lorenza Bergamasco, Jack Castle, Katie Doherty, Connor Evans, Emma Fitzpatrick, Amelia Katz, Ife Kubler-Agyemang, Georgia Lassoff, Fiona Martin, Temitayo Oguntade, Nicholas Parry, Robert Poulson, Lily Roberts-Phelps, Miguel Angel Rodriguez-Correa Henderson, Maya Thomas-Davis, Megan Tollitt, Sam Watts Exhibitions: Karolina Amstutz, Olivia Beesley, Lucy Bennett, Anna Bond, Rosalind Burgin, Paige Campbell, Joseph Carr, Govinder Chambay, Hok Kan, Jacky Cheng, Jack Cottrell, Kisha Couchman, Harry Davies, Thomas Davies, Kate Dewsnip, Tommy Dominguez, Elizbeth Drew, Sarah-Jane Ewart, William Fabbro, Thomas Faulkner, David Forster, Hannah Fry, William Goss, Barbara Green, Megan Griffiths, Marcia Hagon, Alice Hart, Leigh Hart, Lauren Hebditch, Fern Horsfield-Schonhut, Adal Ibrar, Zara Iqbal, Sarah Ismail, Fatima Jichi, Rani Kaur, Kezia Kernighan, Sofia Khan, Sima Khan, Iqra Khanom-Uddin, Bairat Lasoye, Joseph Lees, Joshua McEvoy, Meabh McGee, Joseph Meethan, Joseph Miller, Anastasia O’Brien, Joseph O’Leary, Monica Oluwole, Nadia O’Mara, Chris Ovenden, Adam Pincott, Bede Porter, Edmund Potts, Valeria Puig Sobredo, Niamh Quille, Adam Riley, Amanda Salama-Fernandez, John-Paul Saleh, Paul Schwartfeger, Arooj Sheikh, Hazel Shipp, Poppy Sparrow, Lucinda Spearman, Joshua Stamp-Simon, Jack Staples-Butler, Luke Staton, John Steel, Nicola Stouppa-Moss, Henry Thomas, Marc Tyler, Lena-Marie von Eynern, Lily Walker-Parr, Simeon Wallis, Susan Williams, Andre Williams, Peter Wilson, Samuel Yeates The Inn very generously made a total of £1,736,306 available for scholarships this year. From this fund the Inn has offered 101 awards for the BPTC, 27 for the CPE/GDL, 8 for internship awards and 8 awards for those with a minimally funded pupillage. This year, we received 393 applications for BPTC awards and 102 for the CPE/GDL. We have a policy of interviewing every eligible applicant and it was only with the very generous assistance of over 60 members of hall that we were able to do so this year. Volunteers are always warmly welcomed.

Education & Training

The Inner Temple Yearbook 2017–2018

My scholarship has made the impossible possible: without the generosity of the Inn, pursuing a career at the Bar would have been unthinkable. Yet the privilege of being the Peter Taylor Scholar means more than just financial redress: it is a vote of confidence, a thumbs-up from the Bar’s leading professionals. That the Committee put their faith in me is something I will remember throughout my career. My background is both unusual and colourful. As a blind immigrant from an Inner London council estate, the Inner Temple’s vow to open up the Bar to a diverse group of applicants, to people from all walks of life, is worth more than the financial rewards. I hope that my scholarship is testament to the Inner Temple’s desire to achieve diversification and symmetry. Allan Hennessey, Peter Taylor Scholar

Being awarded the Stephen Chapman Scholarship is both an honour and a great privilege. Inner Temple’s focus on ensuring that the best and brightest applicants are able to succeed, regardless of their personal wealth or background, is truly commendable. As an individual with limited financial resources, the Inn’s support means that I can fully engage with legal life in London, and complete the BPTC without persistent funding concerns. The selection process, which involved enjoyable discussions of a broad range of legal issues, was challenging and rewarding in equal measure. I am incredibly grateful that I have been awarded this scholarship, and wish to express my thanks to Inner Temple for its support in my endeavours.

Daniel Kozelko, Stephen Chapman Award

Several weeks before my scholarship interview, I was given the following general advice: “You might not be the most eloquent person in a room and it is best to assume that you are not the smartest. The only thing you can do is ensure that you are as prepared as you can be.” Preparing for the application was beneficial in itself and, beyond the initial trepidation, having the opportunity to present myself to members of the profession I hope to join was extremely valuable. To be awarded a scholarship is therefore a great relief. The award alleviates the financial concern of funding my BPTC and, more significantly, indicates that those best placed to assess my suitability saw in me some of the traits necessary to practise as a barrister. Sam Watts, Major Scholar

Receiving a scholarship has made becoming a barrister possible for me. Although I may have been able to access loans and other funding, it has taken a huge weight off my shoulders. I have been able to focus on my studies and not worry about debt. Almost more important than the money, however, is the vote of confidence. The journey to becoming a barrister is long and tough. It is also very competitive and you have got to get used to being rejected. So, to be given assurance from a panel of four respected barristers and judges that ‘you’ve got what it takes’ is very reassuring. Amanda Salama-Fernandez, Exhibition Award and the Elfreda Edwards Scholarship

The Inner Temple Yearbook 2017–2018

Scholarship Winner Profile

SCHOLARSHIP WINNER PROFILE By Grace Capel, Garden Court Chambers

It was only after completing my undergraduate degree in English that I decided I wanted to pursue a career at the Bar. I knew that I wanted to specialise in immigration and asylum law and do publicly funded work but the huge cost of training was a disincentive, especially when I had already accumulated a fair amount of student debt. My research led me to the websites of the Inns of Court, where I learned that scholarships were available, including to those who might otherwise struggle to afford to train as a barrister. I knew little about the Inns of Court at that point and chose to apply to Inner Temple for a scholarship because every applicant was guaranteed an interview. I was also interested that the first woman to be called to the Bar (Ivy Williams in 1922) was a member of Inner Temple.

On the day I attended my scholarship interview, I was struck by the warmth and enthusiasm of the Education and Training Department. The strength of their support for students and junior barristers, from which I still benefit, is what I always comment on when students ask me which Inn they should join. At the time of my scholarship interview, I hadn’t yet started the GDL and I was concerned that my lack of legal knowledge might affect my chances of obtaining a scholarship. I quickly realised that the interview process was directed at discovering how you think, not how much you know. The questions from the panel were challenging, as I had expected, but my impression was that they wanted to give me an opportunity to do as well as I possibly could. Soon after the interview, I was informed that I had been awarded a generous exhibition toward my GDL fees. I was guaranteed the same amount toward my BPTC fees and I was also awarded a Duke of Edinburgh Entrance Award. It is difficult to describe the sheer relief that I felt knowing that a large proportion of the cost of my legal training would be paid for.

I might not otherwise have been able to afford to qualify as a barrister at all; certainly my route to a qualification would have been much longer and more difficult. In addition to the financial support I received, I took advantage of the many events run for prospective pupils by the Education and Training Department. At the most recent Pupillage Advice Evening at the Inn, which I attended this time as a barrister offering advice to prospective pupils, it was brilliant to see not only my former pupil supervisor but no less than three of her former pupils there. Immediately prior to starting pupillage, I volunteered at the Refugee Advocacy and Support Project (‘RASP’), a charity providing specialist pro bono legal advice to refugees in Istanbul. I was funded to do this work by a Sir Joseph Priestly Internship Award from the Inn, which allows students and newly qualified barristers to pursue projects that will widen their experience and enhance the skills that they can bring to their practice. I have since done similar pro bono work with refugees in Greece and am lucky to be at a set of chambers where this is supported. I am now two years into tenancy at Garden Court Chambers, where I specialise in immigration and asylum law. If I had not received assistance from the Inn with the cost of training, I would not have been in a financial position, upon obtaining tenancy, to start a practice that involves almost exclusively publicly funded work. For the last two years, I have been involved in shortlisting and interviewing prospective applicants for pupillage. I am also part of the Young Legal Aid Lawyers’ mentoring programme, which matches law students interested in publically funded work with practising barristers. So many talented people are committed to this type of work, despite the financial challenges it poses. I would particularly encourage them to apply to the Inner Temple for a scholarship.

"I am now two years into tenancy at Garden Court Chambers, where I specialise in immigration and asylum law. If I had not received assistance from the Inn with the cost of training, I would not have been in a financial position, upon obtaining tenancy, to start a practice that involves almost exclusively publicly funded work. "

Education & Training

The Inner Temple Yearbook 2017–2018

STUDENT SCHEMES Each year, the Inner Temple offers its student members the chance to take advantage of schemes designed to enhance their skills and develop legal work experience. THE MARSHALLING SCHEME The Marshalling Scheme offers BPTC students an opportunity to sit with a judge for a few days and discuss their cases in detail. This scheme is open to applications from all current BPTC students and is a valuable chance to observe court proceedings from the perspective of the judiciary. Student participants have regularly commented that this unique view of court life provides detailed insight into how the judiciary operates, how judgments are reached and the influence of barristers in this process. There are a variety of placements available each year all around the country.

“My time spent with His Honour Judge Greene at Minshull Street Crown Court in Manchester was incredibly engaging and educational. Having observed the pace and style of criminal proceedings from behind the advocates on my mini-pupillage, the opportunity to witness them from the bench has provided me with a new perspective. Judge Greene gave me insight into the judicial decision-making process, which will be invaluable to me in the development of my own advocacy skills. It was a fantastic learning opportunity, as Judge Greene took on the role of tutor and our discussions led me through the ways in which different factors are taken into consideration and sentencing guidelines are used as a tool. I found this thoroughly engaging and gained a much greater understanding than I would have done through simple observation.

MENTORING SCHEME The Mentoring Scheme pairs the Inn’s student members, including those studying the GDL, with barristers practising in a discipline that matches each student’s interest. The Inn’s pool of generous volunteers covers nearly every area and method of practice, from crime to commercial and from self-employed to in-house counsel. MOCK INTERVIEW SCHEME This scheme offers an opportunity for students to practise their interview technique in front of an experienced barrister ahead of pupillage interviews. Participants have found this to be a very beneficial and rewarding experience. POLICE LIAISON SCHEME The Inner Temple partners with police stations to allow BPTC students to shadow police officers over an eight-hour shift. The scheme is reciprocal and, in return for their generosity in welcoming our students to their stations, the Inn facilitates a mock trial for our contacts in the police, demonstrating the workings of a criminal trial, and hosts a thankyou drinks reception each year.

“Witnessing submissions by advocates has also given me a greater appreciation of the efficacy of different styles of advocacy. It was interesting to observe the use of formal and persuasive styles in relation to distinct stages in the trial process, as well as the case management conduct. I observed the relationship between the bench and the advocates, which is such an essential part of the process. My experience very much reinforced the tenet ‘know your judge’. “All of the court staff were welcoming and friendly, and I thoroughly enjoyed the lively conversation with the judges over lunch. I am very grateful to have had the opportunity to gain this new perspective on the criminal justice system and many thanks must go to Judge Greene.” Emily Ross, BPTC student, 2016–17

The Inner Temple Yearbook 2017–2018

Qualifying Sessions

QUALIFYING SESSIONS Inner Temple qualifying sessions complement students’ academic and vocational education and form a bridge to pupillage. The sessions equip students to undertake the next stage of training and ensure that they are fit and proper to serve the public as barristers by meeting and learning from practitioners and experts. Inner Temple qualifying sessions provide knowledge and skills in the following areas: • Ethics, standards and values • Advocacy skills • Legal knowledge • Professional development

PRESENTATIONAL SKILLS COURSE Taught by professionally trained actors and vocal coaches, this qualifying session gives students the opportunity to develop skills such as voice projection, posture and awareness. EDUCATION DAY This qualifying session is specifically tailored for students studying at providers outside London. Sessions include ethics, advice on pupillage applications and the pitfalls of the early years of practice.

Focus is firmly placed on developing the knowledge and skills necessary to practise as a barrister. In no other profession is there such a structured and regular meeting of the most senior with the most junior of practitioners, with the former giving their time pro bono.

LEGAL RESEARCH TRAINING Taught by members of the Library team, this qualifying session provides students with the skills to research UK cases and legislation, to decipher legal abbreviations, to understand the need to use commentary sources, and to be able to keep up to date with developments in the legal world.

All BPTC students are required to complete 12 qualifying sessions in order to be called to the Bar. There is no limit to the number of qualifying sessions a student may complete during the BPTC or in any particular term, but qualifying sessions are only valid if they are completed in the five years leading up to a student’s Call Night.

STORYTELLING AND IMPROVISATION TECHNIQUES IN ADVOCACY Taught by professional trainers, this qualifying session uses drama-based improvisation and storytelling techniques to teach students more effective ways of communicating in all aspects of their role as advocates.

STUDENT ADVOCACY WEEKENDS Each year, the Inner Temple hosts three student advocacy weekends, each accredited for three qualifying sessions. These weekends provide students with the opportunity to explore a particular legal topic, develop their advocacy skills, and benefit from the advice of experienced practitioners. Recent weekends have focused on the topics of hearsay, prisons and assisted dying.

MOOTING MASTERCLASS Taught by Master Hodge, this qualifying session offers a masterclass in mooting skills including preparation, advocacy, timing and dealing with judicial intervention.

BPTC ADVOCACY DAYS Taught by the Inn’s advocacy trainers as well as new practitioners who have recently completed the New Practitioners’ Programme, these qualifying sessions allow BPTC students the opportunity to practise their advocacy skills in a supportive and informal environment. LECTURES These qualifying sessions allow students to hear from experts within the Inn and from academia on legal topics relevant to their studies and to a career at the Bar. The lectures are followed by a reception or dinner for students and practitioners.

Storytelling and Improvisation Techniques in Advocacy

LOCAL QUALIFYING SESSIONS As well as attending qualifying sessions at the Inn – the vast majority of which are arranged on weekends in order to allow as many students to attend as possible – BPTC students on circuit are also able to hold up to three qualifying sessions in their local area. These sessions are overseen by Masters of the Bench and senior members of the Inn who generously donate their time and expertise. The Education and Training Department supports student representatives at each provider in helping to finance and arrange these sessions, and by making contact with local practitioners who might be willing to host sessions. Thanks to enthusiastic student, barrister, judicial and Bencher volunteers, a wide variety of local qualifying sessions take place each year – including lectures, moots, pupillage workshops and advocacy training workshops.

Education & Training

The Inner Temple Yearbook 2017–2018

PURE AND SIMPLE?

ABSENT WITNESSES, FAIR TRIAL RIGHTS AND THE EUROPEAN COURT OF HUMAN RIGHTS The December student advocacy weekend explored the topic of 'Hearsay'. Angela Patrick, Doughty Street Chambers, a panellist at the weekend, explains more. One of the Cumberland Lodge panellists on absent witnesses began with a song: “Pure and simple gonna be there/Whatever it takes (I’m gonna be there).” That (fairly forgettable) work of Hear’Say provided an apt backdrop. Consideration of how a trial might comply with article 6 of the European Convention on Human Rights (ECHR) when hearsay is in play brought a more ‘Eurovision’ element to the discussion. The jurisprudence no longer attracts the level of controversy provoked at the time of R v Horncastle & Ors [2009] UKSC 14, but remains far from simple. In Horncastle, the Supreme Court disagreed with the earlier determination of the European Court of Human Rights in Al-Khawaja & Tahery v UK. In that case, the Court held that the admissibility of hearsay evidence pursuant to chapter 2 of the Criminal Justice Act 2003 was incompatible with article 6 where it included the “sole and decisive” material determinative of a conviction. Added to the arsenal of the Court’s critics, this controversy proved short-lived. In 2011, the Grand Chamber reconsidered Al-Khawaja & Tahery. It set new broad principles for the consideration of hearsay evidence (see [118]–[147], App Nos 26766/05 and 22228/06 (15 December 2011)). Broadly: a) Good reasons are needed for the admission of the evidence of an absent witness; and reasonable efforts should be made to secure attendance; b) Admission of such evidence should be a measure of last resort; c) Where a conviction is based “solely and decisively” upon hearsay, defence rights will be unduly restricted. This will not automatically result in a breach of article 6; d) The proceedings must be subject to “the most searching scrutiny”. This will involve an examination of the overall fairness of the proceedings, specifically whether there are “sufficient counterbalancing factors” including “strong procedural safeguards”. The Grand Chamber revisited these principles in Schatshaschwili v Germany, App No 9154/10 (15 December 2015): a) The absence of a sufficiently good reason for non-attendance will not be conclusive of the fairness of a trial but an important factor to be considered; b) Fairness must be closely examined where hearsay evidence carries “significant weight” and its admission might have handicapped the defence, not only if “sole and decisive”; c) The more weighty and significant the hearsay evidence, the more significant the counterbalancing safeguards must be.

"Whether hearsay evidence will render a trial unfair is a fact-sensitive exercise in domestic courts and at the European Court of Human Rights."

Applied carefully, the Criminal Justice Act 2003 can operate in compatibility with the ECHR. In Simon Price v UK, App No 15602/07) (15 September 2016), a witness refused to travel, witness statements were read and a conviction secured. There was no violation of article 6(1) or 6(3)(d) because a sufficiency of safeguards counterbalanced the potential unfairness in the trial (see also Seton v UK, App No 55287/10 (13 March 2016). Significantly: a) The evidence was not wholly unhelpful to the applicant against whom other evidence was available; b) Robust warnings were given by the judge consistent with the Criminal Justice Act 2003, on the weight attributable to the evidence; and c) No challenge to the admissibility of the material was made by the applicant either during his trial or his appeal. Where an overseas witness refuses to attend, the Court will look at whether the prosecuting authorities have taken all reasonable steps – including through international cooperation – to secure attendance. A failure to take sufficient steps would be relevant to the assessment, although not determinative. Whether hearsay evidence will render a trial unfair is a factsensitive exercise in domestic courts and at the European Court of Human Rights. The Strasbourg Court will examine closely the conduct of any trial. It is important to challenge the admission of the material at a domestic level if any challenge is to succeed. For prosecutors, all reasonable steps should be taken to secure the attendance of a relevant witness before hearsay evidence is considered. Safeguards for fairness should be guarded scrupulously. Where the Criminal Justice Act 2003 places discretion with the judiciary to act in the interests of justice (see, for example, in s 114(2)), if interpreted consistently with the guidance offered on article 6, a challenge is unlikely to succeed. Contrast other recent decisions, in cases where no safeguards have been implemented and repeat violations identified (see, for example, Asatryan v Armenia, App No 3571/09 (27 April 2017)). While domestic law is applied compatibly with the Human Rights Act 1998, it seems unlikely the Strasbourg Court will now second-guess the assessment of domestic judges.

The Inner Temple Yearbook 2017–2018

Law at the End of Life

LAW AT THE END OF LIFE Organised by Master Owen Davies, Fallon Alexis (QEB Hollis Whiteman) and Robin Sellers (2 King’s Bench Walk), the ‘Law at the End of Life’ student advocacy weekend, explored the many challenging legal issues surrounding assisted dying, focusing on the laws governing the end of life and the impact on the experiences of patients and relatives. Students were fortunate to hear from a distinguished panel of speakers including The Baroness Finlay of Llandaff and Master Falconer who explain below their own views on this controversial topic.

THE BARONESS FINLAY OF LLANDAFF There is much confusion in people’s minds about dying. If you’re seriously ill and want to hasten your death, you can ask your doctor to halt any treatment that’s keeping you alive. And you will not be abandoned – a doctor has a duty of care to help you die in comfort and with dignity. In other words, you have a right to die.

But that shouldn’t be confused with a right to involve someone else in bringing about your death – which is what ‘assisted dying’ (as it’s being called) means. A patient who refuses life-extending treatment isn’t expressing a suicide wish but an acceptance of death. Neither in law nor in medical ethics does treatment refusal constitute suicide. Asking a doctor to give you the means to take your life is a completely different matter. Take, for example, someone with motor neurone disease who is ventilator-dependent and ‘has just had enough’. When ventilation is stopped, with treatment in place that accords with modern guidelines, the patient will die quickly and peacefully from the underlying motor neurone disease. The so-called safeguards in the ‘assisted dying’ bills proposed are unsafe – when examined in detail, the proposals recently were rejected resoundingly by the House of Commons on a free vote by 330 to 118 votes. So let’s look at what has been suggested as so-called safeguards. Prognosis of a terminal illness of six months or less is guesswork. The Royal College of General Practitioners told the Mackay Committee that, when doctors try to predict death months ahead, “the scope for error can extend into years”. Oregon illustrates this – many of those supplied with lethal drugs there, on the basis of prognoses of six months or less, live for months or even years before either taking them or dying of natural causes. Assessing mental capacity isn’t a simple one-off. Cognitive impairment (often from the underlying disease or medication side-effects) and depression can be difficult to detect, especially in neurological conditions, and judgement can be skewed. Research in Oregon has shown that some patients cleared by doctors for legalised assisted suicide had actually been suffering from undiagnosed clinical depression. A doctor can’t know about pressures that go on behind closed doors. Coercion can come in many forms. Apart from external 66

pressures from family, seriously ill people can feel internalised pressures – to ‘do the decent thing’ and remove themselves as a care or a financial burden. And, once ‘assisted dying’ gets normalised, there are subtle societal pressures. Dr Theo Boer, a Dutch ethicist who was a member of one of Holland’s euthanasia review committees, has written that euthanasia is on the way to becoming a default mode of dying for cancer patients in the Netherlands. We are told by campaigners for ‘assisted dying’ that, where such practices have been legalised, patients continue to trust their doctors. Of course they do. We trust our doctors, not because the law says this or that, but because we need medical care and they’ve been judged qualified to treat us. But it’s the very trust inherent in the doctor–patient relationship, and the inevitable power-differential through the doctor’s knowledge and experience, that makes ‘assisted dying’ within medicine particularly dangerous. Doctor– patient trust rests on an implicit assumption that a doctor will always act in our best interests. A doctor who agrees to assist the suicide of a seriously ill patient risks sending the subliminal message that, in his or her professional view, death is the patient’s best outcome. The Royal College of Physicians recognised this risk when in 2009 it wrote to the Director of Public Prosecutions that “the trust afforded doctors and nurses gives their views considerable weight with their patients and the public” and warned that the involvement of doctors in assisting suicide was “open to misinterpretation”. A good doctor is more than just a diagnostician or prescriber. He (or she) must see the patient as a whole, fears and foibles as well as symptoms and scans, and guide as well as treat. Making doctors the gatekeepers for ‘assisted dying’ falsely presents it to the vulnerable patient as a beneficent and best-interests decision. It is little wonder that the Royal College of Physicians wrote that “our duty of care is to work with patients to mitigate and overcome their clinical difficulties and suffering” and that “this does not include being, in any way, part of their suicide”. Laws are more than just regulatory instruments. They send social messages. An ‘assisted dying’ law sends the message, however unintended, that if we are terminally ill, taking our own lives is a course of action to be considered. This is a road down which we would be very ill-advised to go.

Education & Training

The Inner Temple Yearbook 2017–2018

The Panel at the "Law at the End of Life" weekend, clockwise from top left: Tom Davies (Dignity in Dying), Master Peter Jackson, Master Havers, Master Falconer, The Baroness Finlay of Llandaff and Robert Preston (Living and Dying Well)

MASTER FALCONER When it comes to the end of life, our laws are simply not fit for purpose. Revolutionary in some ways, reactionary in others, we face a nonsensical system where dying people are left unable to determine how and when they die, and with no safeguards against being overpersuaded into a bad choice they did not want. At the end of life, a person can decide to refuse treatment that is keeping them alive and will even be supported by their doctors to make their passing as comfortable as possible.

is irrelevant to the question of guilt or innocence of the crime of assisting someone to commit suicide. So now the DPP decides whether a person is to be convicted of a criminal offence, with a maximum of 14 years in prison, without any of the protections of the criminal justice system. It is an outrage. And it provides no protection for the vulnerable. Under the existing law, the only investigation is after the person has taken their own life, never able to express their views to the authorities. It is so clear that the law needs to change, urgently.

For those who wish to die on their own terms, rather than from suffocation, from dehydration, from starvation, the options end there. The ultimate decision is not in the hands of the individual, but of the doctor. Since 1961, our laws have forbidden helping another person to end their own life. This has been justified ever since as a necessary protection for vulnerable people, but we can create a balance that empowers a dying person and protects others. The lessons from overseas demonstrate this. Perhaps more importantly, the situation in this country demonstrates why our existing law is so in need of reform. Since 2010, prosecuting authorities have officially recognised that the blanket ban on assisted dying does not command public support. Its strict application cannot be sustained. Instead, a set of guidelines outline where it will be in the public interest to prosecute someone who has assisted a suicide. In short, those guidelines provide that a well-meaning person who helps another to end their life at their request, who does so for compassionate reasons, will not be prosecuted. A doctor who assists will be prosecuted. Those who help the person they love to die in Switzerland probably won’t be prosecuted, as long as they have good motives, but they will be investigated. The investigation by the police is invariably conducted with sensitivity by the police, and is invariably hell for the family. And if there is a prosecution, the defendant will have no defence. The motive for helping the person to take their own life

In essence, by attempting to make sense of a broken law, we have elevated the DPP to an investigative judge, hamstrung by the inability to question his or her key witness. Imagine instead that an investigation happened up front with doctors, and a judge making the final decision about whether to allow someone to be assisted to take their own life as they are dying, where the main voice in the investigation would not be the relatives who in so many cases would have done their best by the person they loved, but the person who was dying. A robust, safeguarded law would continue to do what was envisaged in 1961 and protect vulnerable people who did not wish to die, but could do so without holding dying people hostage, empowering them to choose the manner and timing of their death. A law like this is possible and achievable. We need only look to the USA, where six states have made this choice, including Oregon’s pioneering, two-decade-old Death With Dignity Act. Our closest Commonwealth cousins are grasping the nettle – Canada last year and some parts of Australia later this year. All of us will die, but only once. To get the right death for each of us, we need the right laws in place. We must be resilient enough to examine the shortcomings of our own laws and humble enough to learn from the examples of those who have forged a sensible, compassionate and safe way forward. 67

The Inner Temple Yearbook 2017–2018

Student Societies

STUDENT SOCIETIES DEBATING SOCIETY Oliver May, Debating Society President The weekly sessions in Mitre Court are undoubtedly at the heart of everything the Debating Society achieves. This year, the sessions have provided attendees access to the expert tutelage of Jake Armes, and a regular opportunity to test their advocacy skills against their peers. Outside of the Inn, the Society has engaged in a wide range of events both domestically and internationally. Over the New Year, Oliver May and Mark Taylor attended the World Universities Debating Championship in The Hague. Over nine rounds, the pair competed formidably against the world’s best debaters, but unfortunately fell just short of reaching the knockout stage of the competition.

The Hilary term saw the Society play host to a number of events. The careful supervision of Helen Ball, Alexander Maunders and Mark Taylor ensured the success of the Inner Temple Inter-Varsity Debating Competition. Of particular note, this year, for the first time, free entry was provided to teams from underfunded societies in a bid to encourage the diversity of participants. Meanwhile, in February, Jake Armes and Oliver May presented a debating masterclass at a joint Inner Temple and Lincoln’s Inn qualifying session in Bristol. Easter term provided another opportunity for members of the Society to display their talents. An invitation to HMP Wandsworth gave four Inner Templars the chance to debate against the four best participants of the Vocalise Prison

Debating Programme. Similarly, the May Mixed Dining Night once again showcased the best that the Society had to offer with the final of the Rawlinson Cup. In the Trinity term, the Society will attend the inaugural Association of Women Barristers Debating Competition, compete in and host the Inter-Inn Debating Competition and send two teams and one judge to the European Universities Debating Championship in Estonia. None of the above would have been possible without the continued support of the Inn and, in particular, the patience and guidance of Eamonn O’Reilly and Master Hodge. DRAMA SOCIETY Benjamien Smolders, Drama Society President “All the world’s a stage” is what the Bard told us. We don’t know about the world but, for us at least, Inner Temple is always a stage. For many of our members, the presence of the Drama Society is the main reason they opted for Inner Temple and we are eternally grateful for the support and creative freedom we receive each year. At Inner Temple, we are really allowed to turn the entire Inn into our stage. The year began with our new annual tradition: the improvisation night. Hosted in Mitre Court (rooms that, to those of us who have been involved in multiple plays, feel like a home away from home), the event was a huge success. After that first ice-breaker, we launched auditions for the Society’s yearly panto. This year, we moved into uncharted territory with a staging of My Big Fat Greek Panto, a pantomime loosely based on Greek drama and mythology entirely written by the Society President and VicePresident. Setting the play up with a little help from our friends in the weeks leading up to Christmas was an experience no different to any other production: exhausting but so very satisfying. With sweaty palms and trembling legs, we awaited opening night to see if the audience would go for something that came entirely from us. Lo and behold, they did! After two sold-out nights, we bowed out to a roaring crowd. After a satisfying pantomime, the Society went into its usual hibernation to allow students to focus on exams. We used this time to refurbish our website, innertd.com,

The cast of the Drama Society Pantomime

Education & Training

The Inner Temple Yearbook 2017–2018

Lady Rawlinson and Debaters beside the Rawlinson Portrait

which now looks like a website befitting our Society. If all the world’s a stage, our website is the box office. At the point of writing, we are finishing up auditions for our summer Shakespeare play, Twelfth Night. After the success of last year’s The Tempest, our Vice-President has been given full creative control, and we all believe that his passion for Shakespeare and theatre in general will result in a marvellous performance in July. MOOTING SOCIETY Eleanor Sharrock, Mooting Society President 2016/17 has been another great year for the Mooting Society. The year started out strongly with the Magna Carta Moot, with the winners of the 2016 Inter-Varsity Moot and the ESU Moot competing in a show moot. The Lawson Moot, meanwhile, offered the chance for students of all levels to compete against each other, with feedback provided to mooters by judges after each round. Judges for the five rounds were made up of a blend of students, pupils and junior and leading counsel, with the final panel made up of Master Flaux, Master Hallett, Master Hodge and Master Brougham. Running parallel to these events, the Society has also continued to run training events, giving mooters the chance to improve and develop their skills. We are lucky enough to have had a variety of impressive mooters representing the Inn in national and international competitions this year. Our Telders team came second in the national rounds and our Jessup team placed sixth. The annual Inter-Varsity Mooting Competition was held in January, with a full day of mooting for more than 20 teams from universities across the country, from Exeter to Dundee. The problem was written by our sponsors, Tanfield Chambers, and the teams enjoyed having to moot both sides of the problem throughout the day. In July, we will be hosting the final round of this year’s Inter-Inn Mooting Competition, which is being sponsored by the ELS. This year, we will be represented by Emily Quinn and Katie Williams. We wish them both the best of luck! The Society’s grateful thanks go to all the members and benchers who have provided us with vital support throughout the year. We hope to increase the opportunities available to participate in mooting competitions and training next year, and we hope you will continue to support the Mooting Society in the coming year.

INNER TEMPLE STUDENTS’ ASSOCIATION Alejandra Llorente Tascon, ITSA President The 2016/17 year has been extremely successful for the Inner Temple Students’ Association. This year has seen ITSA hosting two Pupillage Advice Evenings, a one-to-one Pupillage Application Clinic, our Christmas Carol-oke Evening, the Annual Burns Night Supper, three ‘ITSA Nights’ and our summer party: Tipples by the Thames. It goes without saying that this year has been filled with events designed to enhance the student experience with Inner Temple whilst facilitating relaxed networking opportunities and the much-needed chance to unwind from the hardships of the BPTC. Our most notable events have been the annual Burns Night Supper in January, attended by over 140 Inner Temple members and guests, as well as our oversubscribed Pupillage Clinics and Advice Evenings. The Advice Evenings gave students the opportunity to network with barristers and other pupillage hopefuls whilst also providing the opportunity to get that much-desired one-on-one feedback on application forms. I would like to extend our gratitude to all practising members of the Bar who volunteered their time to support ITSA events and help students at the start of their careers. With active student representatives at all the regional Bar Course providers, ITSA has supported members all over the UK by providing both social activities and academic opportunities. This year, thanks to our representatives in Nottingham, we managed to host a Mock Trial Competition with a winning prize of two mini-pupillages with Carmelite Chambers and 1MCB. In addition, our Leeds representatives hosted a fantastic Bowling Night for our Inner Temple student members, whilst our Northumbria representative put on a Pupillage Advice Evening with members of the local Bar. Overall, this academic year has seen ITSA go from strength to strength, building on our successes of previous years. I would like to take this opportunity to thank all the members of the 2016/17 committee for their efforts and dedication to ITSA. In addition, I would also like to thank the Education and Training Department and, in particular, Eamonn O’Reilly for his support throughout this year. Finally, I would like to thank Master Hodge for his support as Chair of the Student Societies’ Sub-committee. I hope that next year’s BPTC cohort will bring new ideas and strong candidates for committee positions that will take ITSA to new heights, making 2017/18 the most successful year for ITSA yet.

The Inner Temple Yearbook 2017–2018

Call to the Bar

CALL TO THE BAR E

The Legal Services Act 2007 defines a barrister as “an individual who (a) has been called to the Bar by an Inn of Court, and (b) is not disbarred by order of an Inn of Court”. Call is the conferral of the ‘Degree of the Utter Bar’ and the title ‘Barrister’. The degree is conferred on those who have completed the required academic, vocational and Inn’s qualifying session stages of qualification, and who have satisfied the Inn that they are fit and proper to be called to the Bar. In order for a barrister to be able to practise, he or she must also complete the profession training stage of qualification (pupillage).

Education & Training

The Inner Temple Yearbook 2017â&#x20AC;&#x201C;2018

The Inner Temple Yearbook 2017–2018

A Chairman’s Reflections

A CHAIRMAN’S REFLECTIONS By Master Ayling, Chairman, Advocacy Training Committee

When Master Soole invited me to take over his role as Chair of the Inn’s Advocacy Training Committee and Faculty, I thought I knew what it entailed. There would of course be four residential weekends (pupil and new practitioner training) to attend at Wotton House in Surrey. There would be committee meetings to chair; the odd speech to make. I was aware that we would be revamping the New Practitioners’ Course. But little did I realise what all that meant to a busy criminal practitioner.

OTHER ROLES The first point to note is that the Chair of the Advocacy Training Committee is automatically co-opted onto the Education and Training Committee. I was also a member of the Advocacy Training Council (now the Inns of Court College of Advocacy), and I was on the Executive Committee. That amounts to quite a few meetings for an out-of-town bencher who practises in all the far-flung parts of the country. My attendance certainly put the conference call facilities of the Inn to the test. I have also been very grateful to colleagues who have chaired meetings in my stead after a last-minute request. Recently, the Bar Standards Board has been reviewing advocacy training during pupillage (among other things). The Chair of the committee is expected to contribute to these consultations. THE NEW PRACTITIONERS’ ADVOCACY COURSE This flagship course takes place twice a year in April and June, at Wotton House. New practitioners (barristers in their first three years of practice) are taught pro bono by experienced members of the Inn’s Advocacy Training Faculty. The new practitioners have the opportunity to examine in chief and cross-examine real experts using a real case scenario. Both the April course (with doctors) and the June course (with accountants) have recently been revamped with new case material. It sounds easy enough, but the challenge was to design medical and accountancy problems which could be used to teach both civil and criminal participants. To the rescue came Master Leonard and Master Matthewson as well as Dr Nikki Lack, consultant obstetrician at University College Hospital London, who had been an expert on the course for several years. After many late nights and long weekends in which they spent time manufacturing MAR charts and forging doctors’ notes, they delivered to the Faculty an impressive and, most importantly, workable scenario, which the advocacy trainers were delighted to receive. It takes about three years to develop a case of this sort, and we are delighted to report that it has been very successful. The accountancy problem is due to be ‘rolled out’ as I write in June 2017. We are extremely grateful to Master Sam Stein and Peter Clark from the Faculty as well as Simon de Quidt, partner at Deloitte Touche Tohmatsu Limited, who have put in a great deal of work to see the new case come to fruition. All the Inn’s advocacy training sessions are taught using a 72

Master Ayling at an advocacy training event

systematic six-stage method originally devised by Professor the Hon George Hampel QC AM and Her Honour Judge Felicity Hampel. Recently, the Hampels have taken their teaching models to a new level. They joined us from Australia with Master Ann Ainslie-Wallace and her husband, Scott, to show us how a new and more sophisticated method of teaching was more appropriate for new practitioners. Nicknamed Hampel II by the Faculty, the session begins with the practitioner indicating to the trainer what it is they want to say about a particular witness in the closing speech, thus concentrating the mind of the trainee not just on the examination of witness they are dealing with, but also on what evidence should be elicited to be used as comment at the end of a case. We are extremely grateful to the Hampels for their continuing contribution to advocacy teaching. Adopting this advanced method meant of course that the advocacy trainers had to retrain – which meant giving up yet another Saturday to the advocacy training cause. We were pleased that Master Korner, Master Leonard, Master Sarah Clarke and Master Hodge were able to pass on the teachings of the Hampels and put us all through our paces on the training day.

Education & Training

SPARE TIME It has never ceased to amaze me how much ‘spare time’ the members of the Advocacy Training Faculty devote to training the young. It is not only the two weekend courses for pupils and the two courses for new practitioners a year, but there are mock trials, case analysis sessions, applications days and the occasional ad hoc event, such as the Open Day in the Royal Courts of Justice in September 2015, where trainers demonstrated to the public how advocacy is taught. The doctors and accountants who act as expert witnesses on the New Practitioners’ weekends also give their time pro bono and, without them, our flagship course could not function. As I have said so often in the last three years, it is not only the trainers themselves who give up their time; it is their families and friends who do without them on precious weekends who also deserve our thanks. SPEECHES Over the last three years, we have been fortunate to hear inspirational and amusing talks from a number of eminent speakers at our advocacy events, in particular from eminent women including Master Ann Ainslie Wallace, Master Juliet May, Master Sue Carr, Lady Justice Macur and Mrs Justice McGowan. It has also been inspiring to the trainees and trainers that every Treasurer over the past three years has attended training sessions and experienced at first hand the work of the Faculty.

“ It has never ceased to amaze me how much ‘spare time’ the members of the Advocacy Training Faculty devote to training the young.” TRAVEL ABROAD Members of the Faculty are much in demand for their training skills in foreign jurisdictions. Jersey, Malaysia, Poland, Romania, St Lucia, Zimbabwe, Ireland, The Hague, Ghana, Guernsey and Belize are among the countries where advocacy has been taught. There is a convention that the Chair of the Committee

The Inner Temple Yearbook 2017–2018

does not travel on such trips. I however was lucky enough to be invited as a last-minute replacement on trips to Sierra Leone and Philadelphia. In May 2017, I joined Masters Korner, Soole, Griffiths and Desmond Browne QC, travelling under the auspices of the Inns of Court College of Advocacy, in delivering a training the trainers programme in Mauritius. It was attended by senior and eminent members of the Bar and judiciary. It is hoped that the Mauritians will now develop their own advocacy training programme. I will draw a veil over how the loss of my passport prevented me from visiting Malaysia to deliver a lecture on questioning vulnerable witnesses. Suffice to say that I did eventually give the lecture, via Skype and at 3 am one Sunday morning! THE EDUCATION AND TRAINING DEPARTMENT I could not have seen these three years through without the support of the members of the Education and Training Department most closely associated with advocacy – Fiona Fulton, Kerry Upham and especially David Miller. His quiet modest exterior belies the steely hard worker underneath. He is also something of an actor. We have enjoyed his participation in We’re Here Because We’re Here and One Man, Two Guvnors, and we have laughed heartily at his antics when explaining to trainers the mysteries of how to operate the DVD system at Wotton. It was a sad day from that point of view when we changed to iPads. SUCCESSOR Whilst relinquishing my chairmanship of the committee at the end of 2017 will free up a number of weekends and release me from the task of letter writing and after-dinner speech making, I know I will miss it. Whilst teaching young practitioners is an onerous and responsible pursuit, it is one from which we all take great pleasure. It enables us to attempt to improve our own advocacy, but more importantly to contribute to the future of the independent Bar. In the three years of my chairmanship, we will have trained 271 pupils and 228 new practitioners. I wish my successor good luck for the challenges in the three years ahead. For details on how to become an advocacy trainer, please contact David Miller – dmiller@innertemple.org.uk

Master Korner, Yahia Nazroo (Appleby Global, Mauritius), David Miller (Professional Training Manager, Inner Temple), Master Griffiths, Master Ayling, Desmond Browne QC (Gray’s Inn) and Master Soole on the balcony of the Mauritius Turf Club in Port Louis, Mauritius.

The Inner Temple Yearbook 2017–2018

A MODERN APPROACH TO ETHICS By Master Griffiths Ethics! The very word reeks of ancient probity and dignity. It’s a Greek word, the title of a book by Aristotle, and no less a figure than Lord Mansfield tells us, in Bright v Eynon 96 ER 53, that “to the right understanding of the law, a competent knowledge of history, and of that part of philosophy called ethics, is absolutely requisite”. But that might not sound very exciting, or much fun. Proust goes so far as to say “one becomes moral as soon as one is unhappy” – although he doesn’t strike me as having been a cheerful soul at any time. Times have changed. Ethics is at the cutting edge of modern professionalism, as well as being a fast-growing field of study. Three years ago, the Inner Temple hosted in Hall a dinner for an international conference on Legal Ethics. It was packed to the rafters with the brightest and best academics from all over the world, for whom the subject provides more than enough for a life’s work of reflection, research, publication and teaching.

A code of ethics and conduct is what distinguishes a profession from a job. The justice system, which is one of the key components of a civilised nation, depends on the professional conduct and ethics of the lawyers as well as the judges who make it work. Our adversarial system puts on the advocates a particularly high level of responsibility. The Courts depend on barristers playing fair and straight, just as our clients depend on us to fight for their particular interests. It is striking that, of the ten ‘core duties’ in the Bar Standards Board Code of Conduct, the first and second are the barrister’s “duty to the Court in the administration of justice” and to “act in the best interests of each client” respectively – but the first is expressly stated to take precedence over the second and, indeed, over every other core duty (gC1.1). Ethics is the science of doing the right thing. It is a science and not an art – gone are the days when it was enough for an avuncular silk to tell young barristers “If it feels wrong, it probably is” – and leave it at that. It is as rigorous and challenging as mathematics – indeed, Wittgenstein says that “ethics does not treat of the world. Ethics must be a condition of the world, like logic”. Certainly, ethics must now be hardwired into everything we do as barristers – it is a condition of our world. But that is not easy. If ethics are as essential as mathematics, they can be as complex and difficult, too. When I was called to the Bar, there was no examination in ethics, and for training we

A Modern Approach to Ethics

were all given a slim volume (quite excellent in its way) by a member of the Inner Temple called W W Boulton (later, Sir William), entitled Conduct and Etiquette at the Bar. Even though it covered etiquette as well as conduct, it barely ran to 100 pages. The 2017 Code of Conduct is nearly three times as long (and does not mention etiquette!). Ethics is now an essential component of the Bar Professional Training Course and a key paper in the Bar examinations. Professional ethics is one of only three subjects considered so important that it must be centrally assessed by the Bar Standards Board rather than locally by course providers. But it is only since 2010 that professional ethics has been separately taught and examined as part of the BPTC. In December 2015, University College London’s Centre for Ethics and Law produced a report, commissioned by the Advocacy Training Council (now the Inns of Court College of Advocacy) on The Ethical Capacities of New Advocates. Although the research was based on very small sample sizes of newly trained advocates, it did not make for comfortable reading. It suggested that traditional models of ethics training are no longer adequate to the scale and importance of the subject. The Inns of Court College of Advocacy has set up its own working party to address this, but the Inner Temple is, as usual, determined to lead the field, and we have embarked on our own work to modernise ethics training. All barristers know the Code of Conduct, because otherwise they would not have passed the BPTC. But they must, also, be able to spot the duties and principles engaged by actual experience in practice, and feel confident in balancing competing duties, and arriving at practical solutions to problems. A working party, which I chair, is developing new methods and materials for Inner Temple ethics training. My colleagues on the working party are His Honour Judge Simon (Chief Examiner of the Bar Standards Board’s BPTC student ethics assessments), Susan Jacklin QC (who is also a member of the Inns of Court College of Advocacy working party), Professor Cheryl Thomas, of University College, London (who has a research interest in the practical teaching of ethics to lawyers) and Tim Petts (a member of the Bar Council’s Ethics Committee). I am immensely grateful to them for their work, which has been stimulating and enjoyable as well as productive. We are devising course materials, teaching notes, and software. We will also have proposals for teaching and recruiting trainers, online course materials, and methods for assessing the effectiveness of the training, which can in turn be used to improve future training. The primary method of training will be, as now, face-to-face training at sessions in the Inn. However, it will be supported by preliminary materials, which prepare students for those sessions, electronic and other modern teaching aids, and online materials. We will also consider how best to recruit and train our ethics trainers so as to make the teaching as easy, consistent and rewarding as possible.

Education & Training

The Inner Temple Yearbook 2017–2018

TRAINING FOR THE BAR: CHANGES ARE ON THE WAY By Derek Wood CBE QC, Inns of Court College of Advocacy (ICCA) The pattern of training for the Bar has been heavily criticised by the Inns of Court and their students for many years. Other less conspicuous critics are those who wished to qualify as barristers but found too many financial obstacles in their way. The focus of objection has been the Bar Professional Training Course (BPTC), the vocational course – 30 weeks if taken full-time – standing between academic legal study and pupillage. Eight institutions at 14 locations around the country provide this course at a dauntingly high cost to students. Many of our graduates are already burdened by accumulated debt from their time at university. BPTC fees range between £16,000 and £19,000. Living costs go on top of that. A scholarship from their Inn will lighten the load to an extent for some students. But even taking into account the £5 million scholarship monies which the Inns collectively provide each year, there is a serious worry that the Bar is becoming a profession for the ‘haves’ to the exclusion of the ‘have-nots’. Apart from the question of cost, the BPTC in its present form faces other serious criticisms. The number admitted to take the course is excessive. The failure rate (18 per cent at a rough estimate) is unacceptably high. Some two-thirds of each year’s cohort of students (around 1,000) seek pupillage in England and Wales. That is far too many for the 400 or so pupillages available. Students who pass are graded ‘Competent’, ‘Very Competent’ and ‘Outstanding’. The chances of a ‘Competent’ student getting a pupillage are 20–1. All of this represents a huge waste of students’ money, and poses an unacceptably high risk for the less well-off. In March this year, after extensive consultation, the Bar’s regulator, the Bar Standards Board (BSB), announced a set of revised arrangements, which are to be welcomed. The new

policy retains the strengths of the present system but cuts out some of the weaknesses. Much of it was advocated on behalf of the four Inns by the Council of the Inns of Court (COIC). The Bar remains a graduate-only profession, with few exceptions. Students who have a qualifying law degree containing the current seven foundations of legal knowledge can apply to begin the BPTC straight away. Other degree holders will first have to take the one-year conversion course, containing the same syllabus. Holders of lower second-class degrees may continue to apply, but will be given a strong warning about their prospects of pupillage. Entrants to the BPTC must also pass the Bar Course Aptitude Test, but COIC’s proposal that the pass mark should be raised further was not accepted. Most importantly, the BSB welcomed a radical new model for the BPTC, proposed by COIC, supported by the Bar Council, which is intended to address some of the problems listed above. Under this model, the BPTC would be split into parts one and two. Part one would comprise the knowledge-based subjects (criminal and civil procedure and evidence) and would allow students to prepare for this part by private study, if they wished, anywhere in the world, using online materials and at minimum expense. Only candidates who had proved themselves by passing part one could move on to the skillsbased training in part two, which would be shorter and cheaper than the present integrated 30-week programme. The Inns are enthusiastic about this flexible, accessible and affordable model and have approved a scoping review looking at its practicalities, with the possibility of seeking BSB authorisation to deliver the course, via the Inns of Court College of Advocacy, by 2020.

The Inner Temple Yearbook 2017–2018

We Need Your Help

The Inn relies to a great extent on the willingness of its members to dedicate time and effort to support education and training activities. If you are a member who would like to volunteer to help, please see our Guide to Volunteering Opportunities in the Members’ section of the website or contact the Education and Training Department (contact details on page 51).

BARRISTERS TO GIVE MOCK INTERVIEWS

The Mock Interview Scheme gives students a chance to refine their interview technique with the support of an established barrister before they undertake a ‘real’ pupillage interview. The Scheme is valued highly by our student members and consistently receives positive feedback. The time commitment is flexible but typically amounts to around one to three hours per year. Please contact Georgina Everatt.

GROUP LEADERS/ JUDGES FOR STUDENT ADVOCACY WEEKENDS The Education and Training Department organises three student advocacy weekends a year at external venues in Windsor and Northamptonshire. The weekends focus on a particular legal topic and include panel presentations from experts as well as sentencing exercises and advocacy exercises. Previous weekends have covered a broad range of topics including Hearsay, Assisted Dying, Prisons, Terrorism and Vulnerable Witnesses. Barrister members over seven years’ Call act as group leaders and judicial members judge the student advocacy exercises. If you would like to volunteer to be a group leader or judge at a future weekend, please contact Julia Armfield.

OUTREACH

MENTORING

The Outreach team organises a range of outreach activities for school and university students at the Inn and across England and Wales. If you are interested in helping with these events, please contact Struan Campbell or Daisy Mortimer. We are particularly keen to hear from members on Circuit.

The Mentoring Scheme aims to provide students with advice, guidance and a point of contact during their initial stages of becoming a barrister. Mentors are usually allocated at the beginning of the academic year and the demand is always very high. Please contact Georgina Everatt if you would like to help.

SCHOLARSHIP INTERVIEWS The Inn offers funds in excess of £1.7 million annually to be distributed as scholarships and exhibitions for Bar training. Interviews are typically held on two consecutive weekends in March for BPTC awards and over a single weekend in June for law conversion awards. If you would like to volunteer to assist with the interviewing process, please contact Eamonn O’Reilly.

MARSHALLING The Marshalling Scheme enables pupils and BPTC students to spend a day or days (up to a week) in court with a judge. As a result of the Scheme’s popularity, the Inn is seeking more judges to participate. Please contact Kerry Upham for details.

REGIONAL QUALIFYING SESSIONS BPTC students at providers outside of London are able to organise up to three qualifying sessions locally. These may be lectures, advocacy training, mooting or debating sessions followed by a reception with members of the local Bar. These sessions are subsidised by the Inn. Our student members would greatly appreciate the support of local members for these sessions. If you would be willing to help with future sessions, please contact Georgina Everatt.

ADVOCACY TRAINING FACULTY The Inn’s dedicated Advocacy Trainers provide compulsory advocacy training courses for pupils and new practitioners and are increasingly being called upon to provide specialist advocacy training for established practitioners. If you are over seven years’ Call and would be interested in undertaking the advocacy teachertraining course to support this core function of the Inn, please contact David Miller.

Library

The Inner Temple Yearbook 2017–2018

LIBRARY FACILITIES & SERVICES

The Library offers the following facilities and services: ■ The Library offers the following facilities and services:

■ a quiet environment for study, with over 90 reader places ■ a comprehensive collection of English legal materials, including the

most up-to-date editions of major practitioner texts ■ an extensive archive of old editions of practitioners’ works ■ specialist Commonwealth & Scottish collections ■ collections which are all on-site and easily accessible ■ a range of commercial legal research databases

The Library is open to all members of the Inner Temple and to members of the other Inns of Court. It is a legal reference Library, staffed by experienced information professionals, which offers users access to a wide range of print and electronic resources in a comfortable working environment.

■ PCs for online research, access to email and word processing ■ free Wi-Fi ■ photocopying, scanning and printing facilities ■ a document supply service ■ an enquiry service (in person, by telephone and by email) ■ assistance with online searching and legal research ■ an overnight loans scheme for barristers ■ legal research training for pupils and students ■ legal research FAQs on our website ■ tours for students and pupils, plus a virtual tour on our website ■ web access to the library catalogues of the four Inns ■ AccessToLaw, a gateway site providing annotated links to selected UK,

Commonwealth and worldwide free legal websites (www.accesstolaw.com) ■ Current Awareness blog for legal news, changes in legislation and new

case law (www.innertemplelibrary.com) ■ quarterly electronic newsletter ■ a Facebook page with information on Library services, news and events

(www.facebook.com/innertemplelibrary) ■ range of guides available in the Library or for downloading from

our website ■ equipment and software for users with hearing or visual impairment

More information on the Library’s collections, services and contact details can be viewed at www.innertemplelibrary.org.uk.

The Inner Temple Yearbook 2017–2018

Legal Research, Training and Outreach

THE LIBRARY’S ROLE IN LEGAL RESEARCH TRAINING AND OUTREACH In June 2017, the Deputy Librarian gave a presentation entitled “Legal research: the lesser known superpower” at the Inn’s Q&A Day. The idea was to highlight the importance for any aspiring lawyer of being able to carry out legal research effectively. This was the first time the Library had participated in this event and demonstrates how far we have come in recent years in not only providing essential training to members and other library users but also in expanding our range of outreach activities to students and prospective members.

Before 2013, Library staff were offering one-to-one training sessions to pupils using print and electronic resources as and when requested. We also ran open days where the electronic suppliers were invited to demonstrate their databases to users throughout the day. We were keen to offer training to a wider audience and we thought there would be a good response based on our observations of the enquiries pupils were making at the Enquiry Desk and from discussions with students. So we began to run a course for pupils on legal research twice a year in the autumn and spring. Initially this was in three parts, consisting of an overview, then two sessions looking in detail at case law and legislation. We have now condensed these into one longer session. Attendance has been consistently good

over the years and the feedback on content and trainers has been very encouraging. As our training is based in London, our next aim was to provide something similar for members outside the city. So in 2014 we videoed our three sessions and made them available on the Library’s website. The recordings were carried out in a professional recording studio and include mini videos of the databases so that viewers can actually see the searches being done. We have also developed the legal research pages on our website and there are several tools that can be used by anyone regardless of location. These include legal research FAQs, a series of database guides, and tips from legal publishers. The next development was to take the training outside the UK, and this was achieved in 2016 when we were asked to provide some training to Inner Temple members in Gibraltar. This was organised by Charles Bonfante of Hassans, and took place in the University of Gibraltar. There were about 20 attendees from the local Bar and the session was received very positively. It had long been an aim to offer training to BPTC students and in 2016 the Inn’s Qualifying Sessions Committee approved our proposal to offer legal research as a qualifying session. We ran

Library

this three times and were pleased to note that 110 students attended. Dates are now scheduled for the 2017 sessions and following on from this, we will be expanding our offering so that, as well as the basic introduction to legal research, we will be running more advanced sessions in the spring of 2018. We hope this will lead to students being better equipped to carry out skilful legal research when they start pupillage. In the Library, requests for assistance come not just from students and pupils. Many clerks often need help with their queries. We began to think that we should take a more structured approach to this by offering some training to be carried out in chambers for their clerks. We hoped that this would be an attractive proposition, especially as it would help the clerks to find the correct materials more quickly and easily. Earlier this year we trained two groups of clerks in Blackstone Chambers and Fountain Court Chambers have since expressed interest in similar training. We are keen to offer this training as the Inn Libraries can be overwhelming at first sight and we want to make sure that the clerks’ visits are as stress free and productive as possible. To return to the Q&A day in June 2017: The Library has always been keen to participate in outreach activities and to make sure that prospective and new members have a good understanding of the excellent services we can offer, and of the central role the Library has within the organisation as a whole. We were pleased to take part in this event and decided to deliver a presentation on the skills needed to carry out effective legal research. As the audience was a mixture of school students and undergraduates we chose a superhero theme to make the presentation appealing and more interesting. We have been encouraged by the initial feedback and subsequent emails enquiring about additional training. Participation in the Q&A Day represents only one aspect of how the Library has been increasingly involved in outreach activities over the last few years. Since 2010, we have given an annual presentation to the London Bar Schools on the services the four Inn Libraries offer to students (the presentation is also available on our website). This was initiated by the Inner Temple Library and is considered to be an important part of the students’ inductions by the BPTC providers. We follow this up with an open afternoon in our

The Inner Temple Yearbook 2017–2018

Library where students can meet staff and chat face to face about services. They can also take part in an orientation quiz and have a tour of the Library. The Library has always participated in the Inn’s student introductory evenings and had a stand with information on services, but now a member of staff also joins the group of speakers in Hall; this gives us the opportunity briefly to outline the importance of making use of the Library’s facilities and services. In 2016, Library staff attended various fresher events at the London Bar Schools for the first time. This was a great opportunity to meet new members and as we have been asked to attend fresher events again in the autumn of 2017, the students obviously appreciated our involvement. In addition to our student activities we also offer a range of tours and inductions for new pupils. We regularly take groups of new pupils from specific chambers on tours and our lunchtime welcome sessions have become an annual event. We are also happy take individual pupils around the Library and to provide one-to-one training if required. In recent years the Library has been collaborating more closely with the Inn’s Education and Training Department and we now take prospective members on tours of the Library. In 2016, over 90 tours of the Library were given to individuals and groups of prospective new members. This is an excellent opportunity for the Library to explain its role within the Inn and for Library staff to explain our many vital services. So from our initial rather limited training options, the Library now has much to offer our different user groups and potential members. Our training sessions are highly regarded and popular; we actively reach out to new BPTC students and encourage them to make use of the Library; we have many opportunities for new pupils to become familiar with our services and we engage positively in the Inn’s activities to encourage equality and diversity. As one superhero once said, “It’s not who I am underneath, but what I do that defines me.”* And in the same way the Inner Temple Library is defined by the many and varied activities it carries out to meet the needs of its users and to reach out beyond the Inn’s membership to make the Inn an equal and diverse environment. *From Batman begins 79

The Inner Temple Yearbook 2017–2018

What is Europe?

THE SOCIAL CONTEXT OF LAW: WHAT IS EUROPE? By Master Scruton

Master Scruton Photo: News Syndication

Last year the Inn hosted a series of public lectures under the broad title of The Social Context of the Law, in which speakers explored some of the deeper issues underlying law and legislation in the context of rapid social change. The series was a success and it was decided to make an annual event of it. This year’s lectures addressed the question of Europe – what is Europe, and how well is the idea of Europe represented by the institutions created in its name? The lectures were in their different ways responses to the volatile political situation that has erupted in the wake of the Brexit referendum. Under the chairmanship of Master Nice, Master Schiemann and I opened the series by discussing the broad question of European identity – the ‘we’ of political membership. Subsequently Master Sumption and Master Sedley explored some of the constitutional issues, including the confrontation between the ‘sovereignty of Parliament’, and the supremacy of European law, while Master Tugendhat and Kristy Brimelow QC discussed two concepts which seem both to unite Britain and Europe and also, in their interpretation, to divide them: the concepts of human rights and the rule of law. In response to Master Schiemann’s eloquent plea for the European institutions I made the case for national identity as the true fount of political obligation, and I defended de Gaulle’s idea of a “Europe des nations” against the “ever closer union” that is Master Schiemann’s ideal. A lively discussion followed, and many of those present expressed relief that such tense and emotionally charged questions could be discussed within the context of an ‘agreement to differ’. In this respect, at least, our discussion was very different from the national debate that had preceded the referendum, and the explosion of sentiment that had followed it. I accepted Master Schiemann’s view, that the real motive behind the European process has been to secure peace and stability in the wake of devastating wars. I admire the ingenuity of the European Institutions, which have created a new kind of sovereignty, and a new kind of legal order. However, I argued that sovereignty and legal order must be underpinned by

some kind of pre-political loyalty: a first-person plural of belonging. And this first-person plural has not, in my view, emerged in Europe. There is no European demos, no collective ‘we’ to which the European people spontaneously appeal in emergencies, or when their interests and their communities are threatened. This we have seen at every stage in the current migration crisis, in which the French strive to protect the borders of France, the Hungarians the borders of Hungary, and the Italians, to no avail, the borders of Italy. All political order depends, in the end, on this pre-political ‘we’, and it is the failure to produce it that is leading to a continent-wide crisis. Like Master Schiemann, I am a cosmopolitan person, though not as cosmopolitan as he. But I argue that for ordinary people it is national identity, rather than cosmopolitan aspirations, that provides the foundation of democratic politics. On the other hand, we British have a special problem that other European nations do not have, namely, that we have no single nation of our own. I am both English and British, and the English are sometimes with the Scots, sometimes against them. So what, for us, is the real source of our ‘first-person plural’? No clear answer emerged from our discussion, which is hardly surprising, since it has been going on without a clear answer for three hundred years. Master Sumption and Master Sedley raised the vexed question of Parliamentary sovereignty, at that very moment under consideration from Master Sumption and his fellow judges in the Supreme Court, following the challenge to the government over the invocation of Article 50 of the Lisbon Treaty. As Masters Sumption and Sedley made clear, we do indeed live in interesting times, and interesting for nobody more than for lawyers. Master Tugendhat and Ms Brimelow QC completed the series with a lively exchange about the two concepts which the EU has made pivotal to its political programme, as they were pivotal to the Glorious Revolution in this country: human rights and the rule of law. Professor Sir Roger Scruton FBA FRSL

Social Context of the Law

The Inner Temple Yearbook 2017–2018

WHO ARE WE? By Master Schiemann

Master Schiemann Photo: Birkbeck

Much of the European debate in this country has been and continues to be focused on the question “What is best for us?” So, the preliminary question arises: who are we in this context? Those born in England – or the UK? Those now living in England – or the UK? European citizens? There is no objectively right answer. Lots of answers are possible. Each can choose for himself bearing in mind the context in which the question requires an answer. When considering ‘who are we’ in the context of mass migration, global warming or the dangers of nuclear war, global food or water shortages there is a practical judgment and a moral judgment involved. The practical judgment involves considering what groupings can usefully contribute to the provision of an answer and what groupings will be affected if these problems are not satisfactorily resolved. The moral judgment is concerned with the question whether there is any moral obligation on a grouping to do something towards the resolution of the problem. So, let me give you my answer for the purposes of this evening to the question “What we understand Europe to be”. “We” in this context are for present purposes the citizens of the member states of the EU, both as individuals and as groups of individuals. Many would answer the question “who are we?” with a much narrower circle, “the English”, “the Scots”, “the Welsh”, “the Northern Irish” or “citizens of the United Kingdom”. Why do I have a wider view? We are all shaped by our own experiences. Judges learn to be conscious of their own biases and so I always ask myself “why do I think this when others take a different view?” So, let me put my cards on the table. I have always been attracted by a historical perspective. Since I am now in my 80th year, my lifetime is a reasonable chunk of history. Since my experiences are certainly longer and probably wider than most of yours let me share them with you. My family over the past few centuries lived in Prussia and in what are now parts of Poland, Latvia, Estonia and indeed Russia. Personally, I had a childhood in Nazi Germany where Hitler was exciting the masses and the British were bombing us into the ground.

Much of my family had left Germany before the war. Others suffered either from their fellow Germans or from those upon whom the Germans had made war. Many of my family and friends of my family were killed, others imprisoned or raped. All who survived were driven from their ancestral homes. I lost both parents. Fortunately, a German uncle and an English wife who were in England took me under their wing. So, I must now declare an interest: I am one of the foreign-born workers and pensioners whose presence in this country clearly many find disturbing. I came to Birmingham as a 9-year-old. Straight into state primary school. I suppose some of the parents of my fellow pupils were distressed at this German boy in the class who could not speak English. Fortunately, I was a fast learner and a direct grant school in Birmingham gave me a free place. Then to a German University, then the British army, then Cambridge University, then working in the Netherlands on a European project, then the Bar, the English judiciary and finally a judge of the ECJ – the Court of Justice of the European Union – appointed by all the member states acting unanimously. Some members of the Court of Appeal on my appointment to the ECJ said “What on earth persuaded you to leave London and this court, which you clearly enjoy, and go to little Luxembourg to serve with a dozen other judges who will often think differently from you and come from different backgrounds?” Let me explain why I thought myself hugely privileged, lucky and very contented to help in what I saw as a project to create a better world. Whilst I was at school in England my uncle moved to Luxembourg to act as an advocate before the ECJ. He was the first independent lawyer in Europe to try this. I learned from him, and the early architects of what is now the EU, that the European Coal and Steel Community was an attempt to make the world a better and more peaceful place and to reconcile conflicting opinions without whipping up hatred. He had experienced the Nazi rallies in Germany and was fearful of the hatred they deliberately cultivated. So, I have grown up instinctively wary of mass gatherings and fearful of hate. As anybody would be, I am of course particularly distressed when I experience it personally. Fortunately, throughout my time in this country, I have never felt myself hated – until, that is, the debates around the recent 81

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Social Context of the Law

European referendum when to my astonishment I found myself for the first time treated by one or two with whom I used to have a perfectly friendly relationship as an enemy of the people. I know German Jews who were equally astonished when the same thing happened to them in the thirties.

Second, the idea that it might be possible to create a political structure in which people and states with different desires could work together for what was perceived as the common good. But how was this to be done? This was discussed at length by people in Germany and elsewhere during the Second World War. A member of this Inn, Helmuth James von Moltke, led a secret discussion group in Germany during the war for those who wished to consider how Europe might best be organised after the war was over. Unfortunately, when Hitler got to hear of what they were talking about Moltke and the others were hanged or shot as enemies of the people.

I grew up in houses in different European countries where there were books in many European languages. We listened to and attempted to play music from all over Europe – music which was regularly the result of musicians from many European countries making music together. I have grown up looking at cathedrals, civic buildings, houses, paintings, sculptures and tapestries in and from many European countries. All my life I have been surrounded by friends from many European countries talking different languages often at the same dinner table and indeed often at the same time. So inevitably I have been conscious that over the centuries there has been consistent cross-fertilisation in Europe of people and ideas; architectural, artistic, political, religious, philosophical, music, painting, sculpture and so on. I regret that, by contrast, I have not been exposed to much that is Far Eastern, South American, North American, African or other countries and when I am in such places, no doubt because of this, I feel myself an interested stranger rather than at home. So, I can fully understand the feeling of those with different backgrounds from mine, people who have grown up in different circumstances, people who have the same feeling of strangeness when they are in continental Europe as I have when I go to Uganda. But that feeling of being a stranger in Europe is not my feeling. Personally, I feel at home pretty well anywhere in Europe.

To me, the crucial political question is what political actions can help to bring about a situation where the world becomes a better, safer, more tolerant place where the selfishness of the strong does not make life a misery for the weak? That seems to me a sensible question for any politician and indeed any voter to ask. What can I do to make the world a better place? In the course of history many differing attempts have been made to try and answer this question. In the Middle Ages, it was hoped in Europe that the overarching authority of the Church would provide an appropriate tool for achieving peace. But parts of the church became increasingly corrupt in the 14th and 15th centuries. Subsequent conflicts between Protestants and Catholics produced many wars, deaths, famine, rape and rapine. A new path was sought in the search for peace: the idea that each governmental unit – be it the prince or a city state – could legislate as it liked in its own area and should leave the others alone. But, alas, this also did not have the desired effect and there were worse wars and individuals suffered terribly. Then in the 19th century the concept of the nation and the nation state was widely adopted. Several states each thought that they ought to be king of the castle and that all the others were dirty rascals. Each of the bigger ones thought it was and should be the most important. Each said, often after great demonstrations and processions by parts of the populace, that “the people have spoken and the people demand” this or that. Attempts were made through the mechanism of bi- or trilateral state treaties aiming at a balance of power to achieve peace. Again, no long-term success in the task of bringing peace and harmony. Another attempt was made in the first and second world wars to achieve peace, this time through war – beating the others into the ground so that they could never threaten you again. That also did not work. Millions of lives were lost. The situation has always been one of flux, largely as a result of one group seeking to dominate another group. In the late 1940s the idea gained ground that perhaps peace could be assured by a two-pronged method. First, an emphasis on the human rights of the individual rather than the rights of states. 82

In all polities, there is a tension between the desire to have an efficiently functioning political system and the desire to prevent abuses of power. Given our long and disparate political histories there is also in Europe a tension between the desire to have a functioning political system and the desire to let each historical entity retain its customs and way of life. But it was and is common ground that we must build a community governed by law rather than force. There was and is also a realisation that lack of economic prosperity had brought about wars in the past and that it was essential to have a functioning economic system. To try and resolve these tensions the structure adopted by consent in the EU is a rather complicated mechanism involving various European institutions: a council of ministers appointed by the member states according to their own democratic procedures, a directly elected Parliament, and a Commission of members appointed by each member state again through its own democratic procedures, and finally a court, the ECJ, whose job it was to resolve disputes. These institutions were tasked with making and administering laws. This is a totally new type of international political organisation born out of the need to create something functioning after a war which had destroyed the old systems. So, one has a polity deliberately created with its own rules interpreted by its own court. Many feel strongly that English political genius has consisted in creating law and constitution piece by piece, and feel that a conceptual construct can easily become the master rather than the servant and is alien to English instincts. I tend to agree. But many in this country feel that the Continent’s problems and ways of thought are not ours: we are different from all the others and less aggressive. Well, up to a point … Over the past few hundred years England has effectively taken over Wales, Ireland and Scotland. After a while, part of the island of Ireland managed a hundred years ago to break free again from England. The Scots and the Welsh have recently been making noises in the same direction. The growth of the empire was not entirely without an element of aggression and bullying of other countries – ask the Indians and the Americans. What one can say is that England’s borders have for hundreds of years not been diminished and may have given many of the English the feeling that they are immune from happenings elsewhere. I find this puzzling in the light of our history – most recently the two world wars – but I think this feeling exists. A foreigner is thought of as foreign and not really ‘one of us’ notwithstanding the fact that amongst England’s rulers and its general populace many have over the centuries come from abroad. Nevertheless, it may well be that the fact of being an island and a difference in histories have played some part in making the English insensitive to what was and still is a widespread desire on the Continent to make a success of being a part of a larger, communal, endeavour to regulate conflicting national desires and to bring peace and prosperity. There are problems with political constructs. The unforeseen always occurs. Yet the result of the English piecemeal approach of eschewing political constructs and living day by day is also not wholly satisfactory. To the astonishment of the continentals,

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the UK government was a few months ago apparently certain that it could validly separate the UK from the EU on whatever terms it chose without consulting Parliament. The Supreme Court has now decided to the contrary, but what is important in the present context is that the uncertainties surrounding the UK constitution are such that the government believed this parliamentary authority for the process of separation was legally unnecessary. The fact is that the UK constitution is remarkably uncertain and incomplete. It leaves substantial imbalances between the power of the three devolved administrations and the power of English MPs. It leaves a House of Lords with a bizarre system of appointment. It leaves the millions who voted UKIP without any form of parliamentary representation, save three peers (appointed, I think, before they were members of UKIP). It leaves an enormous amount to the good judgment of MPs with no ground rules. The basic problem in the relations between human groups is a magnified version of the basic problem in relations between human individuals. People’s desires are often mutually incompatible and the problem is how to continue a friendly and peaceful relationship notwithstanding incompatible desires. I saw this in practice when I was in the ECJ. If I explained how something worked well in the UK, I was from time to time faced with something on the lines of “That is all very well in practice; but how does it work in theory?” There is, particularly to someone educated in France, a strong attachment to an intellectually coherent theory. At times, this led to an idea of mine being thrown out as intellectually incompatible with a principle to which I subscribed. I recalled one of my earlier cases in England when I was sitting with two very senior judges. We reserved judgment and then met to discuss the draft written by one of us. As the youngest person there I was asked first what my opinion was of the draft. I said I agreed with it but that something which was said in para 67 was surely inconsistent with what was said in para 24. I was met with a beaming smile and “You are quite right. But it will do, won’t it?” That would not, I think, happen in France. But also from time to time, in the ECJ when we had got ourselves into a frightful conceptual tangle, I would be told “you English have a reputation for common sense. What is your instinct?” Occasionally, I hope I contributed something. What all of us judges had to fight, and did fight, was the feeling that what we were used to in our own countries was the only way of doing something. We all learned to listen to each other and try and gain from the other’s wisdom rather than always insist on our first thoughts. The EU was in its origins, and still is in my eyes, at attempt to provide a workable answer to the problem of conflicting desires and priorities. Over the past 60 years it has functioned reasonably well although, unfortunately in my view, much of the original idealism and feeling of fellowship has been diminished, mainly as a result of a Gaullist, nationalist, self-centred view of politics – of late shared by UK governments – and partly because the larger the Union has grown the more difficult it is to find any policy which receives approval from everyone. Because of the broad success of the Union there has been a stream of states wanting to join it and there is a constant stream of politicians and lawyers from all over the world to the EU institutions to see how this new approach works. Many seek to copy it in whole or in part. In this country, there is a widespread feeling that the sole purpose of the EU was and is to increase national wealth by trade. That, as a matter of history, is not why the European Community came into being. The Community was founded to achieve peace and make the world a better, safer place. The financial arrangements were seen as valuable in themselves but as a means to an end – peace. That is why repeated treaties, signed on behalf of every member state, have stated that the signatories desired “an ever-closer union of the peoples of Europe”.

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I see this solemn commitment to the ever-closer union of peoples as a vow, at the state level, akin to marriage at the individual level. Non-performance of such a solemn commitment requires justification. In The Soul of the World, Master Scruton talks of obligations of piety which one owes to others – parents, spouses, and wider “sacred ties to home and country”. Here again the question to be answered is “to what others do we owe obligations?”. To my mind, having willingly signed the Treaties which recited this desire for “an ever-closer union of the peoples of Europe”, we owe obligations to the other member states and their populations, in particular to the exsoviet states whom we encouraged to join the EU on the basis that we were members. When you agree to marry you know that in all probability there will in the next 50 years be differences of view on a whole variety of matters – some foreseen some not – but you are determined to work together towards the same broad aim of living happily together while yet retaining your two personalities. There is a commitment to a common life leading, one hopes, to the interweaving of two separate personalities, thoughts and gifts in the same way as musicians playing a piece of polyphonic music do. One hears different tunes being played or sung simultaneously. This interweaving can lead to something more beautiful than one person insisting that his will must prevail and his tune be the only one. I think that gradually many people realised that exclusively seeking the best for oneself and to hell with the others was no more admirable a policy for a state than it was for an individual. That is why I was saddened that both sides of the referendum debate regarded the question “What is best for the UK?” as the only relevant one. I have been brought up to think that selfishness is the problem not the solution. It is commonplace in the UK for the richer areas to use their money to help alleviate poverty elsewhere in the kingdom. But there seems to be a feeling here that helping a poor area in, say, Scotland is desirable but helping a poor area in, say, Italy is in principle a misdirection of taxpayers’ money. I regret this. The member states signed up to a status involving unknown obligations in the future but yet a commitment to a common life. A very bold thing to do but capable of producing something which is more than the sum of its parts. In a successful marriage, the resolution of those differences make the pair grow stronger. In an unsuccessful marriage, the differences eventually drive the parties apart. Where the EU differs from, I imagine, most marriages is that from the beginning a mechanism was set up, policed by the Commission and the Court, for the enforcement of what had been agreed and for the resolution of differences. Undoubtedly peace amongst the member states has substantially followed the creation of the European Communities. Throughout my life I have been very conscious of being part of the first European generation to have lived the whole of their adult lives without being personally exposed to war. More people in each country are closer to more people in other countries. But is this because of the Communities or merely chronologically subsequent to the creation of the Communities? Clearly, there have also been other factors in play but the Communities have played their part. That is one of the reasons why the member states, including the UK, when faced with half a dozen ex-Soviet Union countries with no tradition of stable democracy, worked hard to welcome them to the Union. Again, this and some sort of stability, have been substantially achieved. The challenge for us all is to make the world a better and happier place. For me a crucial question currently facing Parliament is “How will the UK leaving the EU help to make the world a better place?” It ought to be addressed. The Rt Hon Sir Konrad Schiemann 83

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What is Europe?

WHAT IS EUROPE? From a discussion given by Master Sumption and Master Sedley on 20 March 2017

The Rt Hon Lord Jonathan Sumption OBE

Master Sumption: Well, Europe, democracy, these are large subjects. But let us start with democracy, one of the most powerful words in the modern political vocabulary and one of the most widely abused.

But in this at least, we are not alone. Much the same approach has been taken by supreme courts in other European countries which do not have a notion of unlimited parliamentary sovereignty as we do.

In our system and in that of most Western countries, democracy is the ultimate badge of legitimacy, a slogan uttered in support of many inconsistent propositions.

They include the superior appellate courts of Germany, of France and of Italy, all of which have treated their own constitutional settlements as the ultimate source of authority, and the sole basis on which European law can apply.

But what is it? Well, there is first of all a geographical issue. If you ask yourself whether something has democratic legitimacy, you have to decide what is the relevant geographical unit within which the majority ought to prevail.

Is it Europe or the United Kingdom? Fundamentally I suppose that was the question that arose in last year’s referendum. Or is it England, Scotland and Northern Ireland? Or is it none of these? Because democracy really isn’t a question of majority as a tool but a system of values and if so, what values? The original aspiration of the European community was to create a new political order, a new political identity based on shared sovereignty. In legal terms, that idea was embodied in the 1964 decision of the European Court of Justice in Costa and ENEL, one of the most fundamental decisions which that court ever made. Costa v ENEL was the Court of Justice’s Marbury v Madison moment, the origin of the principle that European law overrode all national law. The question was whether Italian national legislation inconsistent with European legislation could be treated as having overruled the Italian legislation by which Italy had given effect to European law. The court’s answer to that question was that European treaties had created a new legal order, a new political unit superseding the old ones in the areas of activity assigned by the treaty to European institutions. Now this country has always accepted, at any rate since Factortame, that European law cannot be implicitly repealed by the mere enactment of conflicting legislation. But the bold reasoning in Costa and ENEL was never consistent with British constitutional doctrine, in particular with the doctrine of parliamentary sovereignty. Parliament declared by statute in 2011 that the juridical basis of European law was the constitution of the United Kingdom and in particular, British Parliamentary legislation. In its recent Brexit decision, the Supreme Court held that that would have been the case even without the 2011 act.

The German constitutional court is responsible for very much the most penetrating analyses of this question by any European Court. They have no doctrine of parliamentary sovereignty and so therefore had to ask themselves some particularly fundamental questions about what is the ultimate source of authority in a pan-European political community and by reference to what geographical unit is it decided? In the German constitutional court’s decision on the Lisbon Treaty in 2009, it held that democratic authority depended on what it called patterns of identity which are related to the nation state, language, history and culture. And it identified a number of tests for locating authority. Which entity possesses a monopoly of the deployment of force? Which entity controls the military and the police? The power to determine the contents of the criminal law? The control over educational and cultural institutions? The answer in each case was the nation states. Only, they said, when Europe could be said to constitute a single people would that change. The court avoided the word ‘Ein Volk’ with its sinister historical overtones. It referred instead to a single European demos. That is, I think, a fundamental truth. But what it really shows is that in the last analysis, the ultimate source of authority is not really a question of law at all. It is a question partly of power and partly of national collective sentiments about where our ultimate loyalties lie. This is not a new idea. In 1882 the well-known French historian Ernest Renan delivered a famous lecture at the Sorbonne entitled What is a Nation? Writing at a time when national sentiment in Europe was probably at its highest point ever, Renan questioned all of the theories of national identity which were current in his own day, most of which were based on ethnic or linguistic solidarities. In his view, political identity depended simply on collective sentiment. Nations, he said, depended for their continued existence on a daily referendum (his

Social Context of the Law

phrase), among its population. I If once they ceased to feel like a nation, they would cease to be one. Now, an infinitely powerful despotism could no doubt impose its own view on these matters, although probably not indefinitely. Democracies cannot do that. Ultimately, they are bound as a matter of practical reality to respond to the collective sentiments of voters, at any rate on questions which are sufficiently fundamental to change people’s minds about how to vote. That is why the experience of Europe since the foundation of the EU has been that democracy is an essentially nationalist concept. Very few people would say that Europe was a nation, ultimately because it doesn’t feel like one. Its institutions are not a natural focus of loyalty. The one European institution which might in theory have challenged this consensus is the European Parliament. It is perhaps the boldest of all the initiatives designed to create a sense of collective loyalty and democratic legitimacy at a pan-European level. The European Parliament is founded on a noble ideal, but by any objective standards, it has failed. The measure of its failure is the level of participation in its elections. Only in Belgium is the level of participation in elections to the European Parliament comparable to that in national general elections.

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The jurisprudence of the Strasbourg court has been largely built upon the concept that the constant references to democratic values or what is necessary or appropriate in a democratic society depends not on what electorates want but on a legal conception of what they ought to want. One of the few politicians to associate himself with this view publicly is Louis Michel, former foreign minister of Belgium, European Commissioner and now member of the European Parliament. Responding to the prospect that Mr Jörg Haider might come to power on the back of the Austrian general election of 2000 and the reality of Mr Viktor Orbán having done so in the Hungarian elections of 2010, he memorably described them as owing their victory to mere mathematics. True democracy he said was a question of values and not popular endorsement. For a rather extreme version of this point of view, I recommend to you an article in the latest edition of The London Review of Books by Professor George Letsas. Professor Letsas objected to the judgments of the Supreme Court in the Brexit case because they were based on a notion of parliamentary sovereignty. Parliamentary sovereignty, he said, was a piece of majoritarian folly which misunderstood the real nature of democracy. What he said, and I quote, was that “arguments about what the people want are irrelevant in a democracy.” They are irrelevant he said, “because the proper object of constitutional arrangements was to construct a vision of justice that should govern our polity.”

“ There is however another view which circumvents all of these problems. It is the view that democracy properly so called is not a mechanism for selecting legislatures and governments or for choosing between rival political programmes. It is a corpus of moral and political values.” In Europe as a whole, the turnout rate has fallen from 62% in 1979, when the first direct elections to the European Parliament were held, to 43% in 2014. In the United Kingdom, it is 36%, slightly over half the turnout at general elections. In some Eastern European countries, it is as low as 18%. It seems self-evident that a viable democracy must have a minimum level of participation higher than that. There is however another view which circumvents all of these problems. It is the view that democracy properly so called is not a mechanism for selecting legislatures and governments or for choosing between rival political programmes. It is a corpus of moral and political values. Legitimacy, according to this view, is something which depends on political institutions adhering to those values and not on popular consent. This is as yet a minority position. It has some traction in the academic world but very little among politicians or indeed voters. But it has become influential, partly I think because of the growing recognition that popular democracy can produce highly illiberal outcomes and partly because of an altogether more general disenchantment with the political process as such. Both of these phenomena can be observed today in many European countries and in the United States. The preamble of the European Convention on Human Rights recites that respect for human rights is best maintained by an effective political democracy. That no longer seems as self-evident as I think it once did.

It was this essentially legal vision which he regarded as the ultimate source of legitimacy. The late Ronald Dworkin was a more moderate exponent of the same view. I confess that for my part I find this view extraordinary. It is a repudiation of one of the axioms of European political theory since Thomas Hobbes, namely that the ultimate source of legitimacy is the consent of the governed, however notional or indirect that consent may be and however imperfect the institutions which give effect to it. It is really a reversion to the idea of the state as a system of imposed values which was articulated in different ways by those great enemies of the open society, Plato, Thomas Aquinas and Karl Marx. The difficulty about it, as it seems to me, is its appropriation of the word ‘democratic’ as a label. It is democratic only in the sense that the Democratic Republic of East Germany was democratic before the fall of the wall. More fundamentally I think that it fails to answer the major question posed by any constitutional arrangements. The major question posed by any constitution is not: What is perfect justice? It is: How are autonomous and disputatious individuals with diverse opinions going to live together in society in something like harmony? I happen to share the liberal values of those who put forward ideas like those of Louis Michel of Professor Letsas. But I have to recognise that many of my fellow citizens do not share them and it just is not good enough just to say, “Well, they’re wrong.”

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What is Europe?

In reality, there are not one but many visions of justice. We disagree fundamentally on the proper limits of individual liberty and collective action, we disagree about the moral right to wealth and its proper distribution, we disagree about the role of punishment in enforcing norms of behaviour. We disagree even about values as fundamental as the right to life, as witness the debate in this country about assisted suicide and in Ireland, Poland and the United States about abortion.

In a representative democracy with reasonable levels of education and standards of participation, it just does not work like that. Political parties are coalitions. They have to be able to put together a programme which will appeal to a broad enough spectrum of the electorate and repel the smallest possible number. Often this will involve stealing the other party’s ideological clothes. Frequently, it will involve beating a hasty retreat in the face of opposition.

The fact of disagreement on these points is very much more important than the question which group is right? How are we going to determine whose view is to prevail if not by force or by politics? Since for my part I do not wish to inhabit a state based only on force, I am driven to the conclusion that it has to be politics.

This process, along with the mechanics of power broking among elected representatives, produces ideologically impure compromises which are not wholly rational but they are compromises which most of us can live with, even if we do not positively welcome them. In a divided society, I think that that is a great achievement.

It is of course true that democratic politics can produce demagogues but it is not true in our day, as Aristotle thought that it was in his, that that is democracy’s natural tendency.

The Rt Hon Lord Jonathan Sumption OBE

Master Sedley Let me pick up a thread that Jonathan I think may have left hanging, probably deliberately so, in his address. That is his proposition that in the last analysis the ultimate source of authority in the state is not a question of law but a question partly of power and partly of collective sentiment about where our ultimate loyalties lie.

This, or so it seems to me, is not the same as his conclusion that the choice in deciding a society’s most momentous questions is between force, which he and I would both reject, and what he compendiously calls politics, meaning (I think he has suggested) not a mere majoritarian democracy with all its imperfections, but a shared corpus of moral and political values. Where and how are we to find this body of shared values? I differ from Jonathan in thinking that you have to start by identifying the relevant geographical, or rather geopolitical, unit. I don’t accept that we need to choose between being European and being British. That is precisely the false logic, the false dichotomy which has led the United Kingdom into a historic act of collective folly. Whether we wish it or not, we are both European and British, just as we are both Scots or Welsh or English and British. This is not, I suggest, simple rhetoric or simple political argument. It is a fact of history, geography, language, culture and economics, which it is going to take more than an Article 50 notice to negate. Somewhere at the root of this – Jonathan mentioned Renan – is the 19th century construct, or fiction you might well say, of the nation-state. I find it hard to name a single state which is also a single nation. Certainly not the UK. The conflation of state with nation has served the ends not of nation builders but of state builders, from Bismarck to de Gaulle. Its price tag is nationalism, and not infrequently aggression. So, it is true but immaterial that Europe is not a state. We do not require European nationality in order to be Europeans. What does matter is that for over half a century now, the politics and economics of European integration, with all their irritations, inefficiencies and faults, have enabled us to travel freely and to live in relative prosperity and peace. Our descendants may not thank us for turning our back on this achievement. 86

The Rt Hon Sir Stephen Sedley

What then of our domestic democracy? In 1647, the first political programme in our history, the Agreement of the People, was published, advocating a constitution based on popular sovereignty and popular consent. Its second version the following year proposed a ban on lawyers practising while they were sitting as MPs. The year after that, in 1649, an anonymous pamphleteer, writing in defence of monarchy, wrote this: “That kings out of vanity and self-interest have frequently misapplied that power entrusted to them by God and man I shall not deny, but if this be a rule for the abolishing of monarchy, it will be as infallible for the abolishing of all government since that ambition, avarice, revenge and all the other imperfections in our natures which may be assigned to kings as causes of misgovernment are upon the same account to be expected from the natural or accidental corruption in rulers, when once they come to the power of securely prosecuting their own interests.” Almost four centuries later not only are more than a tenth of our MPs lawyers, many of them are still practising; the register of members’ interests shows that moonlighting, which in any normal job is grounds for dismissal, is widespread among MPs.

Social Context of the Law

One of them, already with five outside jobs, has just become the editor of a daily newspaper without any indication that he proposes to vacate his seat. In this he is only following a colleague who undertook to vacate his seat if he was elected mayor of London, who then failed to do so and who has now been rewarded with ministerial office.

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MPs are paid £70,000 a year plus expenses – and (as one member of this audience knows very well) the expenses are a matter of high contention.

We have also been confronted within the last year with another awkward truth; that Parliament does not necessarily have the last word on what is to be our law. Somehow, thanks to the governing party’s internal feuds, a fringe party which has never won a parliamentary election, except by recruiting a single sitting defector, has been allowed to dictate the country’s future by means of a single-issue plebiscite conducted against a background of dubious and chauvinistic propaganda. MPs who are known to oppose Brexit have now forfeited their own judgment and voted to leave the EU.

I wouldn’t mind seeing that salary doubled as part of a deal that they do nothing else. Is it capricious to suggest that taking the pay for doing an already demanding job (demanding at least if it is done conscientiously), and then undertaking a series of other well-paid jobs is something of a fraud, both on the electorate and on the Treasury?

I am bound to say I have difficulty in detecting in this process any sign of the version of democracy which Jonathan characterises as adherent to a set of moral and political values. If anything, we are witnessing the abandonment of such values in favour of populism, whether that word is taken as pejorative or as simply factual.

Then there is the way Parliament conducts its business. An MP who tops the ballot for private members’ bills may introduce a measure which commands overwhelming support in the house. One thinks of the bill introduced some years ago by a member with a constituent whose son had been killed by a nightclub bouncer with a history of violent crime.

So where does power reside in our democracy and how is collective sentiment, in Jonathan’s phrase, generated and expressed?

The bill, which would have introduced registration and vetting for such individuals was talked out, as was usual, by a single member, the late Eric Forth

A large part of the answer has to be the media, both public and social. The Daily Mail’s characterisation of the three senior judges who sought to uphold the rule of law as enemies of the people was followed, when the Supreme Court upheld them, by an editorial headline calling the decision “not a good day for democracy”.

“ Well, if democracy means giving effect to a referendum result by unconstitutional means then it was a deservedly bad day for democracy. But that is not what democracy means, for democracy has to co-exist with the rule of law.” whose sole contribution to parliamentary democracy was to repeatedly torpedo worthwhile bills for which the whips would not provide government time. Why do neither standing orders nor the speaker prevent this? Probably because it makes it easier for the government whips to maintain control of the legislative programme. At least there is now a register of members’ interests. But is a member disqualified from voting on a matter which conflicts with one of their declared interests? If it were a parish council, the answer would be ‘yes’ and the court would if necessary intervene. But not in the mother of parliaments. In Westminster, so long as you declare your interest, you are free to use your vote in its service. It is now 106 years since the first Parliament Act announced in its preamble the intention to replace the Lords with “a second chamber constituted on a popular instead of a hereditary basis”. It is a fine irony, not only that the House of Lords, still populated by an amalgam of hereditary peers, senior bishops (not even Iran has clerics sitting ex officio in its legislature) and beneficiaries of political patronage, has a much higher standard of debate than the Commons, but that in the absence of a whipped majority it is capable of coming to thoughtful and open-minded decisions. This said, its use as a political elephant’s graveyard damages its standing. Attention perhaps deserves to be given to Tom Bingham’s proposal to replace it with a smaller revising chamber of appointed and well-qualified individuals, a good many of whom can already be found there.

Well, if democracy means giving effect to a referendum result by unconstitutional means then it was a deservedly bad day for democracy. But that is not what democracy means, for democracy has to co-exist with the rule of law. Nor, however, do I agree with Jonathan that democracy is a representation of collective sentiment. Democracy is in fact in some ways the opposite. It is a means of allocating decisive state power in a society which possesses few collective sentiments and is divided in numerous ways about numerous issues. So, I am hesitant, with great respect, to endorse Jonathan’s fall back on politics as the best, or the least bad, way ahead until I know what politics we are talking about. Politics after all gave us fascist regimes from whose depredations the EU helped to extricate Europe after the Second World War. Politics also gave us the European Union from which we are now busily extricating ourselves. Both processes have involved an abdication to populism which might well be regarded as antithetical to democracy, at least so long as our democracy is a representative and not an Athenian one. This is why I think the Supreme Court’s decision in Miller (for which Jonathan gets some of the credit, in spite of the single star for Europhilia that he was awarded by The Daily Mail), by reaffirming the supremacy of Parliament in constitutional decision-making, may have been not a bad but a good day for democracy. The Rt Hon Sir Stephen Sedley

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WHAT IS EUROPE? Master Tugendhat and Kirsty Brimelow QC

What is Europe?

or punishment (Article 3); freedom from slavery and forced labour (Article 4); liberty and security of the person (Article 5); the right to a fair trial (Article 6); to be free from retrospective criminal laws (Article 7); to respect for private and family life and an inviolable home (Article 8); to personal property (Article 1 of the First Protocol); and to equality before the law, at least in some respects (Article 14). By the end of the 16th century, English law had also advanced some way towards recognising most of the other rights in the ECHR. Freedom of expression was recognised from shortly after 1215 in the law courts, and generally, in the 14th century onwards, in Parliament. The right to personal property had a particular importance in British and European history. It established that there are some limits to what the executive, or the legislature, could do, whatever their theoretical powers might be. It was central to the rebellion against King John in 1215, and to the rebellion by Parliament against the absolutist kings in the 17th century.

Master Tugendhat This paper will focus on an idea which is both British and European. It is the rule of law. It has been one of the pillars of the British constitution for centuries. It is also a central concept in the European Convention of Human Rights drafted in 1950. The preamble states that “European countries are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law”.

The UK has the best record for maintaining the rule of law. That is not because the British invented the concept, although they have made great contributions to the idea. What we have to be proud of is not so much our national contribution to the idea, but the fact that our ancestors were more successful in defending it than most other Europeans. The Preamble to the ECHR also refers to democracy. For the ECHR, as for the common law, the rule of law requires that the law protect fundamental or human rights. Democracy is valued not just for its own sake, but also as the best means of maintaining the rule of law, and thus of securing the rights of individuals as the rule of law requires. It is possible for a country to enjoy much of what is meant by the rule of law without being a democracy. That was the position in the UK for most of the last 800 years, and, recently, in Northern Ireland under periods of direct rule. It is also possible for a country to be a democracy without the rule of law. That was the position in Athenian democracy and in some of the medieval Italian republics. Experience of democracy without the rule of law led many people to reject democracy as a form of tyranny. Democracy without the rule of law quickly degenerates into what Lord Hailsham called “elective dictatorship”. The ECHR enumerates most of the individual rights which had come to be recognised in the common law by 1765, when William Blackstone published his Commentaries on the Laws of England. As Master Baker has written, these rights could not have been conceived without presupposing that kings should govern in accordance with law rather than by the exercise of arbitrary power. By the end of the 16th century, some of these rights had come to be attributed to Magna Carta: the right to life (Article 2); freedom from torture and degrading treatment 88

Because there was a recognised right to property, the King could not impose direct taxes without the consent of his subjects. Because there was a right to property, Parliament could withhold its consent to direct taxes until the King addressed the grievances of the people. Parliament thus became a forum for addressing the grievances of the people. Members of the House of Commons came to be accountable to all the people, not just to the tiny minority who constituted the electorate until the reforms of the franchise in the 19th and 20th centuries. Lord Hailsham explained the idea of limited government in a democracy: “The divine right of majorities is just as fallacious in conception as the doctrine of the divine right of kings, and although there is a qualified duty of responsible obedience imposed on the governed by either type of constitution, there comes a theoretical limit beyond which duty can no longer be demanded, and a practical limit beyond which it cannot be enforced” That theoretical limit is defined by human rights. It is because he saw human rights as necessary to prevent elective dictatorship that, in 1968, Lord Hailsham was the first person to propose the incorporation of the European Convention into English law. The ideas of limited government underlying Magna Carta were European. They had been taught in the University of Paris. Two of the greatest teachers of the idea of limited government were English, John of Salisbury, who spent his whole adult life in France, and Stephen Langton who spent all his adult life in Paris until appointed Archbishop of Canterbury. One human right which received very little recognition in the UK until the 19th century was freedom of religion. At times when freedom of religion was not practised at all in the UK, it was practised in much of Europe, to varying degrees and at various times. Examples are the Netherlands, France, Switzerland, Poland, Romania and, in particular, on the borders, where Latin Christianity meets eastern Christianity and Islam. In these countries freedom of religion was justified by what we know as the harm principle: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” In England, the principle is commonly attributed to John Stuart Mill,1 but the idea had been introduced into England by Locke on his return from the Netherlands at the end of the 17th century, and it is in fact set out in the French Declaration of the Rights of Man 1789 (Article 5), over half a century before Mill wrote his book.

Social Context of the Law

The Inner Temple Yearbook 2017–2018

matter for the UN, but should also be the responsibility of individual states. The ECHR was drafted by Conservative jurists and strongly supported by Winston Churchill, with the right of individual petition coming in during 1966. The Human Rights Act 1998, was a creature of the Labour Party. Its goal was to bring rights home. Lord Bingham described the Human Rights Act’s purpose as being not to enlarge rights or remedies of those whose rights had been violated, but simply to give effect to the Convention rights through the domestic courts.

Kirsty Brimelow QC I am going to look at the modern context, to complement the legal, historical context. When wondering where to start, I stumbled across a speech that was given by Winston Churchill at Zurich on 19 September 1946. He said this about his vision of Europe: “We must build a kind of United States of Europe. We British have our own commonwealth of nations. These do not weaken. On the contrary, they strengthen the world organisation. They are in fact its main support. Why should there not be a European group which could give a sense of enlarged patriotism and common citizenship to the distracted peoples of this mighty continent? Why should it not take its rightful place with other great groupings and help to shape the honourable destiny of man?” Such was his prophetic vision of Europe. We seem to be in a rather different place now. As politics again takes its aim at human rights, it is essential that we have a clear view of what has become a detested target.

Many years ago, the US jurist and Chief Justice, Marshall noted that individual rights are either supreme law, entrenched and enforced by an unreviewable judiciary, or they are ordinary law, changeable by a legislative majority. The Human Rights Act is actually a representation of an effort to transcend Marshall’s excluded middle by creating an institutional balance. Basically, whilst the courts are granted power to review the actions of the state for compatibility with Convention rights, this review is decoupled from judicial supremacy by leaving the final word with the legislature. This strengthens the accountability of the legislature and the public bodies, whilst taking care to uphold the Diceyan sovereign parliament that has the sole power to alter, or not, the law. This has often been described as the genius of the Human Rights Act. The European Court of Human Rights does not wag its foreign finger at the UK courts and Parliament. Section 3 (1) of the Human Rights Act is clear and unambiguous. The obligation upon the courts is to interpret legislation ‘so far as possible’ in a way that is compatible with Convention rights.

As somebody who travels extensively in countries where they are gasping for human rights, the revulsion that seems to have become associated with the label ‘human rights’ is always a surprise.

Section 2 (1) (a) of the Human Rights Act obliges courts to take account of the Strasbourg jurisprudence. It is very contrary to political pronouncements that Strasbourg imposes its decision upon the UK. Speaking truth to power, it is British judges that are making a significant contribution to international law and so are leading the way in its development.

Post-World War I, there was no notion that international institutions might inform states how to treat their citizens. Treaties between states were completely inaccessible to individuals.

Also, our courts cannot tell Parliament that it has acted unlawfully and strike down legislation, rather section 4 of the Human Rights Act gives a declaration of incompatibility. It is a last resort; then it is a matter for Parliament.

We then had the Holocaust, which led to the first international tribunal at Nuremberg. That was the start, in the modern, historical context, of recognition of crimes against humanity instead of war crimes. This crime then received its definition, in Article 6 (c) of the Nuremberg Charter.

In 2014, Mr Grayling repeatedly promised that he was going to make the court supreme again. This was nothing more than a political trick, because Parliament is supreme, the courts are not fettered by Strasbourg; rather the British courts have been leading in making a contribution to international law.

Clear criminal responsibility was laid on the state agents who authorised torture or genocide against their own people. Individuals have minimal, fundamental human rights in relation to treatment by their own states.

The pledge from Theresa May was that she was going to fight the 2020 elections on withdrawing from the ECHR. In light of the facts as outlined in this talk, why would the Conservative party seek to make such a change? Why upset a functioning, developmental and citizen beneficial status quo?

Another legacy of Nuremberg, was the Universal Declaration of Human Rights on 10 December 1948. This was the marking of the world throwing up its hands in shame and horror post the atrocities of World War II. However, that Declaration did not pretend to be a treaty or statement of legal obligation, but rather was described by Eleanor Roosevelt as an international Magna Carta of mankind. Then we had regional instruments, which came out of the Universal Declaration: the European Convention on Human Rights, (ECHR), ratified by the UK in 1951, the African Charter on Human and Peoples’ Rights, 1981, the Arab Charter on Human Rights and the American Convention on Human Rights. A reason for the regional instruments was to convey a message that human rights should not simply be a

Well, there is a political advantage to feeding into popular misinformation in order to garner votes, but also the arguments are made that the European Court has been engaging in mission creep, or European Court overreach. In other words, the criticism is that it has expanded beyond the meaning of the rights within the Convention and the original intention around those particular rights. I am just going to deal with the evidence relied upon to support this argument. It is easy to dissemble. When Prime Minister May was Home Secretary, she referred to the Abu Qatada case as a shining – and, in context, a tarnished – example of where the ECHR binds the hands of Parliament. That analysis was completely wrong. I will return to this shortly.

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What is Europe?

Another example was set out in the Conservative party paper in 2014. It informed that the European Court had banned full life imprisonment tariffs as being contrary to Article 3 of the ECHR (Hutchinson). That is incorrect. The case said that Article 3 must be interpreted as requiring reducibility. This means that there should be review mechanisms in place for those prisoners sentenced to prison for their whole life.

law gave them less latitude to do so than the Human Rights Act.2 For example, in 1891 the court refused to interpret a broad statutory power to grant injunctions in a manner that would restrict freedom of expression.

Subsequent to the initial European Court hearing, there was a hearing before the Lord Chief Justice. He held that there was adequate provision to review, in keeping with Article 3. It went back to the Grand Chamber of the European Court in January 2017. The Grand Chamber broadly agreed with the Lord Chief Justice. So that was the end of that. Finally, the contentious matter of prisoner votes – this issue isn’t new; it has been around for about 12 years now, and there has been a draft Bill pending before Parliament since 2012. The European case merely (and correctly) prohibits blanket bans. There is a wide margin of appreciation given to the state. Those are the cases (and their like) that have caused the fuss. The Abu Qatada type of case is like a magician’s white rabbit because it distracts from the British common law that has also developed under the ECHR, in compliance with the Vienna Convention on the Law of Treaties. That law will remain and will be applied irrespective of the existence or otherwise of the ECHR. Repealing the Human Rights Act would make no difference to the Abu Qatada type case. The Convention against Torture (CAT) and the Convention on the Rights of the Child (CRC) will continue to apply.

T Master Tugendhat I agree with Kirsty that, in many cases, repealing the Human Rights Act would make no difference. The requirement of the rule of law that fundamental rights be respected may, in many cases, be an adequate basis for the enforcement of human rights in this country. If the UK were to withdraw from the ECHR, British people would no longer be able to enforce the ECHR at the ECtHR in Strasbourg. But, as Kirsty says, the United Kingdom would be bound to the same obligations under other conventions, to which UK judges would continue to have regard. A criticism of the common law as a means to enforce human rights is said to be that human rights in the UK tradition are merely residual. It is true that the common law does not include any enforceable restraint preventing Parliament from overriding rights. But it is not correct to say that common law rights are merely residual. That ignores the way that the common law has developed, and it ignores the way that the judges have interpreted statutes. The Human Rights Act s19 requires that a Minister of the Crown in charge of a Bill in either House of Parliament make a statement to the effect that, in his view, the provisions of the Bill are (or are not) compatible with the Convention rights. By s3 the Human Rights Act also requires the court, so far as it is possible to do so, to read and give effect to legislation in a way which is compatible with Convention rights. That is a modest strengthening of the common law, which already requires the courts to assume that statutes are compatible with human rights unless the contrary is clear. Under the common law the courts always have attempted, so far as possible, to interpret statutes as compatible with human rights, although it is true that the common

If that is so, it may be asked why the Human Rights Act was necessary at all. There is no doubt that it was necessary, as Lord Hailsham, Sir Leslie Scarman and other distinguished writers and lawyers argued for some 30 years before it was enacted. What had gone wrong with the common law? For the century before the Human Rights Act did judges not protect human rights as much as they had in previous centuries. Whatever the reason, it is the opposite criticism that is now made of the judges, here and in the ECtHR, namely that they are too activist. It is often possible to argue and decide cases equally well either on the common law or under the Human Rights Act. Judges can make declarations under the Human Rights Act that laws are incompatible with fundamental rights. But, in some cases, they can also do so without the Human Rights Act. In relation to capital punishment in the Caribbean, the Privy Council has made declarations of incompatibility which had nothing to do with the Human Rights Act, while being bound to uphold capital punishment.3 UK judges are criticized for following decisions of the ECtHR instead of accepting the supremacy of Parliament. The criticism is misplaced. As Kirsty has pointed out, there are cases, such as Hutchinson on life imprisonment, where UK judges have held that they are not bound by decisions of the ECtHR. Another criticism is that the ECtHR and the UK courts have interpreted human rights too widely, by regarding the ECHR as ‘living instrument’. They have interpreted rights by the standards of today, instead of applying the meaning said to have been intended by the framers in 1950. Under the common law the courts have no choice but to apply the standards of today. The common law has been developed over centuries, so there is no single text expressing the intention of any original framer. I think it is a mistake for UK advocates and judges to argue and decide cases under the Human Rights Act rather than under the common law, when either way is possible. I hope that, in future, cases will, wherever possible, be decided under the common law.

Kirsty Brimelow QC Is there actually a problem if we leave the European Convention? As Michael has just outlined, the Human Rights Act did not make common law redundant. Common law continued to develop, incorporating the Human Rights Act as well as our other case law. What is all the fuss about, if there is a new Bill of Rights? What differences might it bring? Well, a new Bill of Rights could omit certain Convention rights. As yet, I don’t think anything has been specified as to which they would be. It could express limitations upon certain rights more broadly than the limitations as they exist now in the Convention. It could prescribe how certain rights should and should not be interpreted. It could make it clearer than the Human Rights Act does that domestic courts do not have to follow the jurisprudence of the European Court, although I query how that would fit with following international law. It could remove or dilute the court’s interpretative duty, presently contained in Section 3 of the Human Rights Act.

Social Context of the Law

It could remove the court’s power, presently found in Section 4, or declare the incompatibility of primary legislation that cannot be read consistently with Convention rights. Do such changes matter or are they not usual changes which regularly occur within the UK’s legal framework? They do matter. If a new Bill of Rights does lessen human rights protections for individuals of this country, that would not only be a backwards step for this country, but also for Europe, and internationally, because of the UK’s place on the international stage. There is a raft of international human rights treaties which protect and, in fact, generally contain all the rights which are within the European Convention on Human Rights. You’ll be familiar with the ICCPR, the International Covenant of Economic, Social and Cultural Rights, CAT and the CRC. The ICCPR is similar to the ECHR in terms of the rights it established. But how does it apply? The UK is a dualist state. This means that domestic law is required for international law be directly enforceable. However, the UK also remains bound under international law to ensure its domestic practice complies with the obligations which it has undertaken under the international treaties. Increasingly, we will, as advocates, refer to the international law framework, and increasingly our judges, in particular leading the way at the Supreme Court, engage with this development of international law within the body of our law, enriching English and Welsh law. The CRC, is now domesticated in Wales. It is directly applicable and England is unlikely to lag behind. Indeed, it does not, in terms of the judicial pronouncements. Recently, Lord Reed and Lady Hale have made very strong pronouncements regarding the applicability of the CRC (ZH (Tanzania) v Secretary of State). Also, Munby J has gone so far as to say that human rights law imposed enforceable obligations on a public body to have regard to the principles of the CRC. He said that they should consult the CRC. There now is only one State which has not ratified the CRC – the United States. It is the most ratified treaty. Also, there is strong evidence that it is part of customary international law. Customary international law forms part of the common law; it can be applied directly by our courts, providing it is not incompatible with an Act of Parliament. The CRC is very relevant today, in an age where child refugees have been drowning off the shores of Europe. A little on torture, another treaty which is very entrenched. Prohibition of torture is a rule of customary international law and it is highly unlikely that this is going to be somehow replaced by a new Bill of Rights. So what is the problem with the Human Rights Act? Well, there could be a little legal battle in the torture field, because there are rumblings that when there is a threat to national security, there should not be an absolute prohibition on torture but more of a balance brought into play. However, this viewpoint is unlikely to gain serious traction in Parliament. Why not rely entirely on treaties? There is the considerable barrier to citizens that the UK has not ratified many of the optional protocols. This means that individuals cannot access the monitoring bodies. This is a substantial limitation upon protections for individuals. We have the International Court of Justice. This enables states to bring action against states and states can bring actions on behalf of individuals.

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The European Union (EU) is a separate animal to the ECHR, but the two actually do interlink, with the EU Charter, allowing European Convention rights to be interpreted alongside the Charter. The EU Charter is domesticated and has been incorporated into our common law. It has been bound up in our case law and is highly influential in the judgments that have been developed by the courts. They will not stop. Some good news, as well, perhaps rather surprising news, with the attacks on the European Court, is, in fact, that the Supreme Court has gone further than the European Court. For example, there is one case dealing with the positive duty imposed by Article 2, right to life, on the state to take preventative operational measures to safeguard an individual’s life. The European Court had said that that duty was owed to a detained psychiatric patient, whereas the Supreme Court actually expanded the duty to apply to a voluntary detained mentally ill patient. The European Court then caught up with the Supreme Court. This is one example which demonstrates interaction and knocks out this concept of the European Court telling the Supreme Court what to do. Finally, statistics from the European Court are that there have been 305 judgments against the UK finding at least one violation of the European Convention. However, these cases are over decades and should be seen as an important check upon breaches of human rights protections for those within UK jurisidiction. I would expect citizens to embrace those decisions and what they represent, namely that UK courts may not always adequately protect the human rights of individuals without the European Court.

CONCLUSION: If the UK were to leave the ECHR, it is clear that the human rights law, as protected by the European Convention, would still be protected in the UK legal system. Through developments in common law, the jurisprudence based on the ECHR norms and the international human rights treaties which contain similar norms to those within the ECHR, will ensure many human rights will remain protected. However, as demonstrated by the statistics and by the barriers in accessing international law remedies, some protections may be lost. Also, there is a bigger picture. What are the lessons learned after World War II of the need for international responsibility for and indivisibility of human rights? Since the Conservative Party pronouncements in 2014, there was an immediate effect. Ukraine refused to follow an order of the European Court of Human Rights to reinstate a judge of its Supreme Court. Also, at that time, there was an international warrant outstanding against President Kenyatta. On 6 October 2014, he said that he took support from the Conservative Party’s attacks on the European Court to make his own case against the international human rights system and the International Criminal Court. Whilst the fog can be cleared around the human rights target to show it as 800 years of protections for British people fought for by British people, if Theresa May, our Prime Minister, does as she has pledged and takes aim and fires at that target, it will be the repressive and persecutory states that cheer the loudest.

Sir Michael Tugendhat and Kirsty Brimelow QC

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Pegasus Scholars

HIGH COURT OF UGANDA, KAMPALA By Rosalind Earis, 6KBW

For three months at the end of 2016, I was a Pegasus Scholar in the High Court of Uganda, working under the auspices of the Chief Justice, Uganda’s top judge, and supervised by the Technical Advisor to the Judiciary. This was the first time any Pegasus Scholar had undertaken a placement within the judiciary in Uganda, and as I turned up for work in the High Court in the centre of Kampala – an elegant if crumbling colonial building, constantly encircled by the giant storks indigenous to the city – I was not sure what exactly to expect.

As it turned out, I was given a giant mahogany desk and presented with an enormous copy of the draft sentencing guidelines intended for use in all Ugandan lower courts, for complete review. These guidelines were a somewhat maverick piece of work by the draftsman: Uganda is the only jurisdiction in Africa to use sentencing guidelines, and they had created theirs more or less from scratch. My job was to review and redraft them, and to formulate guidelines for offences not already covered in the draft, from first principles if necessary. This led to my having to ponder, for example, the real mischief in the offence of ‘pretending to tell fortunes’. Despite the title of the offence, there is no mens rea of dishonesty…so is it a mitigating factor that you genuinely believe you can tell fortunes? Or is the mischief of the offence the risk to the public posed by your actions, such that your mistaken belief is irrelevant to sentence?Day-to-day, I worked with the Technical Advisor to the Judiciary, a position with no real equivalent in the UK, but in essence a hybrid of a Law Commissioner and a civil servant at the Ministry of Justice. The majority of my work was focused on legal research and on proposals for law reform. The Ugandan appellate courts draw heavily on case law from other common law jurisdictions, so in all legal research I carried out – such as on whether a term of imprisonment for life would be unconstitutional, or on possible reform of the laws of bail – I ranged well beyond my usual borders of English and Welsh case law. My final major area of work was in assisting the Case Backlog Management Committee – a group of senior judges, academics and others drawn together to hear evidence and identify methods of tackling Uganda’s chronic and growing backlog of cases. The system is stymied by multiple factors, including a lack of court time, a culture of chronic adjournments and a lack of investment to ensure that courts can operate smoothly. Sitting in consultations with lawyers in private practice, academic experts, NGO experts, prison officers and judges of all ranks, and hearing their thoughts on the causes of the problem and how to tackle it, gave me a fascinating insight into how the Ugandan system runs.

I was also able to attend mediation sessions addressing property disputes, to marshal in the Anti-Corruption Court, to attend workshops to train magistrates in court technology, and to attend conferences with the Chief Justice. Outside the business of the courts, I particularly enjoyed the regular brass band parades which marched through the court’s car park, requiring all cases to be abandoned temporarily. Uganda might have seemed a slightly surprising choice for a Pegasus Scholarship, since its legal system is less developed than that of most of the other Pegasus jurisdictions. For example, Uganda lacks an online repository of court judgments, which makes legal research much harder; its higher courts sit only sporadically owing to funding disputes, and the decisions of its lower courts are occasionally stained by corruption. However, I found it to be an excellent place to experience as a young lawyer: it is a relatively young jurisdiction which is developing rapidly. I worked on really meaty legal projects, which, at home, would either not arise at all or would be dealt with by others. In the absence of precedent, I frequently had to return to legal first principles, or to explore how other countries had tackled the problem. When considering legal reform, I was considering not tweaks to make the system better, but the possibility of fundamental overhaul of whole areas of law or procedure. The Ugandan judiciary are very open to change and innovation, are well-organised in their efforts to effect it, and are frank about the challenges facing their legal system. The benefits of the placement flowed both ways: I provided perspective from a respected and developed common law jurisdiction, and they provided the opportunity to learn rapidly and to be legally creative. Lastly, I did not waste the opportunity to see a bit of Uganda, a country which is truly beautiful, and whose people were very hospitable to me. My week nights were (sometimes) spent sampling Kampala’s famously good variety of restaurants, and my weekends exploring islands in Lake Victoria, going on safaris, climbing volcanoes, floating up the Nile, and seeing gorillas and chimps in the rainforest. I am extremely grateful to those who helped me organise the placement and especially to Andrew Khaukha the Technical Advisor. I thank them for their endless help, their warm welcome, and willingness to pander to my requests to see more and more variations of court and hearings. My only regret is not being able to organise a visit to the notorious Luzira prison in time. I hope a future scholar will be able to do so. As a result of this placement, plans are afoot to ensure a regular supply of Pegasus Scholars to the Ugandan judiciary, in return for exposure of the type I received. I hope this can be a long and fruitful cooperation. Rosalind Earis

Pegasus Scholars

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NEW ZEALAND By Victoria Heasman, Queen Square Chambers

At the end of the British summer of 2016, I flew to Auckland, New Zealand, to enjoy the summer all over again and, more importantly, to experience life as a lawyer in New Zealand. Not only did it mean escaping the winter, but it was a unique chance to work abroad and to travel to a part of the world I had never visited. I was placed with Meredith Connell (MC), which is the office of the Crown Solicitor in Auckland. The Crown Solicitor is responsible for the conduct of Crown prosecutions in the High Court and District Court on behalf of the Crown. Much of MC’s work is criminal but they also have a strong civil side to the business. I worked in the employment team during my office-based hours as well as visiting the Employment Court and the Employment Relations Authority. I also spent a lot of time in the High Court, the venue for the most serious criminal offences. Some differences between the High Court and our Crown Court are immediately obvious: for example, the only wig in sight was in a display case in the foyer along with other such ancient relics! My time in the High Court was mostly spent observing the trial of a man accused of murder and GBH. This, like many other cases involving violence, concerned gang culture, the difference here being that it was the victims who had gang affiliations, not the defendant. It was a tense but highly interesting trial to watch, especially as the junior had recently returned from her own Pegasus Scholarship experience in London. My scholarship has given me experience of a wide range of practice areas, which reflected my common law practice at home in Bristol. While at MC, I had a great balance between doing paperwork and having the freedom to watch court proceedings. I drafted opinions and pleadings whilst in the office and enjoyed the experience of observing others in court. It was interesting (and very instructive) to be able to watch proceedings as an observer rather than as an active part of proceedings.

As a self-employed barrister used to life in chambers (and buying my own equipment), walking into MC and being given a swipe card, a laptop and a stand-up desk with two monitors was quite a novelty! Everyone made me feel very welcome and immediately treated me as part of the team. Due to my scholarship running over the festive season, I attended MC’s Christmas party along with a team Christmas party hosted by the head of my team at her lovely Devonport home and experienced a true New Zealand tradition: a Christmas BBQ! Part-way through my time as a Pegasus Scholar, I was due to spend two weeks with the Crown Law Office (the body which provides legal advice and representation services to the government), and so I flew to Wellington on 13 November, only to be woken at midnight by my hotel room shaking. New Zealand did not ease me in gently; my first earthquake was a 7.8! Offices were closed until engineers could declare them structurally sound, and so I returned to Auckland and MC welcomed me back a little earlier than planned. My weekends were as busy as my weekdays as I travelled the North Island seeing all that beautiful New Zealand has to offer. I am a keen scuba-diver and spent much of my time under the water, and achieved my lifelong aim of seeing bottlenose dolphins when a pair of them swam over my head whilst on a dive in Northland. I also dived the Rainbow Warrior, the HMNZS Canterbury and the beautiful Poor Knights marine reserve. I drove as many miles as possible and travelled all the way up to Cape Reinga, the northern-most tip of New Zealand, visiting glow-worm caves, botanical gardens and learning to surf. During the celebrations marking the signing of the Treaty of Waitangi, I watched over 100 men row a huge waka (a 35-metre-long ceremonial Māori canoe), which had been first launched in 1940 to celebrate the 100th anniversary of the signing of the treaty. Overall, I had a brilliant time as a Pegasus Scholar and cannot thank the Pegasus Trust enough for the opportunity. It has been a fulfilling experience both professionally and personally, and one I would highly recommend to any juniors thinking of applying. Victoria Heasman

The Inner Temple Yearbook 2017–2018

Pegasus Scholars

NEW YORK By Zeenat Islam, 25 Bedford Row

I pursued a career at the Bar because I was looking for a platform to contribute towards social justice. I have always been acutely aware that the legal system is just one avenue through which meaningful change can happen – but in and of itself, it is often not enough. Whilst establishing myself as a practitioner, I am constantly seeking ways of combining my legal practice with my interests and experiences in academia, education, policy and activism. I have therefore always been interested in a model of lawyering which is intersectional and collaborative. It is on this journey of understanding that I discovered how I can use my role as a barrister to contribute towards meaningful social change, and how I found the Centre for Constitutional Rights (CCR). The CCR is a non-profit legal and educational organisation committed to the creative use of law as a positive force for social change. The CCR’s model is unique in its ‘beyond the courtroom’ approach. It is combined with education, media and other forms of advocacy in working towards genuine social change.

I applied to the CCR for a placement in New York City for autumn 2016 to learn more about their work and their approach, in the hope that it would help me understand and shape my own. Having received an offer, I applied to the Pegasus Trust for a scholarship and to the Bar Council for an International Legal and Professional Development Grant to fund my placement. In my scholarship interview, when asked how I thought my experience at the CCR could benefit my work in the UK, I explained that I was interested in the combination of law with other strategies to achieve more socially just outcomes. Having been lucky enough to be awarded a scholarship and a grant, I began my Pegasus Scholarship with the CCR in September 2016. I worked within the Guantanamo Global Justice Initiative and spent some time working for the International Human Rights Team. The work was creative and cutting-edge, particularly because the legal work was combined with press conferences, demonstrations, film screenings and other community events. The CCR also hosted numerous workshops and seminars from partners including Israeli and Palestinian NGOs, former clients, a delegation of European Roma lawyers and other activists, covering topics such as Standing Rock. In addition, I attended the UN for an event with the Special Rapporteur on Torture, talks at NYU, Columbia Law School and an International Law Conference at Fordham University. A highlight for me was meeting Linda Sarsour, an American Palestinian human rights activist and co-organiser of the Women’s March on Washington.

The biggest lesson from my time at CCR was learning about ‘movement lawyering.’ I saw first-hand that CCR is a unique powerhouse of movement lawyers – that is lawyers who work alongside social movements. There are lawyers who recognise their role as one which creates spaces for people to mobilise and access the system. They are lawyers who are led by the voices of directly impacted communities and who understand the importance of ‘being on the ground’ – as opposed to a model, where we observe from afar and assume what is best for a community without any real insight. I will never forget the devastating feeling when it became clear that Donald Trump would be the next President of the United States. I felt fear – for women, people of colour, Muslims and countless other minorities and vulnerable groups, and also for what this election symbolised. However, I will also never forget the sense of community, resolve and fight at the CCR after the election results. CCR’s work is defined by two fundamental beliefs: justice is possible and power must be challenged. Despite the election results, being amongst lawyers at the CCR who fight every day to hold the government to account instilled me with hope that an alternative world is possible. My experience at the CCR has been transformative in many ways. It reminded me of why I came to the Bar, my identity as a lawyer and the importance of using whatever platform we have to try and create a world where every individual can live in their full humanity. In these increasingly challenging times, there has never been more of a need for a new movement of ‘people lawyers’. I am currently working on an initiative following my experiences at the CCR and would warmly welcome anyone interested in this model of lawyering to get in contact with me. I owe a huge debt of gratitude to the Pegasus Trust, Bar Council and CBA for what was a truly life-changing experience in a magical city. Zeenat Islam

Pegasus Scholars

The Inner Temple Yearbook 2017–2018

SINGAPORE By Nicholas Towers, St Ives Chambers

The six weeks I spent at Rajah & Tann Singapore LLP on my Pegasus Scholarship were absolutely unforgettable. Across the water from the iconic Marina Bay Sands Hotel, I was based in the international arbitration and construction practice group but also worked closely with the commercial litigation team. I immediately started at the deep end, assisting Avinash Pradhan to prepare for an appeal to the Court of Appeal (Singapore’s highest court) in a shipbuilding dispute involving claims of unlawful means conspiracy. As a very junior tenant, my exposure to litigation in the Supreme Court in England has been limited, so the opportunity to work on an Apex Court Appeal, attend the hearing and go back towards the end of my stay for the judgment was fantastic. I also had the chance to work with Francis Xavier SC in an international arbitration between Singaporean and Indian companies. I worked all weekend as part of his team preparing for the cross-examination in the case. The hearing lasted a week and we worked with a number of Indian Senior Advocates, so I also learnt a great deal about practice in India!

In addition to this, I was involved in various High Court matters, which varied from hotel investment disputes to construction projects in Myanmar, to an application for the ad hoc admission of an English Silk to the Singapore Bar. Singaporeans have a reputation for working hard and I certainly did. My last day at the firm ended with a case management conference in the Singapore International Commercial Court, which started at 5pm, with Sir Vivian Ramsey calling in from London. All in all, it was a very busy period, but beyond the hard work I made lasting friendships with some of the wonderful people at the host firm. There was some time to relax and I went on many memorable outings with colleagues from Rajah & Tann, including a trip to the famous Ah Seng Durian shop, where we had a Durian feast. I also decided to stay with a local family rather than a hotel for the duration of the scholarship, which was a wonderful way to become immersed into Singaporean culture. It also meant I learnt how to ride a hover board, which you can legally ride on the pavement.

Nicholas Towers

The Inner Temple Yearbook 2017–2018

Pegasus Scholars

STRASBOURG By Charley Pattison, Queen Square Chambers

To many, the European Convention on Human Rights has become symbolic of the dilution of British sovereignty, and that feeling was probably at its peak in October of 2016 as I prepared to travel to Strasbourg and begin a wonderful three-month adventure working at the European Court of Human Rights. The time I spent at the ECHR and the work I saw there allows me to say with confidence that the role of the court is vital for human rights protections in Europe.

Whilst at the ECHR, I was placed in the UK Division of the Registry, supervised by the Non-Judicial Rapporteur. I went into a team that had recently taken on two new junior lawyers. They were from very different backgrounds, but both were in the role of filtering cases and drafting notes to the single judge, recommending what course of action should be taken with an application. My role was largely working alongside the two junior lawyers to process and filter applications. The cases I was working on related to a variety of alleged Convention breaches, which meant spending a lot of time researching and seeking guidance from colleagues. The breadth of knowledge within the team meant that guidance was always on hand, and my own experiences as a criminal barrister were often helpful in return. The variety of cases I worked on ranged from prisoner voting, to discrimination in the workplace, to the breach of Article 1 of Protocol 1 in respect of Hawala banking. One of the more shocking facets of the cases I was dealing with was the number of applicants in person. This often made processing the application difficult as the court has very strict admissibility rules, but it is important to balance this against an allowance for non-legally qualified persons completing the application form. During my time at the court, I was fortunate to sit in on two particularly interesting Grand Chamber hearings. One was a case that I had followed from the original decision, which determined the rights of the individual in the workplace to privacy over personal messages they sent using their work ‘instant messenger’. We still await the final ECHR judgment. The style of the hearings was very different from my experience of domestic hearings; judges in the UK are generally more interventionist and this contrasts with the very inquisitorial, measured and often very polite manner of the judges asking questions of the advocates in the ECHR.

I was extremely privileged to work with a wonderful group of people whilst in Strasbourg. I had been told before I went that lunch is a big deal in France, and Strasbourg is no exception. One of the best aspects of working at the Court was meeting other lawyers from all over Europe and really making the most of the long lunch break and access to the Council of Europe (and occasionally European Parliament) to share experiences and anecdotes over some tasty (and subsidised) cuisine. This opportunity was priceless, as there was so much to learn from judges from across Europe on exchange programmes, lawyers from many diverse backgrounds and permanent staff of the court at all levels. October to December was a spectacular time to be in Strasbourg. The autumn invited warm lunchtimes at the side of the river and in the parks, and sunset cycles home alongside the canal topped off with weekends camping in the Vosges Mountains. As winter took hold and the temperature plummeted, the centre of the city felt a little as though someone had distilled the spirit of Christmas. The local food and hot wine were an absolute treat after a long day at work and there were four sensational advent concerts in the iconic cathedral and churches. I chose to live a little out of the city in the countryside, which gave me the opportunity to enjoy the 40km round-trip cycle to work every day and to either cycle or hike in the nearby mountains at the weekends. My colleagues and friends had flats in the city centre and there were regular gatherings and generally a very relaxed and welcoming social life with all of the junior lawyers at the court. It was very noticeable how many of the interns were on judicial exchange programmes and how excited people were to discuss their experiences of courts at home and to learn about the UK. During my time in Strasbourg, I learnt a huge amount about the ECHR, human rights law generally, and the culture and style of other European judicial systems. I have returned a much better lawyer, but sadly only marginally better at speaking French. The experience was one of the best of my life and I will be forever grateful to the Pegasus Trust for enabling me to undertake such a wonderful adventure. Charley Pattison

Whilst at the court, I attended a Section Meeting, question and answer sessions with judges, and numerous seminars and lectures dealing with court procedure, case law and judgments. I was in fact very fortunate to attend a seminar from the lawyers who worked on the case of Ibrahim & Others v United Kingdom. It was fascinating to hear the life cycle of a case making it all the way through the process to a judgment in favour of one of the applicants. The legal analysis in this case was very interesting and made me really challenge my own thinking about the competing positive and negative obligations in respect of the ECHR. The views of the lawyers in the court seemed to be very divided over the outcome of the case.

Photo: Symbiot/Shutterstock.com

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The Inner Temple Yearbook 2017–2018

NEW ZEALAND By Laura Searle, Walnut House Chambers

For my Pegasus Scholarship, I spent 12 weeks in the Litigation Team at Russell McVeagh (RMcV), one of the pre-eminent commercial firms in New Zealand. During my time with RMcV, I worked on a range of files. For example, I assisted with the submissions for a judicial review challenge to ratings decisions made by Wellington City Council, worked on the statement of defence and thirdparty claim in a building dispute, conducted research on how section 28 of the New Zealand Bill of Rights Act 1990 (NZBORA) has been applied by the courts and worked on Accident Compensation Corporation (ACC) cases. I also had the chance to volunteer with community law as a ‘kaiāwhina’, assisting the RMcV juniors during their free advice sessions.

Wellington is a great city and its relatively small size makes it easy to live in. There is no lack of places to eat and things to do. It came to feel like home very quickly. Even the weather in ‘Windy Wellington’, which seemed to be able to change from winter to spring to summer and back to winter in the space of a few hours, became an integral part of my experience. I cannot mention the weather without also mentioning one of New Zealand’s less desirable features: earthquakes. The Cheviot earthquake struck not long before I finished at RMcV and was an unnerving experience, even for the hardened Kiwis. Nevertheless, while this fearful Brit might have struggled for a little while to live by the mantra ‘keep calm and carry on’, Wellingtonians certainly did not and, within a few days, city and office life was almost back to normal.

While New Zealand law felt very familiar in many ways, there are key differences between the two systems. One difference is that lawyers are admitted to the Bar as both solicitors and barristers, with some going on to become ‘barrister sole’, usually much later in their careers. Firms will sometimes engage external counsel, but most of the cases that I worked on were run in-house from beginning to end, including the advocacy. As a result, I was able to follow the course of the litigation more closely and gain greater insight of what exactly goes in to running a file, rather than coming on board just before a trial, as is often the case at home.

Outside of work, there was plenty to keep me busy. Three months is not nearly enough time to see and do everything that is on offer, but I gave it my best shot. Whether I was tackling the Paekakariki Escarpment on the Kapiti Coast, visiting geothermal Rotorua, touring art deco Napier or enjoying the Toast Wine Festival in Martinborough, every weekend was filled taking a plane, train or car to somewhere new. I do not think that anyone could tire of the beautiful scenery and I never ceased to be amazed by how incredibly dramatic and diverse the New Zealand landscape is.

With regard to court experience, I was very fortunate that while I was in Wellington, the Taylor case was heard by the Court of Appeal. It is the first case in which the High Court has issued a formal declaration of inconsistency of a piece of legislation with NZBORA, despite such a remedy not having been provided for in the Act. It is a landmark case, and it was fascinating to observe the court and advocates grappling with complex questions of constitutional, public and human rights law as they pertain to New Zealand, but also the extent to which UK case law is still relied upon. In general, I found that where there were gaps in New Zealand case law, the UK was usually the first port of call, although Australian and Canadian judgments are also frequently cited.

I had heard about the Kiwis’ reputation for hospitality, but the welcome that I received surpassed all expectations. Within my first week, I had been invited to lunch by a senior member of the Judiciary, been shown around the Supreme Court and invited to RMcV’s litigation training weekend at Turangi, near the Tongariro National Park. I was very much made to feel part of the team from the outset and will miss (among many other things) the endless morning teas, Friday Fives and the stunning views across Wellington Harbour from the office. It is testament to the enduring links between the English and New Zealand Bars that the Pegasus Scholars are so generously received. I had a real sense during my time here of the strength of the ties across the common law world and the importance of preserving them.

The highlight of my placement was attending the New Zealand Parliament for a seminar day, where we heard from prominent politicians from all parties, sat in on the Health Select Committee receiving submissions on assisted dying and watched Question Time. While the New Zealand system of government follows the Westminster model, the Parliament is unicameral. Mixed Member Proportional (MMP) voting has ended the twoparty system and given a much greater role to minority parties in New Zealand’s democracy. It was a particularly interesting time for me to compare the two Parliaments, given the political fallout from the Brexit referendum.

I would like to extend my sincere thanks to the Pegasus Trust, Crown Law and RMcV for this wonderful opportunity. I leave with memories that I will treasure and experiences that have enriched me both professionally and personally.

Photo: Hizor/Shutterstock.com

Laura Searle

The Inner Temple Yearbook 2017–2018

Pegasus Scholars

HONG KONG By Amy Rollings, 9 St John Street

I nervously arrived in Hong Kong on a bright, sunny morning in October 2016. The view from the plane was spectacular: skyscrapers amongst masses of greenery, beaches bordered by an alluring green-blue sea. I felt, and continue to feel, incredibly fortunate that I had been given the opportunity to live and work in Hong Kong for a little over two months. My first placement was at the Hong Kong International Arbitration Centre (HKIAC) during Arbitration Week, where I was placed amongst a team of interns from around the world. The monetary sums involved were eye-watering (up to £100 million in one case) and a stark difference to my life as a junior barrister arguing about small disputes worth tens of thousands of pounds. Hong Kong’s close proximity to China, combined with its strong financial and banking sectors, has led to it to become one of the world’s leading arbitration centres. The more time I spent at HKIAC, particularly during Arbitration Week, the more I felt that this was likely to become the future of commercial litigation in the long-term.

Next, I marshalled in the High Court of Hong Kong with Mr Recorder Coleman SC. I observed the trial of Rurik Jutting, the British banker who raped and murdered two Indonesian women who were working in Hong Kong. Mr Jutting was unanimously found guilty on both counts of murder and given two life sentences in a country where ‘life’ means life. During the trial, I sat with women from charities who represented foreign domestic workers (mainly Indonesian and Filipino). These workers make up in excess of 300,000 of the population, but are substantially underpaid with limited employment rights (in a legal system that is generally laissez-faire and favours employers). The trial highlighted the sad reality of that life and served as a stark juxtaposition to the wealth enjoyed by bankers in Hong Kong.

“ The training was excellent; professional actors taught students the importance of enunciation, intonation and speaking slowly in a structured manner. Whilst I have been an advcate for four years, a refresher in the basics was most welcome!”

In the evenings during the time I was marshalling, I was fortunate to participate in advocacy training for pupil barristers. This was much more intensive than the English equivalent of advocacy training, due to an LPC-style course where wouldbe barristers select extra modules, enabling them to apply for pupillage. The training was excellent; professional actors taught students the importance of enunciation, intonation and speaking slowly in a structured manner. Whilst I have been an advocate for four years, a refresher in the basics was most welcome! My third placement was at Temple Chambers, with the same mentor, Russell Coleman SC. Around this time, there was constitutional unrest in Hong Kong. Two years after the Umbrella March, in November 2016, a pro-democracy march drew thousands of people after Beijing announced it was reviewing a case in which two pro-democracy lawmakers were banned from taking their seats in Parliament. There was a general feeling of discontent during this time: “Hong Kong is not China,” said some, whilst others were afraid to ‘bite the hand that feeds them’. Finally, I enjoyed a spell in the litigation team at law firm Howse Williams Bowers, where I advised on employment law and personal injury matters. My trip came to a close just in time for the office Christmas party, where I was kindly gifted a Star Wars outfit complete with ‘lightsaber’. I can only hope the photographic evidence never reappears!

Amy Rollings

Pegasus Scholars

The Inner Temple Yearbook 2017–2018

NEW ZEALAND By Tristan Salter, Five Paper

During the summer of 2016, I headed to the Southern Hemisphere and experienced a Wellington Winter. For the three months I was in Wellington, I was placed with Luke Cunningham Clere (LCC). LCC, as the office of the Crown Solicitor in Wellington, are responsible for all criminal prosecution in the region. Having never practised criminal law, it was a new and exciting challenge. One of the brilliant things to see was how, in a fused profession, junior barristers take on significant roles in major cases. It was very interesting to see the work that LCC undertook and to watch and learn from some incredible advocacy. Everyone at LCC was hugely welcoming and I have to say a huge thank you to Tim Smith, one of the partners, who organised my time with them. The rest of the firm were always amazingly helpful and I had fantastic time learning from them. I was involved in a range of criminal and regulatory cases, helping with background research and drafting submissions. One of the great aspects of going on the Pegasus Scholarship in New Zealand was getting to know more about the country, including the social and political issues which are highlighted in the legal process. It was interesting to see how the legal systems in New Zealand and the UK had taken different paths from the same starting point, reflecting the unique features of each country’s politics and culture. While LCC mainly specialise in criminal and regulatory work, my focus during my time with them was on the civil work they undertake, including working on a major case arising out of auditor’s duties. I also helped on and researched insolvency cases, including cases on the disclaimer of onerous property, liability of parent companies, and insolvency practitioners’ request for information. Many of the provisions are very similar to English law, and I took away from it the importance of looking at other jurisdictions when case authorities are not forthcoming on a particular aspect. Living in Wellington, you only need to go 5 or 10 minutes from the city centre to get out into countryside to tackle some of the hills that surround the city. Everyone in Wellington seems to be very active. They all make the most of the incredible landscape, running up hills after work with head torches lighting the route or cycling down them at speeds that seem impossible. I was also lucky enough to be in Wellington while an international film festival, craft beer festival, chocolate festival and a monthlong burger competition between most of the restaurants in Wellington were all taking place. Suffice to say, I struggled round all of the above.

I was able to travel around New Zealand and most weekends I ventured out to try and see a bit more of this fantastic country, seeing more of the settings for The Lord of the Rings than I thought possible. Highlights included the beautiful scenery at Queenstown, swimming with dolphins in Kaikoura and wine tasting in Blenheim. I was also lucky enough to be in Wellington to see the All Blacks defeat Australia in the Bledisloe Cup. With the help of Tim Smith, I was also able to work for a couple of weeks at the government legal offices, Crown Law. There, I was able to work on interesting cases involving judicial review and immigration. I helped to draft submissions on the collateral use of documents in a long-running deportation case and in another case researched and drafted submissions on aspects of EU law. I also spent some time with lawyers from the New Zealand Army, Navy and Air Force, discussing the principles of armed conflict. A varied experience was made possible by the amazing staff at Crown Law, especially Maria Clark, who helped me settle in and ensured that I got to work on interesting cases. The Pegasus Scholarship allowed me to have an incredible time in Wellington. The cases that I was able to see and work on were varied, and helped me to develop new skills. Seeing how a fused profession works was also very interesting. Everyone I met was so welcoming and eager to ensure that I got the most out of the experience. Their hospitality made the trip a truly brilliant experience. A tour of the Supreme Court by Sir Terence Arnold was a highlight; the beautifully designed courtroom perfectly blended the symbols of New Zealand’s history with the technology needed for a modern court. I am very grateful to the Pegasus Trust for enabling me to travel to Wellington. The experience taught me a great deal, and I am sure that I will be using the lessons and skills that I acquired there in my future career at the Bar.

Tristan Salter

The Inner Temple Yearbook 2017–2018

Pegasus Scholars

DUBAI By Peter Smith, Carter-Ruck

My placement in the United Arab Emirates began in September 2016, when my wife and I landed in the heat, haze and humidity of late-summer Dubai. The three months were split between the Dispute Resolution Authority (DRA), the superintending body of the Dubai International Financial Centre Court, and a law firm, Al Tamimi and Company, in their DIFC office.

The DIFC is a free-trade area in Dubai that has pioneered an English-language court to promote domestic and international commerce across the Gulf region. The DFIC Courts are staffed by judges drawn from common-law jurisdictions across the world – presently Singapore, Malaysia, New Zealand, and England and Wales – as well as Emirati judges who bring knowledge of Arabic and the UAE’s system of law, based around a civil code. The DIFC Courts comprise both first instance and appeal courts, and have jurisdiction primarily to hear disputes involving parties within the DIFC. Not only can the courts enforce foreign judgments and arbitral awards originating elsewhere against parties and assets within the DIFC itself, but orders of the courts can be taken onshore to the local Dubai courts for execution outside the DIFC. Al Tamimi, as the largest Arab law firm, draws much of its work from disputes across the Middle East and North Africa, and I was thrown into some cross-border commercial matters with deep political ties. Al Tamimi’s DIFC office has a specialist DFIC Courts litigation team who work closely with the firm’s arbitration practice, lawyers from Dubai, other emirates, and abroad. My work with the team mainly involved considering and advising on the registration and enforcement of arbitral awards and foreign judgments, and preparing skeleton arguments and applications for hearing before the courts (including questions for the crossexamination of a director from a judgment debtor company). The training and networking at the firm were excellent. I took every opportunity to attend events both in-house and outside, including the annual fundraising gala for the DIFC Courts’ pro bono unit. There is a large amount of pro bono employment work before the Small Claims Tribunal, where guest workers from places like South Asia, the Philippines and Indonesia bring claims for unpaid monies against the hotels and restaurants based in the DIFC area. The DRA runs the DIFC Courts, including the Small Claims Tribunal, an Academy of Law, the DIFC-LCIA Arbitration centre, and a Wills and Probate Registry. I was fortunate to be working directly for its British chief executive, Mark Beer OBE, who set a number of tasks that gave me a good opportunity to delve into 100

the law and procedure of the court and its rules, as well as see closely the workings of the DRA. I saw first-hand how British legal influence permeates all of the DRA’s operations. For instance, the Academy of Law runs various training programmes for lawyers and students, and is forging closer links with British law schools to develop the teaching of law at all levels in the UAE. The Will and Probate Registry is a considerable innovation in the Middle East; rather than using sharia law, which governs the distribution of property after death according a strict set of formulae that many consider unfair, non-Muslims can now register wills that adopt English law and give considerable testamentary freedom. One large piece of work I was involved in concerned the negotiation and drafting of various agreements and memoranda of understanding with the courts and emirate of Ras Al Khaimah, which culminated in a signing ceremony and rather opulent lunch at the Ruler’s Palace. The scholarship placement was not all work, of course. Dubai’s beaches and public spaces become even more pleasant once the humidity and heat subdued in the cooler months. We were lucky to travel all over the UAE, including Abu Dhabi for the Grand Prix, and to Oman and several other Arab countries. A brace of Islamic and public holidays gave a chance to see the city adopt new pageantry and experience Emirati hospitality. I was also welcomed thoroughly (with the traditional libations) by the British expatriate legal community and the informal Bar in the Gulf network. It is unusual but not impossible for employed barristers to receive Pegasus Scholarships, and I was lucky that my thenemployers gave me unpaid leave to take this magnificent opportunity. It helps that most UK firms are looking for international reach if they do not have it already; the placement abroad is an ideal way to build professional and lay relationships overseas and further one’s own legal knowledge and experience. I would like to thank Eamonn O’Reilly at the Inner Temple for his support throughout the application process and beyond; Master Philip Punwar, a barrister and partner of Baker Botts in Dubai, for arranging the placements and inviting my wife and me to numerous social and professional engagements; Mark Beer and his team at the DRA and DIFC Courts for their friendliness and generosity; and Rita Jaballah and Tarek Shrayh in the team at Al Tamimi for being so welcoming that I ended up staying! Peter Smith

Pegasus Scholars

The Inner Temple Yearbook 2017–2018

USA By Heather Oliver, Three Raymond Buildings

Perhaps the most vivid of the many wonderful memories I have from my Pegasus Scholarship in the USA is listening to Suzanne Judas, a partner at Holland & Knight in Jacksonville, Florida, speak of her experience as one of the first Pegasus Scholars to come to London from the US. She talked of her time with Lord Goff, the first Chairman of the Pegasus Trust, the formative effect it had on her career, and the enduring benefit she derived from exposure to the legal system of a foreign jurisdiction. As with so many of our experiences on this scholarship, the memory of her words was no doubt enhanced by the setting; her speech took place on the beautiful terrace of our hosts as the sun set over the St Johns River in front of us. Suzanne’s account of the warm welcome she received in the UK and the access she had to the most absorbing cases, lawyers and judges was certainly borne out by the rest of our trip. The Pegasus Scholarship programme in the USA is an extraordinary opportunity to observe the American legal system, and I am so grateful to the American Inns of Court for their kind and attentive organisation of an incredible timetable of experiences, both professional and social. From our base in Washington DC, we visited many different local courts, ranging from the ‘rocket docket’ of the Alexandria General District Court in Virginia to the more rarefied environs of the US Supreme Court. As a criminal practitioner, I was perhaps most interested by the former, and if I thought before that our magistrates’ courts offered summary justice, they now seem positively sedate by comparison. The speed with which cases were dealt with was breathtaking. One trial in absence began and ended within 30 seconds. An application for a protective harassment order was determined without legal representation or formal sworn evidence; the complainant’s phone was handed up to the judge to read WhatsApp messages between them. The use of a pistol emoji on the complainant’s part proved decisive. By my count, we saw 75 cases before 3pm, still with time for a lunch break. This was swift, practical, broad-brush justice, and it was invigorating, if dizzying, to observe.

Another point of difference was the sentencing regime, which we were able to observe on our visit to the US District Court in DC. With prosecutorial agreement as to the sentencing range such an important aspect of plea-bargaining, it was interesting to see how this intersected with probation recommendations and residual judicial discretion over sentence, and what impact this had on certainty for the defendant. Ultimately, the plea in mitigation we heard was familiar territory and highlighted that for all the technical differences between our two jurisdictions (the approach to juries and disclosure (‘discovery’) being two more notable examples), there are many parallels in advocacy content and style. More similarity was evident in our meetings with the respective offices of the Alexandria District Attorney and Public Defender – the latter’s concern with personnel and funding shortages being all too recognisable. This being Washington, it wasn’t all courtroom drama. We were privileged to enjoy tours of the East and West Wing of the White House, of the Department of Justice, of the Pentagon (including a meeting with the Judge Advocate General of the US Army), of Congress, and a meeting with Brigadier General Mark Martins, the Chief Prosecutor of Military Commissions, which were all absolutely fascinating. As was an afternoon spent on patrol with the Alexandria Police Department, during which I managed to get caught up in a domestic disturbance of some volatility and, as a result of nothing but my terrified silence, was unfortunately mistaken for being the sergeant in charge. Our exposure to every facet of the system even extended to a tour of the local jail, complete with slightly bemused inmates. In addition to Washington DC, we travelled to Delaware, where we delved into the world of chancery, in which this state (heavily populated with corporate entities) specialises and which derives much from its English roots. We were able to observe proceedings in the Delaware Supreme Court in Dover, which were notable as our first exposure to the strict time limits imposed on appellate argument in the US, regulated by amber and red warning lights, and in one particular hearing enforced by the bench simply walking out while the advocate was in full

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Pegasus Scholars

flow. Delaware also provided us with the setting for our most memorable presentation on the English legal system – a busy crab shack on the banks of the Leipsic River, where our words were punctuated by the sound of hammers being applied to hundreds of crab claws from the dining room next door.

We were also invited to Philadelphia, where we visited both state and federal courts, fortified by a truly massive Philly cheesesteak and Amish doughnuts at the Reading Terminal Market. Maybe it was the warmth of the sun, or the people we met, but our visits to Florida and Texas will forever be a highlight of my scholarship. Our hosts in Jacksonville, Florida, could not have done more to welcome us. We toured the stadium of the Jacksonville Jaguars with their Chief Legal Officer; sat in on a conference with local clients; spoke with judges and lawyers at the Duval County Courthouse; were shown round the local FBI building; toured the offices of the Wounded Warrior Charity; and visited the US Attorney’s Office. We received presentations on the use of depositions and mediation in the US system from Holland & Knight, experienced all the emotion of a naturalisation ceremony, and met with the US Navy Judge Advocate General Corps outside Jacksonville. Our timetable was rich with interesting, entertaining and absorbing experiences. Dominating all of it was the anticipation and excitement of the Florida v Georgia college football match, for which we were invited to the tailgate party beforehand (also known as the World’s Largest Outdoor Cocktail Party) and to the match, as well as that important prequel, a moot between their respective law schools. Houston was similarly wonderful. Of many exciting experiences, we were particularly glad to take part in a round-table discussion with partners and associates at Vorys, Sater, Seymour & Pease, where we were able to ventilate the similarities and differences between the practice of law in the UK and US. We also observed oral argument in the Houston Court of Appeals and in the bankruptcy court. And I have never had a BBQ quite like that which we ate in Texas. Of course, in the background of all of this was the 2016 presidential race between Hillary Clinton and Donald Trump. With so many echoes of the Brexit referendum, it was

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fascinating to speak to a diverse range of voters about the issues in play. We even became caught up in a rally led by Donald Trump Jnr in Florida, and have returned to the UK with an enviable stash of campaign memorabilia from both parties. As Suzanne Judas found at the outset of the Pegasus Trust, the broadening of horizons inherent in viewing first-hand how justice is administered elsewhere is invaluable. This scholarship was a completely unique and remarkable experience, and one I shall always remember. Heather Oliver

...But What is The Bar Liaison Committee?

The Inner Temple Yearbook 2017–2018

“…BUT WHAT IS THE BAR LIAISON COMMITTEE?” By Simon Baker, Chairman of the Bar Liaison Committee

“The Bar Liaison Committee? What’s that?” I have lost count of the number of times that I have been asked that question over the years by members of the Inn. Indeed, I suspect that a very great number of those reading through the Yearbook and reading this article will be asking themselves that very question. Given that I am coming to the end of my 16 years on the committee (with the last three having been as chairman), I am probably as well qualified as anyone to answer the question, and the Yearbook seems a pretty good place to do it. The BLC is a committee of members of Hall (i.e. members of the Inn who are not Benchers), including representatives from all of the circuits, with the role of ensuring that the voices of the ordinary members of the Inn are heard at all levels of decision making (and to help convey the Inn’s voice back to those members). Members of the BLC sit on all of the Inn’s committees including the Education & Training, Scholarships, Outreach, Advocacy Training, Library, Estates and Finance committees. The BLC even has three members who sit on the Inn’s Executive committee. It is clear from meetings and conversations with our opposite numbers at the other Inns, they are envious of the extent to which the BLC is trusted and respected by the Inn, and of the degree of real access and influence that the BLC enjoys (although probably less envious of the workload that can go with that). It remains a matter of some considerable pride to us that Inner Temple is the only Inn where non-Bencher representatives are included and listened to in this way at all levels. The BLC has also helped to shape the voice of the Inn to the outside world through drafting the Inn’s responses to consultations from the Government or Regulators affecting the Bar, and justice more generally. The BLC is made up of both elected and co-opted members, and elections are held every three years. The next set of BLC elections will be held in November and December this year, which brings me to the not terribly well hidden agenda behind this article. I want to encourage as many members of the Inn as possible to put themselves forward for election to the BLC (or at least to participate in the voting process). I can honestly say that I have never regretted being on the BLC. It has given me a chance to be involved in incredibly interesting

issues both within the Inn itself (such as Project Pegasus and the proposed reforms to future Bar training) and across the Bar more generally. What is more, it has given me a chance to meet and work with a host of fascinating people ranging from the brightest and best upcoming students who will be the future of our profession right through to Court of Appeal and Supreme Court judges. It can be hard work, especially if you find yourself on a working group responding to a consultation or a strategic review, but as is the case with most things, you get out what you put in and it is always interesting and worthwhile. If you are interested in becoming involved in the BLC (whether through election or co-option), you will find all the details you need in relation to the nominations process below and on the Inn’s website. Alternatively, you can contact Henrietta Amodio (hamodio@innertemple.org.uk). Finally, as my time as Chairman draws to a close, I would like to take this opportunity to thank the members of the committee for all of their hard work and support over the last 3 years. Although it is somewhat invidious to single people out, I do particularly want to thank Tim Petts who has been a steadfast Vice-Chairman and especially Henrietta for the enormous amount of work that she does behind the scenes and without whom the BLC would have achieved far less and would have been far less fun.

Simon Baker For a full list of Bar Liaison Committee members, see pages 152–153

BAR LIAISON COMMITTEE ELECTIONS NOVEMBER 2017 1 November

Online nominations start

13 November

BLC members formally retire at BLC meeting

23 November

By 5pm deadline for nomination forms

27 November

Online voting commences

4 December

By 5pm online voting ceases

11 December

BLC meeting with new members

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Master Toulson

MASTER TOULSON Supreme Court judge who helped to clarify the concept of joint enterprise in murder cases.

When a celebrity involved in a sexual threesome sought a Supreme Court ruling to protect his privacy, Roger Toulson was unimpressed. The tale included lurid accounts of how PJS had engaged in group sex with AB and CD after asking if they were “up for a threeway”. PJS was also offered the chance to have sex in a paddling pool filled with olive oil. Toulson, however, was, a lone dissenting voice and in May last year the court ruled by a majority of 4-1 that PJS, his partner and their children should not be identified. The story had come to light when AB and CD agreed to sell their account to The Sun on Sunday, which is owned by News UK, the parent company of The Times. PJS sought an injunction and the case eventually made its way to the Supreme Court. Although the justices accepted that it was easy for anyone with access to the internet or social media to identify those involved, the court ruled that lifting the ban would lead to far more intensive coverage, both in the mainstream media and online, constituting an additional invasion of privacy. Toulson’s view, outvoted by his colleagues, was that “the story’s confidentiality has become so porous that the idea of it remaining secret in a meaningful sense is illusory”. Even today the injunction remains in place in England and Wales, despite the celebrity having been named in Scotland and other jurisdictions. It was not the only free speech case in which Toulson was involved. When James Rhodes, the classical pianist, attempted to publish

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Instrumental, an autobiography chronicling in unflinching detail the sexual abuse he had experienced as a child and his subsequent battle with mental illness, his former wife objected, claiming that it would be detrimental to their child. However, in his Supreme Court ruling in 2015 Toulson declared: “Freedom to report the truth is a basic right to which the court gives a high level of protection, and the author’s right to his story includes the right to tell it as he wishes.” While these cases made the headlines, there were others that were equally important, if not more so. Last year, in a case known as Jogee, Toulson helped to clarify the concept of ‘joint enterprise’ or ‘secondary participation’ where, for example, someone who goads a murderer to kill can be held responsible, even if they did not deliver the fatal blow. He later described Jogee as the most memorable case of his tenure because it corrected “a wrong turn which caused really serious problems in the whole field of murder and joint enterprise for 30 years”. Equally significant was his role in a High Court case in 2012 involving Tony Nicklinson, who was paralysed from the neck down and wished to end his life, but was unable to commit suicide without assistance. Toulson refused Nicklinson’s request for a declaration that it would be lawful for a doctor to assist him (Nicklinson died soon afterwards after refusing food). He later said that changing the law on an issue of this magnitude was a matter for politicians, not for three judges sitting in a court. “Have I got the institutional competence to say I’ve got the answer on this?” he told the UK Supreme Court blog last year.

Celebrate the Life

“I felt very much that this was a matter which ought to be left to parliament.” Earlier in his career, while the presiding judge on the western circuit, Toulson heard several high-profile criminal trials, including that of Robert Ashman, who in 2000 had burst into a surgery being held by Nigel Jones, the Liberal Democrat MP for Cheltenham, with a samurai sword, seriously injuring the MP and killing his assistant, Andrew Pennington, who was also leader of Gloucestershire county council. Ashman was unfit to stand trial, but Toulson oversaw a three-day hearing in which a jury ruled that he had carried out the attack. Ashman was sent to a secure hospital. Toulson was unimpressed by those who believed that they could measure the honesty of a witness by watching their demeanour under cross-examination. “Years of doing my particular area of law led me to believe that some of my clients who I thought were absolutely the most honest were the most awkward and shifty in the witness box,” he explained, “whereas others who I thought were total rogues came across with great smoothness and self-assurance.” Roger Grenfell Toulson was born in 1946, the son of Stanley Toulson and his wife, Lilian. He won a scholarship to Mill Hill School, north

The Inner Temple Yearbook 2017–2018

Toulson served as chairman of the Law Commission from 2002 to 2006 with a remit to identify areas of law in need of reform and consult widely before making recommendations for change. “The government of the day may think them not right or ahead of their time,” he told The Times in 2004, acknowledging the short-term priorities of politicians. “But we have to be concerned with the end-term development of the law. It’s a long game.” He would explain that his aim was to draft legislation having an eye on the deputy district judge in an airless court on a Friday afternoon with two litigants in person and no library; in other words, the law had to be accessible to all, not a few. He was appointed to the Supreme Court in April 2013 and, although he formally retired last September, Toulson remained on the court’s supplementary panel. He was hearing cases until only three weeks ago and some of his rulings will be handed down posthumously. Judge Alison Raeside, his last pupil, said that Toulson was generous, including her in every conference, meeting and hearing and urging her to robe for court, even when not strictly necessary, to “get used to it”. She also recalled fondly how his filing system “was chaotic, and I was often scrabbling about on the floor looking for papers, and blowing the dust off them, when he received a call from his clerks chasing an opinion”.

“ Toulson helped to clarify the concept of ‘joint enterprise’ or ‘secondary participation’ where, for example, someone who goads a murderer to kill can be held responsible, even if they did not deliver the fatal blow.” London, where not only did he sit his O and A levels three years early, he also broke the school record for running a mile. At 16 he went up to Jesus College, Cambridge, where he rowed in the college first boat. He read law, was called to the Bar by Inner Temple in 1969, took silk in 1986 and was elected a Bencher in 1995. He thought of becoming a doctor, “had I had the skills”, but added that he might not have made a success of putting his patients back together: “I’m hopeless at even tying up my own shoelaces.”

Despite walking over Waterloo Bridge for many years, Toulson had never realised that the Thames was tidal until a colleague pointed it out recently. He also had a great sense of fun, taking part enthusiastically in his chambers’ doughnut-eating competitions – no lip-licking allowed. Lady Hale, the Deputy President of the Supreme Court, recalled how on one occasion when they were in judges’ lodgings Toulson persuaded his clerk, a former Queen’s bagpiper, to serenade her after dinner on her birthday.

He joined chambers at 1 Crown Office Row as pupil to Arthur Mildon, although he later confessed that, being in rooms at sub-basement level during the era of miniskirts, he was often distracted by the ladies walking outside the window. In 1973, he married Elizabeth (Lizzie) Chrimes, a fellow lawyer who was High Sheriff of Surrey in 2009-10 and is patron of several charities. She survives him with two sons, Thomas and Henry, and two daughters, Susie, who is married to Steve Brine, the MP for Winchester, and Rachel.

Another colleague recalled how Toulson was once involved in a case that had been running for several months when the judge, fed up with numerous delays, demanded to know what the costs of all parties were. When Toulson’s clients disclosed theirs, the claimant regarded them as being very modest and decided to discontinue the case against them.

In 1987, Toulson represented Luton Town in a conflict over FA Cup ties being played on its artificial pitch. A decade later he presided over an appeal case when a musician who was disfigured in the King’s Cross fire disaster sought £1 million in damages, having turned down an offer of £350,000. Toulson awarded him £110,427, which, because it was less than the amount originally offered, meant that the musician had to meet London Regional Transport’s legal expenses. In 1996, he co-authored with Charles Phipps Confidentiality, a work that has been regularly updated as the law evolves.

Toulson came to court and told the judge: “My lord, I was listening on my way in today to Thought for the Day. The speaker drew attention to an old Chinese proverb, ‘If you sit in a chair with your mouth open for long enough, eventually a roast duck will fly in.’ “My lord, I feel like the man who has finally had the roast duck.” With that he got up and left. Lord Toulson, Justice of the Supreme Court, was born on September 23, 1946. He died during heart surgery on June 27, 2017, aged 70 Courtesy of The Times

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The Predicament and Agency of Refugees

THE PREDICAMENT AND AGENCY OF REFUGEES From a lecture given by Dr Reuven (Ruvi) Ziegler on 13 February 2017

In many ways, it is the best of times and the worst of times to be talking about refugee law. The predicament of refugees was encapsulated by Chaim Weizmann in his evidence before the Palestine Royal Commission in 1937 just before the outbreak of the Second World War, when Jewish refugees were starting to flee the Third Reich, arriving from Germany, subsequently Austria. He said very gloomily that “for refugees the world is divided into places where they cannot live and places into which they cannot enter”. This was an impetus for the creation of the international refugee law regime in the 1951 Convention after the Second World War, as part of an effort to codify international human rights law obligations throughout a number of international law fields.

The “political predicament of refugees” is the situation in which a refugee has been recognised as such but then lives in a different country, one that is not his or hers. They are deprived, as Hannah Arendt articulated in 1951, not of the right to freedom, because that is now granted to them in their new state of asylum, but rather of the right to action – not of the right to think whatever they please, but of the right to an opinion that counts politically. There are over 140 countries that are signatories to the Refugee Convention including of course the United Kingdom. All the

My second proposition is that, after recognition, it is desirable that they be treated by those countries that have granted them asylum as if they were their citizens in respect of rights that under international law those states may and indeed usually subject to a citizenship qualification. Protection under the 1951 Convention has historically been interpreted as being fundamentally external protection, that is protection that is granted to a person outside their country. In light of a human rights friendly interpretation, that protection should also have and does have an internal dimension, that is, the way an individual can expect their state to treat them. After recognition, what happens to refugees? They may enjoy a conditional security of residence. This is in contradistinction from permanent security of residence which is provided through naturalisation, by holding the citizenship of a country. The Convention itself and human rights law more generally does not require countries of asylum to naturalise refugees, even for long term refugees. The only other country that would be legally required to take back that recognised refugee is their own country of origin, their own country of nationality. That country is a country to which that person cannot be sent. When a country grants somebody refugee status, neither they nor the person granted refugee status know how long that status will have to last. That is because the Refugee Convention sketches out a closed list of six conditions under which Refugee

“ …recognised 1951 Convention refugees are qualitatively different than other noncitizen residents. What they lack after recognition is full membership in an effective political community and they lack it for an indeterminate period of time.” other members of the European Union and the United States are also signatories to the 1967 protocol which extended the geographic application of the Refugee Convention to the entire world and its temporal application beyond 1951. The underlying assumption for my analysis is that a country of asylum is a country that is generally treaty-compliant, that has applied its interpretation of the Refugee Convention definition to a specific individual and has found that person is entitled to refugee status. The analysis is one of the point in time at which the individual is already a 1951 Convention recognised refugee. My first proposition is that recognised 1951 Convention refugees are qualitatively different than other non-citizen residents. What they lack after recognition is full membership in an effective political community and they lack it for an indeterminate period of time.

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Convention status ceases. The assumption is that a refugee, once recognised, retains that status and potentially retains that status indeterminately and indefinitely. This leads to three predicaments that the refugee suffers. First, unlike other individuals, they have no realisable right to return to their state of nationality. Second, they also do not have access to the diplomatic protection and counter resistance of their state of origin if they are to travel to a third state. That indeed is a built-in requirement of having been recognised as a refugee. Finally, they are excluded from electoral processes both in their state of origin and in their state of asylum. The first element is the non-realisable right to return. Refugees have a right under international law to return to their state, but it is a right they do not wish to avail

Reader's Lecture Series

“ Neither the Refugee Convention nor human rights law require states of asylum to enfranchise any non-citizen.” themselves of. Indeed the state of asylum recognises that it is a right they cannot avail themselves of, which is why they recognise that person as a refugee. In which country do they have a realisable right to return to? Interestingly, this element of the predicament is one that the Refugee Convention does address. Article 28 says that when you have got somebody who is a refugee lawfully staying in your country, then you are required to issue that person with a Convention travel document. The Convention says explicitly that each contracting state undertakes that the holder of its travel document shall be readmitted to its territory at any time, during the period of its validity. When the United Kingdom issues a travel document to a refugee to travel to a third country, it treats that refugee from the perspective of re-admittance the same way that it treats its own citizens. It does so because refugees cannot rely on the passport of any other state. That fundamentally and qualitatively distinguishes that person from any other non-citizen who is in the United Kingdom and has the citizenship of a state which is not a persecutory state. Here, the Refugee Convention has seen a predicament and has addressed the predicament. I turn to a point where it has not done so: the lack of diplomatic protection and assistance. The recognised refugee is unable by definition to avail herself of the protection of their country of origin. If she is stuck in Dulles airport in Washington DC, she cannot contact the embassy of her country of origin in the United States. Nor can she contact the British embassy in the United States under international law as it currently stands. If they did, the United Kingdom would probably refuse to provide them that assistance and the United States would probably refuse to receive representations from the United Kingdom on behalf of that refugee. It is that predicament that the International Law Commission has recognised in its draft articles on diplomatic protection. Finally, the recognised refugee is excluded from electoral processes. In relation to elections of their country of origin, assuming that country holds elections, those refugees who have been recognised as such have no realisable option of returning to the country of origin in order to participate in elections. Indeed, if they were to return to that country or indeed to vote outside that country by going to an embassy of that state and wishing to participate in elections they will be perceived, and UNHCR says so in the guidelines, as re-availing themselves of the protection of that state, as retying themselves politically to a country with which their ties have been indeterminately, not permanently, severed. The position of the recognised refugee is distinguished from the position of somebody who is a conflict forced migrant. As part of conflict resolution, there is a process by which transitional elections are being held. Indeed in those situations refugees are often amongst those most encouraged to participate in the election as part of the process of their repatriation. Generally speaking, recognised refugees are entitled not just to discover protection under the 1951 Convention but indeed to protection under other human rights treaties that a state of asylum has signed. The Convention predicted that there may be further protections under human rights law for refugees. It stipulated in Article 5 that “nothing in the Convention shall

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be deemed to impair any rights and benefits granted by a contracting state to refugees apart from this Convention”. Neither the Refugee Convention nor human rights law require states of asylum to enfranchise any non-citizen. This of course does not mean that a country is prohibited from extending the franchise to non-citizens. This country, for instance, extends the franchise in general elections to any commonwealth citizen who is a resident in the United Kingdom, even though commonwealth citizens resident in United Kingdom are subject to immigration control. There is much in international refugee law, interpreted in 2017 in the light of human rights law, in relation to the meaning of protection to militate in the direction of extending that right. The first point to make in this context relates to the expressive meaning of recognition. When the state of asylum has recognised somebody as a refugee, the state has said, effectively, we recognise that person has no functional political ties to their state of origin which they can exercise. The conditions under which that has transpired are conditions in which the Refugee Convention recognises as ones that mandate recognition and protection. So the Refugee Convention definition is declaratory. You recognise somebody as a refugee because they are a refugee; they are not a refugee because you recognise them as such. When the state extends that form of protection to a refugee, it recognises the political predicament. I suggest there are good grounds to say that it should also recognise the need for political remedies. There is a second element here and that is the element that concerns the point about the inter-determinacy of refugee status. When a state of asylum grants refugee status then unless it is willing to extend an offer of naturalisation, it has no control over how long that person will remain a refugee. It will either depend on the actions of the refugee or on occurrences that are external to the state of asylum. I suggest a state of asylum says to a person, “We consider you now to be somebody who is indeed in need of a political community, who may be with us a for a long time and who in our mutual interest should feel a part of society. We therefore believe that you should have a stake in society and should participate in its affairs.” That person should indeed be a person whose opinions are meaningful and actions are important. It would be entirely sensible and entirely within the spirit of the Refugee Convention, if not within the requirements of that Convention, to grant that person not just refugee status, which the state has already done, but also access to membership in its political community.

Dr Reuven (Ruvi) Ziegler Associate Professor in International Refugee Law, School of Law, University of Reading and Academic Fellow of the Inner Temple The full version of this lecture is available at www.innertemple. org.uk/education/lecture-series-2017 Voting Rights of Refugees available at: http://www.cambridge.org/gb/academic/subjects/law/humanrights/voting-rights-refugees?format=HB&isbn=9781107159310#I zX62Hpmp0YSFBRb.97

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Lest Ancient Amity Be Forgot

LEST ANCIENT AMITY BE FORGOT By Master Cryan

Ancient organisations tend to have ancient traditions and in a way it is sad that in the last few decades a number of the Inn’s traditions have disappeared. Now, the Head Porter no longer blows the Inn’s silver bound horn at 6.50pm outside Hall to tell those working or living in the Inn that dinner will be served in ten minutes. Other ancient formalities are no longer observed. Perhaps this is for the better. Things move on, but happily the friendship and collegiality of the Bar and Bench and of the Inns remains immutable and a very important part of our approach to the administration of justice in this country. In the United States the extraordinary success of the American Inns of Court, founded over the same period of which I have just been speaking, has demonstrated what an impact this can have on the standards of the profession. Chief Justice Warren Burger saw the benefits of the Inns and sought to emulate much of what is best in them.

Photo: Barbara Neumann

The Inns each do an important job, but for the Inns to exist each in their own bubble would greatly detract from their effectiveness in nurturing and supporting the Bar and the administration of justice in England and Wales. This has been recognised for well over a century when the Inns of Court came together to found their own School of Law. Now they are concentrating more than ever on their joint efforts through the Council of the Inns of Court and Inns of Court College of Advocacy, but the building blocks of these organisations remain the Inns themselves and their extraordinary traditions of service to the next generation and loyalty to the integrity and promotion of our system of justice.

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Happily, the Inns cooperate with each very constructively, whilst maintaining an independence which stimulates innovation and a variety of new ideas. Nowadays there are frequent meetings between the Treasurers and Sub and Under Treasurers of the Inner and Middle Temple. But it was not always thus, as I was reminded when I was prompted to write this article at an Amity Dinner given at the Inner Temple for the Bench of Gray’s Inn on 8 February 2017. The tradition of Amity Dinners has not died. From time to time, each Inn will invite one of the other Inns to dine with it. The Inner and Middle Temple have such exchanges annually, but the Amity Dinners with Gray’s Inn are less frequent, which is a pity given what the history books call the “Ancient Amity” between the two Inns. I knew of its existence, but when pressed by two other past Treasurers at the Amity Dinner, I had nothing much to say about its origins – thus this article. There is physical testimony to the existence of the traditional friendship between the Inner Temple and Gray’s Inn. It is hard to miss, but initially puzzling. The grand 1730 iron-work gates to the Inner Temple Gardens opposite Crown Office Row carry a splendid cast bronze Pegasus, but just below it, is an oval badge with the Griffin of Gray’s Inn clearly to be seen. Why? Why also are there three prominent representations of Pegasus in Gray’s Inn, one in stone over the archway leading to Gray’s Inn Road from Gray’s Inn Square and the others stand on shields supported by two fine stone Griffins either side of the 1723 gates to the south end of the Gray’s Inn Walks. Clearly the early 18th century was a period of close association between the Inns, but the roots of that friendship seem to stretch back much further than that. The Inner Temple’s records confirm that

Treasury

The Inner Temple Yearbook 2017–2018

Amity Dinner for Gray’s Inn on 8 February 2017

the display of the Griffin of Gray’s Inn preceded that time by over a hundred years. The accounts for 1617-18 show that one Bowen, a painter, was paid for “gilding the two Pegasus and two Griffins”. That work seems to have been associated with the painting of posts and railings, but it is not clear where the insignia were located or whether they were new. The presence of these physical mementos of close association take us back exactly 400 years, but the records and actions of the Inns speak of yet a longer association. In edition No 123 of Graya, Gray’s long standing yearbook, there is reference to the theory of Hugh Bellot in his history of the Inner and Middle Temple, to the effect that the amity between the two Inns stretches back to their inception and various events of the 13th century. Bellot was an Inner Templar and so it is embarrassing to say this: whilst an engaging enough writer, he lacked scholarly rigor. His theory is ill-founded, and roundly rejected by respected legal historians. It is necessary to consider safer sources in the shape the Inns’ own records to see what may confidently be said. Sir Frank MacKinnon of the Inner Temple, a much sounder historian than Bellot, in a paper on the “Ancient Amity” traces it to before the dispute between the Inner Temple and Middle Temple which arose in the early years of the reign of Elizabeth I and concluded in 1561. There had been a suggestion that the Inner Temple should transfer one of its three associated Inns of Chancery, Lyons Inn, to the Middle Temple. After the intervention of Robert Dudley, Earl of Leicester, on the Inner Temple’s behalf, the Queen commanded the Lord Keeper, who had been charged with resolving the matter, to drop it.

The Lord Keeper was Sir Nicholas Bacon, a prominent Bencher of Gray’s Inn. The recorders (or, records) of Inner Temple’s parliament on 16th November 1561 refer to Sir Nicholas being of Gray’s Inn, “which hath been of ancient amity, familiarity and friendship with this our House…” Whether these were merely words of diplomatic flattery is difficult to know. It would seem that in the early years of the Inns of Court, Gray’s and the Inner Temple were the larger and more significant bodies and tended to collaborate with each other. The closeness of the Inns in the late 16th and early 17th centuries is demonstrated by the records which show various invitations and collaboration in the production of Revels, and invitations to dinners and meetings accompanied by the consumption of muskadyne (from an American Grape, which must have been rather exotic in 1613) and hippocras (mulled wine) and cakes. The best accounts of entertainment between the Inns is a detailed account of a dinner given in the Hilary Term of 1700 by the Benchers of the Inner Temple, which Gray’s records show was reciprocated the following year. The relations between the Inns clearly remained good for many years after that, but it seems that it was not until 1927 that the tradition of Amity Dinners was fully reinstated by the Treasurers of the day, Sir Francis Kyffin Taylor and Sir Dunbar Plunket Barton. They have been repeated at irregular intervals ever since with singular and undiminished amity. The dinner in 2017 was presided over by David Pittaway QC, Treasurer of the Inner Temple and Baroness Hale of Richmond, Deputy President of the Supreme Court, as she then was. His Honour Judge Donald Cryan (Hon) LLD 109

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Artificial Intelligence

LAWYERS NEED TO UNDERSTAND ARTIFICIAL INTELLIGENCE – NOW! By Kay Firth-Butterfield

Nowadays, it is rare to open a paper or magazine without seeing an article about Artificial Intelligence (AI) or Robotics. The articles are often accompanied by photographs of the Terminator or a scary robot, thus, part of the work which we have been doing at the Inner Temple in 2017 has been to examine what is actually meant by Artificial Intelligence and what its development will mean within the practice of law.

Members of the Inn may not consider this to be a crucial part of their ongoing training but I encourage further thought; AI will be everywhere. It is the fuel of the Fourth Industrial Revolution and can already be found in robotic systems like Pepper and self-driving cars, in our smart phones (think Siri and Google Now), in smart televisions, in search engines, in recommendations for what we buy online, home security, personal assistants (think Alexa), decision-making for loans and, famously for beating humans at chess, Go (https://techcrunch. com/2017/05/27/googles-alphago-ai-is-retiring/) and Texas Hold’em poker (https://www.theguardian.com/technology/2017/ feb/05/artificial-intelligence-ethics-poker-libratus-texas-holdemai-deepstack ) to name but a few applications. Recent progress in AI is staggering: recall it was only 2009 when Google started its self-driving car project and the same rapid development can be seen in machine translation, voice recognition, text to voice and facial recognition to name but a few. All these techniques have driven change in the markets we have known and the way we do things, for example, algorithmic financial trading, social marketing, e-commerce, sharing platforms, phones, tablets, education, drones in agriculture and Internet of Things. So how do we define AI? First by noting that AI is software, known as algorithms which do a specific programmed task, and robots are embodied AI software. Secondly, by understanding that AI is not one technology but a range of algorithms which give the appearance of intelligence (Narrow AI). These include reinforcement learning, neural nets, deep learning and more which are not at all like the Terminator. However, since early 2014, luminaries such as Stephen Hawking have been concerned about the possibility of humans creating an AI which not only can perform all the same intellectual activities as a human better than we can, but also will have the potential to destroy us, either deliberately through malice or because of poor programming (AGI) http://www.bbc.com/news/technology-30290540. The former scenario is the common narrative for dystopian films. The latter is best described by Nick Bostrom when he suggests that an AI which is badly programmed to make paper clips would use all of its intelligence to defeat attempts by humans to switch it off whilst diverting ever more resources to the creation of paperclips (https://www.theguardian.com/ books/2014/jul/17/superintelligence-nick-brostrom-rough-ridefuture-james-lovelock-review . Of course, there is no reason why such AIs should be dangerous to the human race, or our planet, but whilst the possibility is there eminent scientists, such as Stuart Russell and those at Deep Mind, are working on designing an infallible ‘off-switch’ or diversionary tactic. It is variously estimated that we are 20-90years from AGI so the work we will be doing as lawyers with AI is with algorithms 110

which are described by Vint Cerf as “Artificially Ignorant”. These are AI algorithms which are brilliant at maths and statistics from which they can calculate actions. Think of the self-driving car which is programmed to decide whether it is safe to pass another car; essentially, it is calculating, at high speed, the various risks of the manoeuvre before a decision is made. In this task, it is as clever as a human (probably it is a better driver because it does not suffer from our distractions) but it is not intelligent; it does not even know that there is a world outside the repetitive calculation it is doing to pass cars. As barristers and judges, we will increasingly encounter AI in our work; some sample areas are discussed:

LABOUR LAW AND LABOUR RELATIONS: To comprehend the ways in which AI will interact with the law it is necessary to understand that, whereas dumb machines automated the physical labour of humans, AI enabled machines will be automating the repetitive cognitive abilities of humans. Therefore, tasks which require repetitive cognitive work will be the first which AI will be able to do – faster, more diligently and better than humans. With suggestions that many may lose their jobs (http://www.oxfordmartin.ox.ac. uk/downloads/academic/The_Future_of_Employment.pdf) before ‘new collar’ jobs (https://www.usatoday.com/story/tech/ columnist/2016/12/13/we-need-fill-new-collar-jobs-employersdemand-ibms-rometty/95382248/ ) are created we need to think about how our labour laws should apply to, for example, humans working in unison with robots, redundancy if humans are being replaced by robots and how our benefits laws might reflect these new realities. The informal and gig economies are already causing new statutory and legal considerations.

TORT: As AI embedded robots start to take on more roles in which they engage with humans the liability questions will become more complex. Where the algorithm is a ‘blackbox’, in other words difficult, some would say impossible to know what it was ‘thinking’ at the time of an accident how can lawyers and judges make liability decisions? Likewise, should we allow developers to release AI algorithms without requiring them to make updates as necessary? Will manufacturers of such algorithms remain liable for their work during the time it is in use and would that even be possible or should AI enabled robots be given legal personhood? (http://www. europarl.europa.eu/news/en/press-room/20170110IPR57613/ robots-legal-affairs-committee-calls-for-eu-wide-rules).

HUMAN RIGHTS LAW: Narrow AI depends for its abilities on the collection of large sets of data about people and things; data, according to The Economist, is the new oil (https://www.economist.com/news/ leaders/21721656-data-economy-demands-new-approachantitrust-rules-worlds-most-valuable-resource). This creates privacy issues which the EU is trying to address through the General Data Protection Regulation, which will also be adopted by the UK regardless of Brexit (http://www.eugdpr. org/ ). Understanding these data privacy issues and helping

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clients seek redress will become a new area of legal work. As self-driving cars come onto the road further regulations, such as those recently published in Germany, will need to be considered (http://www.germany.info/Vertretung/usa/ en/__pr/P__Wash/2017/06/21-AutonomousVehicles.html). The IEEE recommends the construction of a Personal AI Privacy agent to protect data privacy and give the user control over what data is shared whilst ‘Edge’ data keeps data in the hands of individuals not in public clouds and allows them to share what they wish and commercialise that sharing. AI can help us in the fight against modern slavery, it is better and more agile at checking data than humans, for example in supply chains. Google has created an algorithm which helps police find sex slaves; it does so by matching the millions of photographs of hotel rooms it has on its database to the backgrounds in photographs of slaves that have been taken in hotel rooms (https://play.google.com/store/apps/ details?id=com.exchangeinitiative.traffickcam&hl=en). What, if any, evidential issues arise from this use of the technology? Additionally, the UK government is now working on the legal status of child sex robots. http://responsiblerobotics. org/2017/07/05/frr-report-our-sexual-future-with-robots/ Algorithms which can change the face and words spoken by a person can be a substantial hazard to ascertaining the truth in court and in our democracy (https://www. fastcodesign.com/90133566/watch-this-video-an-aicreated-of-obama-its-the-future-of-fake-news)

REGULATION: It is often said that regulation stifles innovation but regulation in this space seems necessary to protect the millions of customers who will buy and use AI enabled devices. Useful regulatory frameworks are those which encourage innovation allowing designers, developers and users of AI to know the limits of their risk. For example, in banking and financial services there are many regulations, but AI has enabled an end run through the combination of bitcoin and other crypto-currencies and digital autonomous organizations (DAO). (https://techcrunch. com/2016/05/16/the-tao-of-the-dao-or-how-the-autonomouscorporation-is-already-here/) DAOs are driven by computers which hold assets through digital currencies, published on blockchain rather than in human control. Smart contacts which cannot be turned off or reprogrammed, become autonomous. Thus, once proof of the contract having been fulfilled is obtained the contract will be finalized, all without legal help or arbitration or judicial oversight. Although, currently, this is more hype than action in traditional companies AI can be a helpmate to humans when serving as board members.

CRIMINAL LAW: This lack of transparency in AI systems leads to discussion as to whether such systems should be used to help police officers make bail decisions or judges make sentencing decisions. The Durham Constabulary have a trial programme whereby an algorithm helps the custody sergeant make a bail decision and, based on that decision, the accused is eligible, or not, for a rehabilitation program which avoids the Court process. Mindful of the responsibilities inherent in using AI in this way, the developing team have trademarked ALGOCARE as a framework for guidance to officers using the technology. http://data. parliament.uk/writtenevidence/committeeevidence.svc/ evidencedocument/science-and-technology-committee/ algorithms-in-decisionmaking/written/69002.html

CYBERLAW: We have already seen the re-programming of military drones by ISIS and data security breaches are common place. With AI,

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security is even more important. Wired magazine successfully hacked into an onboard system in a Jeep shutting down the car. The possible ramifications of lax security in this area will task lawyers. Even if we are not facing the level of AI about which Stephen Hawking worries, I hope that I have shown that AI will raise significant legal and social issues as its development unfolds. It is perhaps unsurprising, therefore, that major AI companies, such as IBM. https://www.ibm.com/blogs/think/2017/01/ibmcognitive-principles/, and charities have started to create ethical guidelines for the creation, and deployment of AI. These include the IEEE Global Initiative on Ethical Design of AI and autonomous systems (some 250 experts) (http://standards.ieee. org/develop/indconn/ec/autonomous_systems.html); the work of the 100 Year Study on AI (https://ai100.stanford.edu/0), the Royal Society’s Report on Machine Learning (https:// royalsociety.org/~/media/policy/projects/machine-learning/ publications/machine-learning-report.pdf) and the various governmental papers published from around the world, including UK (https://www.gov.uk/government/publications/ artificial-intelligence-an-overview-for-policy-makers ). Additionally, Future of Life Institute have created guiding principles for the design, development and use of AI. (https:// futureoflife.org/ai-principles/). In the UK, there is a British Standard for Robots and robotic devices which provides a guide to the ethical design and application of robots and robotic systems (https://shop.bsigroup.com/ ProductDetail/?pid=000000000030320089). All initiatives seem to be aligned on the need to put the welfare of humans (which includes the welfare of the planet) at the centre of the technology rather than as simply the consumers. The beneficial aspects of AI will be discovered when we use AI to augment, not replace, humans. In their report for the World Economic Forum, Samans and Davis recommend that our technology be designed and used with social inclusion in mind. (https://www.weforum.org/agenda/2017/06/toward-a-humancentered-model-of-economic-growth)

AI AS LAWYER: Already AIs are serving as Board members, doing discovery, augmenting lawyers and judges. Additional major job loss would affect the profession by perhaps creating litigation but leaving people without funds to pay for it. In the face of all of this activity in AI and the way in which it touches society and, therefore, law, Lord Hughes, Master Robinson and I convened two seminars in the first half of 2017. We invited legal scholars and AI scientists to speak and listen, which resulted in stimulating discussion and excellent exchange of knowledge. In conjunction with the Law Society, the Inner Temple will host a one day, and evening, Conference on the law and AI at which the themes in this short essay, and more, will be debated and practitioners will be able to obtain more information and understanding about the technology. As we move forward we can, and should, make decisions about how our society and law will develop for all. There will be many beneficial uses of AI, e.g. help for persons with disabilities to navigate/connect with their world. In fact, the future seems bounded only by our imagination but as barristers and judges we will increasingly be called upon to ensure that it is a future centered on human wellbeing and not the design, development and use of the technology simply because it can be done. Kay Firth-Butterfield Project Head AI and Machine Learning World Economic Forum

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International Outreach

INTERNATIONAL OUTREACH By Master Kabir Sheikh

The Inner Temple has had a busy schedule of international outreach events across a wide spectrum of jurisdictions. The work undertaken has included a programme of law lectures and advocacy training, mooting events and visits by law students from several countries. There have been a number of delegations from the Inner Temple to overseas jurisdictions. The Inn has also hosted lawyers and judges from several countries.

Master Moore-Bick, Master Ong and Sub-Treasurer with Bruniean Members

AMONGST THE HIGHLIGHTS OF THE PAST YEAR ARE:

UPCOMING EVENT:

■ A week-long itinerary in March for four visiting judges of the Bruneian Commercial Court. This consolidated the mission by Master Moore-Bick and the Sub-Treasurer in September 2016 to Brunei at the invitation of the Chief Justice and facilitated by the British High Commission in Brunei.

■ T his year marks the 70th anniversary of the independence of India and Pakistan. Jawaharlal Nehru, the first Prime Minister of India was admitted as a member of the Inner Temple in 1909 and called to the Bar in 1912. Muhammed Ali Jinnah, the founder of Pakistan and its first Governor General of Pakistan was called to the Bar by Lincoln’s Inn in 1896 but was admitted as an Ad Eundem member of the Inner Temple in 1936. Mohandas Karamchand Gandhi, known as the father of India was called to the Bar by Inner Temple in 1891, disbarred in 1922 and reinstated in 1988. The Inn intends to celebrate these links with a lecture, co-organised with the South Asia Centre of the London School of Economics and given by Dr Faisal Devji, University Reader in Modern South Asian History at the University of Oxford, entitled Barrister Gandhi Takes the Stand. The lecture will take place on the date of the Opening of the Legal Year and Gandhi’s birthday, 2 October 2017.

■ A series of Social Context of Law lectures on What is Europe? ■ R eception for the Singaporean Senior Minister of State for the Ministry of Law and the Ministry of Finance ■ Y outh/law student delegation to the Inn from the Indian National Bar Association. The Inn organised talks on the role of the Inns and legal training. ■ A moot between Inner Temple members of the Bar of England and Wales and the State Bar of California to demonstrate differing litigation styles.

■ A judicial administration programme: visit by judges from Malawi, Fiji, Namibia, Uganda, Sri Lanka and the Bahamas. ■ V isit by lawyers from Ghana: talks given on the Inns, advocacy training and international membership associations. ■ A n advocacy training mission to Mauritius, organised under the auspices of the Inns of Court College of Advocacy and in which senior Inner Temple advocacy trainers participated. ■ T reasurer’s visit to Brunei, Singapore, Malaysia and Sri Lanka which included a Malaysian Inner Temple Alumni Association 60th anniversary of independence celebratory dinner.

Saira Kabir Sheikh QC International Committee

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INNER TEMPLE VISIT TO SOUTH EAST ASIA In August 2017, the Treasurer was accompanied by Mrs Pittaway and the Sub-Treasurer on official visits to Brunei, Singapore, Malaysia. The Treasurer and Mrs Pittaway were joined by Master Dias to undertake the Inn’s inaugural visit to Sri Lanka in the first week of September. The eventful itinerary for each jurisdiction included meetings with Chief Justices, members of the senior judiciary, leaders of the Bar and government ministers, a lecture by the Treasurer to the legal community in each jurisdiction on The Anatomy of a Case: A Study of a Clinical Negligence Action, visits to legal education institutions with talks on training for the Bar and ethics, and collegiate events. The Treasurer also officially launched the new Singapore Inner Temple Members Association, for which the Chief Justice, Master Menon, has kindly agreed to be Patron.

Master Treasurer, Mrs Pittaway and the Sub-Treasurer at a dinner hosted by British High Commissioner to Malaysia, Her Excellency Vicki Treadell CMG, MVO (centre left), with His Highness Tunku Ali Redhauddin ibni Tuanku Muhriz of Malaysia (centre right) and distinguished guests

British High Commissioner, Chief Justice of Brunei Dato Kifrawi, Treasurer, Mrs Pittaway

Career Talk by Sub-Treasurer at Maktab Duli Secondary School, Brunei

Reception with Inner Temple members in Brunei

Treasurer launches Singapore Inner Temple Members’ Association at the Singapore Supreme Court

Johor Bahru High Court, Malaysia

Panel discussion on clinical negligence at the Kuala Lumpur Regional Centre for Arbitration

Master Treasurer and Datin Faizah Jamaludin, President of MITAA

Master Treasurer and Master Dias with judges of the Supreme Court of Sri Lanka

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Oral History Project

ORAL HISTORY PROJECT Rebecca Wright, Inner Temple barrister and lecturer in human rights at the Helena Kennedy Centre for International Justice at Sheffield Hallam, interviewed Master Nice (Sir Geoffrey Nice QC), one of the country’s most distinguished human rights lawyers, on 12 April 2017. The following extract focuses on his international legal career.

RW: I’ve read something you said which you may stand by or not, but you said, “I applied for the UN job because it seemed interesting, not to save the world.” GN: Yeah, I’m not going to save the world. RW: But did you have an interest in international affairs, or did you grow up in a family that discussed GN: Well, I stood for parliament twice, in the 80s. RW: Right.

GN: Unsuccessfully, obviously. Of the Liberal persuasion. I had a sort of ordinary person’s interest in international affairs – but I can’t say I was particularly knowledgeable. But when the possibility came, I found it quite intriguing, not least, because – for a number of reasons, but I think I was more intrigued by the process. I thought, well I’m not really persuaded by the adversarial system in England, seems to me good for television, film and adrenalin rushes. But I wasn’t really ever convinced that it is the ideal way to deal with important issues of culpability. I thought it would be quite interesting to go and try something else. And indeed, when I got to the ICTY, the Yugoslav Tribunal, in 1998, on the first case that lasted until just into 2001 – I was quite innovative, procedurally. RW: You had the scope to be – my understanding is there was quite a lot of scope to be – innovative. GN: Yes, well, you had to push quite hard for it., I had a team of three subordinates, two Americans and a Frenchman. At that stage, evidence of prosecution witnesses would not have been foreshadowed by a witness statement or even a summary. And I couldn’t believe it – I could believe it, but I couldn’t accept it. And I said, “As a minimum, you’ve got to serve on the defence a summary of what you expect the witness to say”,which was a bit of a shock to the Americans. I can’t say it was my effort only, but before very long, I can’t remember how it came about, but certainly, partly through my effort, we got full witness statements served.

problem, and the problem in more general terms became completely absorbing. And so, I wasn’t particularly interested in the outcome of the Milošević trial, I just hoped we’d got it roughly right. Or more right than wrong. But I was very interested in the history of how these things happened, or in general, happen. And so that then led me on to what was to follow.

And then my next move, which was in the Milošević trial from 2001 to 2006, I actually reached the position of witness statements being capable of being read and standing as evidencein-chief, which would be entirely standard in our jurisdiction here, but was again the subject of great resistance. Unfortunately, in that case, I didn’t get the change in procedure until so late that it was almost of no use to us. But nevertheless – there were other changes that I was associated with, but there was a big issue with exculpatory material favourable to the defence, which always had to be dealt with and was always troublesome.

GN: I’m not very interested in – despite my anxiety about jury verdicts, which takes over from your good sense, I’ve never been very interested in winning. I’m not at all interested in punishing people, and I’m much more interested in the general aetiology of crimes, than in resolving them through the courts, which seems to me rather late in the day. The important part of a society’s activity should be not here in the law courts, it should be over there in Westminster, changing society so that people do it less.

So, to begin with my interest was in something different But of course, acquaintance with the problem, first of all the specific

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RW: It is fascinating. Obviously, you were prosecuting, but you still pushed to provide the summaries of prosecution witnesses’ statements. In a way, you could see that as being – not beneficial to you.

RW: To stay with the ICTY for now, one of the other questions I had was obviously you have had an interest too – and I’ll ask you a little more about your work at the Bar Standards Board,

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but – something that really interests me are the ethics and the training. There isn’t really a code of conduct for lawyers working in the international arena, and I see, as well, you’ve written about this point. I don’t know if you want to speak a little more about that – I will read one quotation to you, from a 2015 talk, and see whether you stand by it. But you said: “The court” – and you are referring there to the ICTY – “The court was political on various occasions, and posed ethical problems that needed personal fight if I was not to surrender standards and compromise a fair trial.” GN: Well, that’s completely true. It’s an intrinsic problem for that type of court. The long answer includes that any institutionalised law, whether it’s a court, or presumably a corporate office in the City, that poses for an individual practitioner an ethical dilemma, may well pose different problems for the employed corporate lawyer than it creates for the self-employed hired gun barrister. Not because one is better or worse than the other, because the controlling parameters or vectors are different. If you’re in an employed office and the office wants you to behave badly, then the pressures on you to behave badly are enormous. Increase in salary, getting the job, getting promoted, being liked by the boss. The pressures against behaving badly are being kicked out, being ostracized, and so on and so forth. If you are in an independent practice, one revealed ethical misstep could destroy your reputation and that may destroy your career. And it is I think as simple as that. Now the UN or any of the other courts like the ICC, are big institutional offices. They tend to default to mediocrity. Businesses like this are not composed of do-gooders, let alone brilliant do-gooders, they are just big, big offices with lazy people, middle working people, hard-working people. And if they’ve got a politically appointed leader who wants to do politically motivated things, the pressure on staff to fall in line is enormous. And so most cases are not going to throw up those sorts of problems, but once I was in the Milošević case and the chief prosecutor was a woman called Carla del Ponte, whose objectives were not always simply the interests of the individual case, the pressures were sometimes extreme. There are a number of examples which I probably haven’t got time to give now, but they were both related to the procedure of the case, to the evidence that was adduced in the case, the disclosure to the accused, and the dividing them up into categories was also quite tricky conceptually. Because she’s your boss, you owe a duty to obey her. And you cannot break that duty. It’s as much a duty as your duty to the law, providing what she tells you to do is with, is properly – however illadvisedly – within her remit. On the other hand, if she wants you to cross an ethical line, then you have no choice. And that’s the problem that confronts the lawyer. Because often enough, and I found this on the worst examples, often enough the decisions she was making, which I thought were terrible for the case, and sometimes on the edge of ethically improper, were – if you were actually to stand back – you could say, “Yes, she could instruct you to do that and you should obey”. On one certain occasion, but only on one occasion, really, did she cross an ethical line, so I came to the Bar Council and got confirmation of my position and said, you know, “This is not gonna happen”. In the others, you had to fight it within the office. This one, you could fight it – the only occasion when you could fight it – on the basis of external standards. Now, that is immensely difficult for these enterprises; and junior barristers should not go off – junior people starting off at a career – are very ill-advised to go to the institutions and get stuck into them for life, because they’ll never have experience of operating in a more ethically disciplined environment. They won’t actually have that sort of fingertip feel of when things are going badly

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wrong. But the other problem is, if you have become an employed lawyer, you’ve moved your family to say, Holland, from America or Australia. They’re in school. And you’re now confronted with an ethical problem, and you know this very powerful personality is going to try and force something onto you. How is the lawyer going to throw it all away? It’s easy for us from England, because we can just say, “Don’t like it, we’ll go back across the Channel and get on with our lives as independent practitioners, and I’ll probably have another job within, you know, a couple of weeks.” So, having explained that necessarily very crisply, that is the problem. And I summarised this in a part of the book that’s coming out to reflect my lectures; I was actually putting in an appendix of the worst examples of Del Ponte’s rule – subject to the defamation law excluding it – but interestingly enough, I make the point that nearly all of them, except one, were decisions that she was entitled to make, however ill-advised. And that’s something people insufficiently understand. The decisions she could make could corrupt history, they could corrupt the trials, and – not in a sort of financially corruptive way – they could make terrible mistakes. Wreck trials, wreck results. They were still within her power. And that’s quite worrying. And if you go and ask Andrew Cayley, who is also a Bencher here, who is now in charge of the service prosecutions and was the Joint Senior Prosecutor at the Cambodia tribunal, and you hear about the pressures, the political pressures he was under – I don’t know if you’ve read about that, or – spoken to him? These are not unusual things. And – I think my general proposition at the ICTY was that there should have been ethical bodies to whom you could turn for confirmation of your position, or for support.

RW: You still felt regulated by the BSB. GN: You still were. Well, it wasn’t the BSB then, it was the Bar Council. You still were. RW: The Bar Council, yes, sorry. GN: Because you were still a member here, and there was no other body. There wasn’t any other body. And that was the body I turned to, to say what shall I do about this particular problem, the one ethical problem. They said, “Solve it, or leave the case”. It was as simple as that. And I knew that was the answer, right from the beginning. Difficult. Offices which have these over-mighty prosecutors and – Del Ponte was one, and then Luis Moreno Ocampo at the ICC – they all need some form of oversight other than reporting to the UN, or the States Parties, which are political bodies which probably want them to behave in a political way. They don’t want them to behave in a purely legal way. And so, they need to have imposed on them regulatory methods: peer review or something that would free up the individual employed lawyer from having to be quite so confrontational and at such personal risk. And it was quite interesting that Louise Arbour, of whom I am a great fan, instituted indictment reviews, so that if you were going to indict Mr X or Mr Y, the whole office, or a large part of the office, were able to get stuck in. Sometimes it was a bit unpleasant, but nevertheless, by the time Del Ponte came, Del Ponte decided who was going to be indicted, and if people said – something that happened with Andrew Cayley actually, and he’s written about it – if the lawyer said, “There isn’t enough evidence”, she’d go and find some other lawyer whom she just told to do it. And so that’s the sort of problem you face. RW: Do you think these judgments – do you think these international tribunals and courts actually deter mass atrocities?

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Oral History Project

GN: Well, it’s hard to know, but there certainly is anecdotal evidence that some potentates, warlords or whatever you call them, are anxious about being hauled up. So maybe? But also, it’s clear from people like Assad or Kim Jong Un that it’s not necessarily such a preoccupying concern that it changes their conduct.

RW: Things have changed rapidly, I know, in the last few decades, but what advice would you give to young barristers who want to carve a career in international criminal proceedings?

RW: The advocacy is very similar to the type of advocacy that you undertook – I’ve read some transcripts online. Is it similar to what you were doing in the courts of England and Wales? GN: No, it’s very slow. First of all, you’ve got interpretation all the time, which slows it down and also dilutes the immediacy, and generally I didn’t find it often an adrenalin rush at all. It was much more a methodical process that you had to try and get through, usually with an understandable time limit imposed by the court, and you would also find that, pretty well throughout the Milošević case – more than in the earlier couple of cases I did – there was always far, far more material to read than you could ever cope with. So, every day was a question of having stayed up for as long as you – and I didn’t mind that at all, it was so interesting, I couldn’t care less, but – you fall asleep in the middle of the night with files all-round the bed. You get up at an early hour of the morning, go to work, and you still haven’t read anything like enough. And so, it’s nearly always a question of trying to find the best bits and having people to help you. And you can’t blame the system for that, it’s just in the nature of things, that if you’re calling political expert witnesses, there will always be much more than you can be sure you’ve mastered.

So that was interestingly difficult, I think. And there were certainly very few examples of the sort of quick gratification of the kind you get in English cases. And on the rare occasions I came back to England either to do an English case or to sit as a recorder, I became very aware that the speed of the English court, in a domestic case, is in a sense the job satisfaction, the immediate gratification is greater here. You know, over there it’s a huge, lumbering machine. And also, there are a great deal of written pleadings, which, although a perfectly acceptable way of working, a good way of working, also wasn’t the same as the excitement of just tipping up in the Crown Court, dealing with a burglar or a rapist or – whatever.

GN: Well, I think – I can’t say “Don’t do it,” not at all. Although I’m not sure how many opportunities there are going to be left, because these courts are coming to the end of this period of their vitality. And I think it may be impossible for them to continue. But the real advice is, “Do something else first”. By all means do an internship, or a very short job. But I think that one needs to establish oneself – doesn’t matter whether it’s England, Germany, France, Australia, America – you need to establish yourself in a professional culture which will give you a sense of being at home in your profession. Providing it’s a profession that’s got reasonable standards – and they’re all different all round the world – but that will provide you with a starting‑point. People who go to these tribunals and somehow think there’s glamour in being associated with crimes of particularly grave descriptions and then get sucked in and stay for ever. More than just mere anecdotal, my experience is that they’re never going to get from themselves the greatest skills, and they’re always going to be confronting – whether they ever reveal it or not – ethical problems that they may find very difficult to resolve. So, it’s much better to develop somewhere else, and go and do this afterwards. Or just do it episodically. And then I think you can retain professional standards. The thing about professions is – I was thinking about this recently – that people who go into professions aren’t good people or bad people, they’re just ordinary people. Doctors aren’t good or bad, lawyers aren’t good or bad, probably priests aren’t good or bad, they’re just people. But once you’re in a profession, if the profession has basically worthy objectives, it’s the profession itself that somehow drives the individual. Not the individual who drives the profession. So, after a time, if you’ve been in a profession that’s concerned with establishing the truth in a fair mechanism, it doesn’t matter if it’s England, France, Germany, it doesn’t matter where you are, the profession will drive you, and make you behave better – make you behave well. Sir Geoffrey Nice QC and Rebecca Wright

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ORAL HISTORY PROJECT The following extracts are from Rebecca Wright’s interview with Master Higgins (Dame Rosalyn Higgins DBE JSD FBA QC), held on 28 October 2016.

RW: As one of the most highly acclaimed lawyers working in the international arena, Dame Rosalyn has been interviewed multiple times and her opinions, particularly those handed down whilst she was judge at the International Court of Justice, have been analysed and debated at length. This interview will have a slightly different focus, as I am hoping to hear about Master Higgins’s recollections of and interactions with Inner Temple. However, we will also touch on some of the highlights of her remarkable career. In 1958, you completed an internship at the UN Office of Legal Affairs. How did that come about? DR: I am trying to remember who pointed me in that direction but it really was life- changing. I was told that I might have a chance if I put in for this. There were national nominations that could be put forward for these internships, which varied in length and I know the British nominations were whittled down to John Birch, who has had a very distinguished career in the Diplomatic Service and held various ambassadorial posts, and myself and by great good fortune I was the lucky one for that. Our paths continue to cross from time to time and we both had happy careers, so it came about that way. Then one goes into the department of the UN for which one’s studies to date have best suited one, so it could be anything. It could be economics, management, but mine obviously was in the Law Department and there I came under the guidance of the late and truly great Oscar Schachter.

Portrait of Master Higgins as President of the International Court of Justice by Joel Ely

RW: What was the United Nations like at that point?

RW: What made you choose a career at the Bar?

DR: It was new, we are talking about 1958. It had only started little more than a decade before, so everything it had done was manageable and visible and the number of members, of course, was smaller at that time. It was before the great swell of independence in the ‘sixties. It was tremendously exciting and I’ve stayed close to United Nations work ever since.

DR: I believe I was called in the mid-seventies and that was because I went off into an unusual sort of academia. I did not go into a university but I went as the in-house lawyer to the Royal Institute of International Affairs at Chatham House. That was marvellous because it gave me an entitlement to get on with writing. Also, part of the job was to answer queries that members might have on international law issues, members being companies, individuals, broadcasters and give some lectures and to write for their two journals, World Today and International Affairs, so they were great years. It was only as those years rolled by that I started to be asked for opinions and advice on this and that and I thought I had better catch up with myself and be called.

RW: Was there a great hope for what the United Nations could achieve at that point? DR: I think so. There were always those who were just interested in it and there were those who were true believers and thinking it was the path to world government. I was never in that category but there was a lot intellectually to be excited about. RW: In 1959, you went to study law at Yale University after Cambridge. What made you choose to study in the States and at Yale? DR: I had come back to do a master’s degree at Cambridge. Of course, so much was going on in the States and in the world of International Law and I was advised to go and get a doctorate in the States and, of course, that sounded indeed something I would love to do. I particularly went to visit both Harvard and Yale to get a feel of the places and I had been lucky enough to win what was then called a Commonwealth Fund Fellowship and I could take it up wherever I wanted. Of course, Harvard is wonderful but it felt to me not so different from Cambridge and Yale felt something entirely different, very much focused, in the Law School there, under the leadership of Myres McDougal, who was the great protagonist, on what is law for? Not what are the rules but what is it all for and how, as lawyers, can we achieve that?

RW: You were all set to do the London School of Economics. Was that before Chatham House? DR: No, that was after. I left Chatham House when it shifted to a very EU focus. One should read nothing more into that except that it was not my special field and I could see that that was where it was going to focus, understandably, over the next period and an international lawyer, not an EU lawyer especially, would not have such a major future there. So, I left there and I taught for a year, curiously out of the International Relations Department at the LSE and then I had my first chair at the University of Kent at Canterbury and I was recently there, having been patron for their new Law School building, which is just so wonderful. Then, after three years, I was asked to come back to the chair, a London University chair, tenable at the LSE. RW: How was International Law developing at that time? Were students interested in International Law?

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DR: Oh, yes. They were interested. The first thing I did was to stop what I called the Noddy course in International Law that the International Relations students did. If they wanted to do International Law, which many of them did, then it had to be the proper course. They would do an out-of-department course and I believe it may even have been compulsory for International Relations students, if my memory serves me correctly but it became a much tougher course. Then, of course, new subjects were developing. I introduced a course that was new in the University – in fact, it was not being taught anywhere in the UK except for Dundee – on the International Law of natural resources. I was already advising on North Sea oil matters and doing a great deal of that, so we had one term on the general stuff and one North Sea oil term. Human Rights had started to become of great interest and then the other exciting thing was that, after years in the doldrums when relations between the former Soviet Union and the West improved suddenly, the United Nations got a new lease of life. It had been a very small master’s course I was teaching there, with probably about twelve and it suddenly exploded.

later to become, in the Saskatchewan Indians case, which was about whether the Treaty of Rights of those Indian Tribes could be respected when full sovereignty was sent back by the UK Parliament to the Federal Government of Canada. Those were interesting times too.

RW: Moving to the Bar, your career has had these amazing layers, about which it is almost difficult to do a chronological discussion, because there are so many inter-locking parts. Obviously, you chose Inner Temple over the three other Inns. What made you choose to be called at the Inner Temple? DR: I was advised that, if one was not going into chancery work, which I was quite clear I was not going to do, this was an extremely friendly and open Inn. Again, it is one of the things into which I happily slid and have never regretted for half a second. RW: Did you have to go to dining sessions at Inner Temple? Do you remember?

DR: Yes. I remember those well. I remember I enjoyed them. I know they have become much more informal now but I did enjoy them and I will share with you the secret that I am actually one session short and my husband always says, “Now they’re going to un-frock you!” RW: At this point, somewhat early in your career, did you have specific aspirations as to what you wanted to achieve long term? DR: I think the height of my aspirations was one day to be lucky enough to be a professor of International Law. That really seemed then the absolute pinnacle. RW: Did you complete pupillage? DR: Yes. I did my pupillage at what was then 4 Essex Court, before that set of chambers essentially moved to Lincoln’s Inn Fields, there now, Essex Court Chambers at 24 Lincoln’s Inn Fields. I was the first international lawyer there and again that has been a very happy relationship for me. RW: And were there, in your view, any particular challenges for women to get pupillages at that time? DR: Again, I never found so. I know some women lawyers talk about this difficult path and the hurdles they have had to overcome. I found almost on the contrary that selectors, whoever they may be, at chambers or universities or elsewhere, have really been very pleased to have a woman, if that woman looked comparable to other candidates. RW: Did you go to courts at that time, at all? DR: Intermittently, I would say is the answer. As you became more senior, then some very big cases came along and involved a lot of court time, so for example the great Kuwait Airways case and other major cases of that sort, the Tin Council cases, where I was the international lawyer for the Tin Council. So, it is hard to give a general answer but I would say that, as my practice became heavier, there was more and more time in the international courts than in the English courts and then including occasional appearances in unfamiliar courts, so I was with Lord Saville, as he was 118

RW: Around this time, 1984 to 1985, you served on the UN Human Rights Committee. That is the body that monitors the implementation of the International Covenant on Civil and Political Rights. This is obviously a time of enormous political change. How was the experience at the United Nations? DR: When I started doing it, there really was a difference between the academic and being involved and you read page after page about human misery of the most vile sort and I could not imagine how I could stay involved in this work. I found it from the beginning very, very depressing but gradually you stop feeling sorry for yourself and start taking an interest in the legal and constitutional issues and in the people concerned and then I found it very, very rewarding and I thoroughly enjoyed those sessions and the colleagues with whom I worked. RW: So, a lot of the work would involve torture and the state of prisons in the ICPR. Did you do many country visits? DR: No. The people who did the country visits were the special reporters under the Commission on Human Rights, a somewhat more politicised and different body. The way it worked on the Committee on Human Rights, which was generally regarded as non-political and we owe thanks to those who started out on that track and kept on that track, so all of us were regarded as experts, not spokesmen for any particular country or points of view and their countries were called in alphabetically in rota, so you might have Luxemburg one day and Libya the next and everyone would come simply not because it was the bad guys being called in. It was just one’s turn to come and answer all the points that were being put by the Committee. Most of us prepared rather carefully. I must say, Amnesty International in particular were very helpful about pre-session briefings. RW: It sounds a remarkable amount of work. Did you feel you were making, as a body, a positive difference with the work? DR: Very hard to say. I think the fact that countries had to come to us focused the mind there on particular issues but not always and the United Kingdom, whose human rights record in comparison with many in the world is of course exceptionally good, nonetheless I think has often thought these types of things are for others, how we can improve others. I know through the years we were concerned about the position of minors in prison and the intolerable suicide rate and that really has not improved through those long years. RW: Obviously International Law at that time was still quite a new field, still quite specialised. Was there a community at Inner Temple of like-minded lawyers? DR: I do not think there was a community of international lawyers. But there were certainly Benchers here who seemed to have an idea what my work had entailed and to be incredibly welcoming. I was thrilled to be asked to be a Bencher and apprehensive at the same time, because I mostly knew only the Commercial Court and the International Law questions that came up there and I had not had years of knocking around every conceivable court here and I could have felt left out on a limb but I received the warmest of welcomes and really, I am just so grateful for that. Master (Peter) Taylor and Master Chadwick, who was the Treasurer, really in a way took me under their wing. Master Chadwick would always watch out for me and make sure I was well seated and perhaps by him. Robert Goff was also incredibly kind to me. Of course, he came to have an interest himself in the international side of things. Master Butler-Sloss – well we have become great friends over the years. Bernard Rix, David Keane, they really all helped me very much. RW: How often would you come to Inner Temple?

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DR: Whenever I was in England, I came and even later, when I went over to the International Court, that pattern has continued. I hate to let too long go by without coming here, earlier, of course, to be on these committees, even if I was showing my face intermittently and more recently just to enjoy the social side and see friends. RW: Did you attend specific events at Inner Temple, or do you just meet for drinks or coffee? DR: I do particularly like the various dinners, both the dinners where Benchers may invite their own spouses or partners once or twice a year, so we have come to know the spouses and partners of others and everyone’s given my husband a wonderful welcome too. There are of course Grand Days, lovely occasions and then Guest Night, where you have the chance to entertain and there are always such incredibly interesting people to meet. I can truly say that I have never been to a Benchers’ dinner of whatever sort and not had a thoroughly good evening. RW: Because of the company? DR: Because of the company. I have to say I enjoy the wines too and I always thought it would be marvellous to be on the Wine Committee. That is not something that ever came my way. RW: Not too late, is it? Have you met any staff members at Inner Temple? DR: Yes. Many of them, of course, I know by sight. One cannot help but also know by name, William. William was here when I arrived and continues, I hope, forever and he obviously is a fantastic member of the Inn’s staff. RW: To move, then, to the International Court of Justice, you were a judge at the ICJ from 1995 to 2009. Obviously, the International Court of Justice, for those who are not as familiar with the international arena, is the principal judicial organ of the United Nations. You were the first woman to be appointed a judge of the ICJ. I have to say, you were a role model for me, when I was studying in the United States and studying International Law at that point. Did you regard yourself as a role model for other women or not? DR: Not, is the honest answer. I know for some people, like Brenda Hale for example, that role as a leading woman in the field has been extremely important to her. I have just found myself in the very fortunate position of having extraordinarily interesting work assigned to me and, if as the first woman that gave encouragement to others, I am very happy about that but it was never a focus. RW: Is there a particular reason why? DR: I think it is because I have thought of myself more as a lawyer than a woman. I am of course both. RW: How did you manage to negotiate the politics of the United Nations? DR: I learnt way back, when I went for my internship, that there are different perspectives one is seeing that one has not seen before, seeing how things look from somebody else’s point of view and when I was teaching at the LSE I would say to students “Say or write in your papers anything you want but I don’t want to hear your government’s opinion. You always have to think how does it look to my country but how does it also look to the other country and to the other individuals? And I think that is very important for the young lawyers to be instructed in early. So, that certainly helped at the UN. RW: In your role at President of the ICJ, how did you approach that position and the interactions with the other judges? What was your leadership style, if there was one?

The Inner Temple Yearbook 2017–2018

DR: I remember saying to them, after they did me the honour of electing me, “There is no point being a President just for the honour of it, though that is very great. One has to be President in order to achieve something and what I, with your help, will want to do is to keep up the quality of our work, which has never been in any doubt, I think. Individual cases or opinions can be argued about but the quality of the work of the International Court has been appreciated through the years. I want to improve relations with the other new courts and tribunals coming through and the third thing I want us to achieve together is really to make the workings of the Court more efficient. At the end of the Cold War and with all the new states that have come on stream, who initially were hesitant about International Law and now realise that it serves their world too, there had been a huge increase in reference to the Court and we have to move into modern times, change our ways of work, in order to cope with that through-put.” And so those were the tasks I set myself. RW: So, you retired in 2009, as we have said and you have been busy but what takes up your time currently now? DR: Three things since retirement. First, being President of the British Institute of International Comparative Law (to the end of 2016), which I did enjoy and I very much appreciated the people with whom I worked; Robert McCorquodale, who has the executive leadership of that body and Frank Burnham, chairman of the trustees. They have done a great job and the three of us, I think, enjoyed working together. The second thing was that I was asked to be legal advisor to the Chilcot Committee and that was, in the first years, very, very time-consuming but extremely interesting and, as you know, it was an enquiry that did not have its own standing counsel, which would have meant everyone arriving in front of it would have arrived with his counsel and the atmosphere would have been hostile, which many people wanted to be the case. They wanted everyone grilled mercilessly, rather than the truth arrived at through other ways but instead I was advising the committee and trying to help them to appreciate what were the real international law issues, which were not always the ones that seemed to be at the front of people’s attention but I think I may safely say their thirteen-volume report has been very well received and that has been very time-consuming but rewarding for me and worthwhile. The third thing is I was asked by Sir Robert Jennings, the previous British judge at the Court and Sir Arthur Watts, the last-but-one legal advisor at the Foreign and Commonwealth Office, to prepare a brand-new Oppenheim. For those who do not know what Oppenheim is, Oppenheim is maybe the leading English-language practitioner book in International Law. It went to Oxford University Press in January and will be published in 2 volumes in October 2017. RW: Just to return finally to the Inner Temple, obviously the Bar and the legal world are changing quite a bit but what role do you see for Inner Temple into the future for young barristers? DR: I have been tremendously impressed over the years with how forward-looking the Inner Temple is. It is not a rigid body. It is willing to consider doing things differently. It is so friendly to the student body and welcoming to the younger members of the Bar. So many of the things that, when I became a Bencher, were Bencher-only things are now open again, sometimes even to students and certainly to members of the Bar. They are very inclusive. Then, of course, they have the various committees, some of which I used to attend, on how to deal with particular problems, the problems are more coming through to qualify than for whom we are able to find places in pupillages but there is a tremendous support here and I think any young person who joins Inner Temple will not go far wrong. RW: Thank you for your time, Master Higgins. Dame Rosalyn Higgins DBE JSD FBA QC and Rebecca Wright 119

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ORAL HISTORY PROJECT Excerpts from Master Christie’s interview with long-standing member of staff, William Gallagher

IC: I’m with William Gallagher, member of staff at the Inner Temple, thank you very much for agreeing to take part in the Inner Temple oral history project. Can I just get you to start by giving your name and your job title? WG: My name is William John Gallagher. My job title is car park supervisor, silver man, wine steward…

IC: Thank you, William. The first question I have for you is based on the fact that you were here when I was called to the Bar back in 1989, you’re still here today and you look exactly the same now as you did then. What is the secret of your eternal youth? WG: I think it’s all the Benchers of the Inn keeping me young.

IC: And you told me just before we started that there’s nothing that you wouldn’t do for the Inn, and taking part in this interview, you said, was one of those things that has taken you outside of your comfort zone.

IC: So just before we discover what happened next, you were working with your mother, you said, in a catering company… WG: That’s right. I went down to the Job Centre and they said, “How about a catering job?” and I said “Yup, fine.” So, I came to the Inner Temple, had the interview with a man called Fred Law, and he took me on. My dad died in 1985, and mother went downhill, in the September that would have been. So, in the November I said to the guv’nor, “Would it be OK if I brought mother in as a casual waitress, just for a few hours here and there? Just to get her out of the house?” He agreed to that, and it was term-time at the time, and the next night he said, “Bring your mother in.” So, I brought her in, and the next day she was taken on as a part-time waitress. And not only waitress, but Bench waitress.

IC: You would have been 18 when you first started?

WG: That’s right.

WG: That’s right. Yes.

IC: Let’s start right at the beginning, then. How did

IC: Do you remember your very first day then, on duty?

you come to be working for the Inner Temple?

WG: I do indeed, and –

WG: Well, first of all, I did not work for the Inner Temple. I worked for Catering Company at the Inner Temple. And I started in 1983, and worked until 1988 for them, then the catering company changed, and three members of staff only was asked to stay. One of them was my mother, Stella Gallagher, Mrs Hodgson who was lookin’ after the wines, and myself. The two ladies agreed, but I said no, and left the Inn.

you would not believe it.

William Gallagher with Master HRH The Duke of Edinburgh and Master May

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IC: Try me. What happened?

Archives

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TIMELINE FROM THE ARCHIVES

100 YEARS AGO 1917 Sir George Cave and the Representation of the People Act On 22 May 1917, the Home Secretary, Sir George Cave, moved the Representation of the People Bill. Cave, who was admitted to the Inner Temple in 1876 and was elected a Bencher in 1912, had been a chancery barrister before becoming Conservative MP for Kingston-upon-Thames in 1906. He became Solicitor General in 1915 and Home Secretary the following year. In 1917, only 58 per cent of the adult male population was eligible to vote, largely because of the property qualifications but the War had created the feeling that this distinction was no longer appropriate. As Cave put it in his opening speech, “The spirit manifested by all classes of our countrymen has brought us nearer together, has opened men’s eyes and removed misunderstanding on all sides. It has made it … impossible that ever again … there should be a revival of the old class feeling which was responsible for so much and, among other things, for the exclusion for a period of so many of our population from the class of electors.” The Bill enfranchised all men over 21 and redefined the residency requirement so as to include servicemen recently returned. The Bill’s other major change was to enfranchise women of 30 years old, who met a (very low) property qualification, or were married to a husband who met it. Women were also enfranchised for university constituencies, even if their university did not grant women degrees.

George Cave, Viscount Cave, 1918 National Portrait Gallery, London

These changes doubled the electorate but the Act, which passed in 1918, made other changes too. Elections were formerly staggered, with votes held at different dates in different constituencies. Now they were to be held on one day throughout the whole country. The Act redistributed seats to take account of the new electorate. As originally drafted, the Act would also have introduced the alternative vote system in single

member constituencies but that was watered down in committee to apply only to university constituencies. Cave was appointed a Law Lord in November 1918 and created a viscount (though he did not resign as Home Secretary until the following year). In 1922, Bonar Law nominated him Lord Chancellor and he remained in office until 1928, dying shortly after his resignation.

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200 YEARS AGO

300 YEARS AGO

1817

1717

Sir Edward East and the Hindoo College

The Career of Major Stede Bonnet, Pirate

Edward Hyde East was born in Jamaica on 9 September 1764. He was educated at Harrow and thereafter at Magdalen College, Oxford. On 30 October 1781, he was admitted to the Inner Temple and was called to the Bar on 10 November 1786. In 1813, he was appointed Chief Justice of Fort William (Calcutta). He would remain in office for ten years, during which time he earned the respect of Bengalis for his impartiality.

Nicholas Trott was born in London in 1663 to a family that had several colonial connections. He was educated at the Merchant Taylors’ School and the Inner Temple and became Attorney General of Bermuda in 1693. In 1699, he was appointed Attorney General of Carolina and became Chief Justice in 1703. Though a controversial politician, his abilities as a judge were widely respected and his pronouncements in the Bonnet trial became precedents in other piracy trials.

A group of Calcutta residents, led by Scottish-born watchmaker David Hare and including several wealthy reformminded Hindus, had formed the idea of founding a new educational institute in the city. In May 1816, this group met with Sir Edward East at his house in Calcutta, where they defined the purpose of the college as “giving a liberal education to the children of the members of the Hindoo Community”. A subscription rapidly raised over a million rupees and the Hindoo (sic) College opened on 20 January 1817 to its first 20 scholars. The college’s membership would rise to 69 in just three months. Its governing body consisted entirely of Indians but its founding Principal was Sir Edward East.

Stede Bonnet was born in Barbados in 1688. He inherited 400 acres from his father and held the rank of major in the militia but, deranged by the death of his first son and his wife’s nagging, he abandoned her (and their three surviving children) for a life of piracy. In 1717, he built the Revenge, engaged a crew and slipped off under cover of darkness. He proved rather inept at his chosen profession and when he joined forces with Edward Teach, better known as

Blackbeard, his own crew voted to replace him with one of Blackbeard’s men but Teach double-crossed them, abandoning the Revenge and many of his own crew off North Carolina in June 1718. They were rescued by Bonnet, who had gone to North Carolina to accept a Royal Pardon. Bonnet then decided to sail to Saint Thomas in the Danish West Indies, hoping for letters of marque to attack Spanish ships but first he needed to refit in the mouth of the Cape Fear River. En route they captured 13 merchant ships but the Governor of South Carolina heard of their activities and sent Colonel of Militia William Rhett in pursuit. After a two-day battle, the pirates were captured. Their trial began on 28 October, with Nicholas Trott presiding. Bonnet was being held in the Provost Marshal’s house but he escaped with several others, only to be recaptured on O’Sullivan’s Island by Rhett. Bonnet’s dignified bearing before Trott earned public sympathy but his defence was unconvincing and he was sentenced to death. He was hanged on 10 December 1718.

The college had both junior and senior sections. The curriculum consisted of English, Bengali, Sanskrit, history, geography, mathematics, the sciences and Indian and European literature. The college initially met at a rented house in Garanhata but in 1825 it moved into custom built accommodation in what is now College Square. In 1854, the Hindoo College was split in two, with the junior section becoming the Hindu School and the senior section becoming Presidency College. The Hindu School still exists under that name but Presidency College was given university status in 2010 and the position of Principal was replaced by that of Vice-Chancellor. When Sir Edward East returned to Britain in 1823, a public subscription paid for a statue of him that still stands in the Supreme Court building in Calcutta. He was made a baronet and served briefly as an MP. In 1833, he was appointed to the Judicial Committee of the Privy Council, with special responsibility to hear Indian appeals. He died in 1847.

Library of Congress

Timeline from the Archives

Major Stede Bonnet, 1725

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400 YEARS AGO 1617 “A Slovenly Cook” In November 1616, Sir Edward Coke was dismissed as Lord Chief Justice but he was appointed a Lord of the Treasury, so was not removed from public life entirely. In the meantime he resumed residence in the Inner Temple. Nathaniel Brent (an academic attached to the English Ambassador to The Hague) wrote in November 1617 that Sir Edward’s food was provided for him by “Goodman Gibbes, a slovenly cook”. This must be the same as Anthony Gibbs, who appears in the Acts of Parliament for 1618 as a cook in Ram Alley and who used a yard in Fuller’s Rents belonging to the Inner Temple.

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The properties in Fuller’s Rents were a constant bother to the Inn, since their tenants had a habit of making new doors to allow themselves greater communication with the Inn. This also enabled ordinary people (including beggars and those infected with disease) to get into the Inn as well. There are numerous references in the Bench Table Orders for these doors to be mured up. Gibbs in particular aggravated the Benchers by failing to keep clean a gutter running from the Mitre Inn into his yard. In a Parliament held on 8 February 1618, the Bench ordered that Gibbs be evicted from the house and yard in Fuller’s Rents and that the communicating door which he had made (probably to allow him easier access to Sir Edward Coke’s chambers)

be mured up. Gibbs petitioned against his eviction. At a Parliament held on 16 April 1618, a committee of Benchers was appointed to consider his petition and to inspect the gutter, to make sure that it was kept clean. There are no further references to Gibbs in the Inner Temple records but it appears that his petition was successful. Philip Massinger’s 1625 play A New Way to Pay Old Debts contains the following lines: “ This term-driver Marrall – this snip of an attorney, The knave thinks still he’s at the Cook’s shop in Ram Alley, Where the clerks divide and the elder is to choose: and feeds so slovenly!” Act II, Scene II James Lloyd Assistant Archivist

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The Inner Temple Yearbook 2017–2018

Hilton Young

HILTON YOUNG As part of our World War I series, Bijan Omrani explores the varied life of Hilton Young both on the battlefield and in civilian life.

2017 marks the centenary of some of the most difficult battles of the First World War. The thought of 1917 immediately recalls names such as Arras, Passchendaele and Cambrai, and the many members of the Inner Temple who fought amidst the mud and stasis of the Western Front at its most dismal.

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However, it should not be forgotten that in 1917 and throughout the whole of the First World War, members of the Inner Temple served on an extraordinary variety of fronts and in an astonishing number of ways. This article commemorates the wartime story of one Inner Templar, Hilton Young, later the first Baron Kennet, whose service during the war was as widely varied as his civilian accomplishments: barrister, banker, journalist, poet, parliamentarian, and bohemian. Hilton Young was born in 1879. His family had already won some distinction in national life. His father was a Classical scholar and charity commissioner, and he was descended from the 18th century Admiral Sir George Young, whose achievements included planning a colony in New South Wales, excavating mummies in West Africa, and testifying to the House of Commons on the evils of slavery. From an early age, Hilton Young showed signs of his polymathic character. At the age of nine, he published a picaresque novel, The Count, on a family printing press. He later went on to Eton where he joined the Army Class, the only way available to him to pursue a developing interest in science. He was nonetheless not deficient in the military virtues, and became captain of the class. He later studied chemistry at University College London and Trinity Cambridge, where he also became President of the Union. From his most tender years Young had a gift for joining the most sparkling social circles. He first made the acquaintance of another Inner Templar, Clement Attlee, when just a teenager. A fellow pupil

“ Young comforted himself with the idea that deciphering telegrams on a depot ship was not too bloodthirsty an occupation for a pacifist.”

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Edward Hilton Young, 1935 National Portrait Gallery, London

at Northaw Place prep school, Young magnanimously offered the nine-year-old Prime Minister to-be jam from his own pot on his first day at the school. In London, he would play in Kensington Gardens with the children of his near neighbour, Sir Leslie Stephen. Stephen’s daughter, Virginia, turned down a proposal of marriage from Young when they had both come of age, and later married Leonard Woolf. At Cambridge, he became close friends with the historian G M Trevelyan and the novelist E M Forster, and through them joined the nascent Bloomsbury Group. After the War, he would make a happy marriage with the sculptor Kathleen Scott, the widow of Captain Scott of the Antarctic. Young was called to the Bar by the Inner Temple in 1904. However, after taking a small number of briefs he is reported to have had a form of nervous breakdown, and he withdrew from practice. He spent some time in further study of international law at the University of Freiburg, after which he returned to London and settled down in a truer vocation as a writer and journalist. He was appointed assistant editor of the Economist in 1908, and City editor of The Morning Post in 1910; he was also London financial correspondent for the New York Times. He became an active member of the Liberal party and helped to organise trades unions in London. In 1912, he wrote a legal textbook entitled Foreign Companies and Other Corporations. As with many others, the War caught Young by surprise. He had been travelling on the Adriatic coast in June 1914, “contemplating askance”, as he later wrote in his war memoires, the end of his holidays and the “prospect of another eleven

Hilton Young

The Inner Temple Yearbook 2017–2018

Shëngjin Harbour, 1915

Young spoke out against the declaration of War. He felt, at the time, that it was in “defiance of common sense and humanity,” and that people would “suffer and die because diplomats had quarrelled over their game.” However, by the end of August 1914 he had signed up. The difficulties suffered by the British Expeditionary Force weighed on his mind, as did the immediate devastation wrought on Belgium. Regardless of the merits of having entered the contest, he felt that victory now mattered more than defeat. Matters came to a head as he was dining with a friend on 27 August. The phone rang at the end of dinner with a request for people to help with deciphering telegrams on HMS Cyclops, a depot ship at Scapa Flow. Young’s dining companion offered to assist, and Young did as well. The next morning, he found himself, somewhat to his surprise, on a train for Scotland, with a commission for the Royal Naval Voluntary Reserve in his pocket.

“ Young comforted himself with the idea that deciphering telegrams on a depot ship was not too bloodthirsty an occupation for a pacifist.”

“ Young describes the pitiful sight of school children mixed up with teenage army recruits in threadbare clothing, collapsing famished on the roadside, beyond any help, huddling up together to die.” However, he was soon transferred to more active service, and following training was put in charge of guns on board the flagship HMS Iron Duke. It was difficult for Young to get over the shock of his professional colleagues’ desire to go into battle, and their professed indifference to wounds or sudden death. He used to fret that his cabin was at the exact spot a torpedo would hit, and wish that he were in the trenches. However, before long, Young had fallen into the naval routine. His ship patrolled the North Sea, dealing in particular with the threat of German submarines. Young recalls prolonged periods “sitting crouched… slowly rubbing my nose backwards and forwards, hour after hour, along the edge of the hard steel [of the gun turret] and peering into the dark” broken by moments of frantic and chaotic action, in particular the Battle of Dogger Bank in January 1915, where the British Grand Fleet intercepted a German raiding squadron and sunk a German armoured cruiser. His time at sea was marked by long periods of tedium, but he was not idle. He began to write war poetry, and from this period come moving verses commemorating the dead of Neuve Chapelle, replete with naval imagery. “There is no quickening and no glory here,” he writes of spring at sea, but he finds communion with the dead and transcendence of death in contemplation of the North Sea stars “where the heaven is set

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months work in the dreary City.” He had just loaned 50 francs to a German student who had been robbed when the news of Archduke Franz Ferdinand’s assassination was reported to him. The news meant little to Young but he was disgusted by the student’s unrestrained joy on hearing it. The student explained that the Archduke wanted to put the Slovenes on a par with the Teutons in the Austro-Hungarian Empire, and was thus well out of the way. The last letter Young received from the continent before the posts were broken off by the war was a repayment of the 50 francs by the student.

The Inner Temple Yearbook 2017–2018

Hilton Young

with signs of them, / And sea-winds sing to us their requiem.” At the same time, he wrote The System of National Finance, which remained the standard reference work on governmental budgetary processes until the 1950s. He was also elected unopposed as a Liberal MP for Norwich.

sailing on HMS Vindictive, Young appeared to have reconciled himself to the likelihood of death. He wrote a poem on board, At The Gate: “It is all over; all my travelling / in changing, curious time; and I / of every vital thing that life can bring / have only left, to die.” Young was lucky not to be killed in the action, but his right arm was blown off. He recalls being knocked by a blast down some stairs into the middle of a group of surprised marines. “Why, whatever’s the matter with you?” asked one, before poking him with his foot.

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In August 1915, Young was transferred to the British Naval Mission to Serbia. The purpose of this unit was to prevent Austro-Hungarian vessels operating on the Danube so that they could not reach Belgrade or transport supplies to Turkey by the Black Sea. It was during this mission that Young encountered some of the worst horrors of the war. Young was stationed in the town of Smederevo in October 1915 when it came under heavy artillery bombardment by German forces as part of the German-Austrian-Bulgarian invasion of Serbia. It was a busy market day, and Young was buying cigarettes when shells began to fall without warning. He was a witness not only to the initial carnage of the attack, which lasted several days, but accompanied the retreat of the Serbian army, together with many refugees, to the Adriatic coastal town of Shëngjin (San Giovanni di Medua). Winter was falling, food was short, and Young describes the pitiful sight of school children mixed up with teenage army recruits in threadbare clothing, collapsing famished on the roadside, beyond any help, huddling up together to die. When camped on the exposed slopes of Shëngjin with the other refugees (over 150,000) he had to deal with aerial bombardment, as well as the vapourings of a French General sent to deal with the situation, who demanded to know where he could find a hotel room to change into full dress uniform before he proceeded on to make a formal entry into Scutari. Young’s party commented that he knew of no hotel suitable to the purpose, but that “there was a khan half-way at Babaloushi which had a little bit of roof left.” Young was evacuated in January 1916 and spent the next year again at sea. He passed a strange existence, oscillating between naval warfare and agreeable afternoons at the Harwich High

Young returned to active service in July 1918. He volunteered for another difficult mission. Following the withdrawal of Russia from the War, the allies decided to re-open a second front in the German rear by landing troops at Archangel. Young was put in charge of a train with mounted artillery, and detailed to fight against the Bolsheviks through the Russian forest to make a bridgehead for Allied forces. Young christened his train ’Miles’ after a friend, Miles Day, a poet and airman, who had been killed in Flanders. Young spent months chasing a similar Bolshevik artillery train along the line, facing the problem of how to move the train in silence to take his opponent by surprise. He managed to fight a considerable distance along the line before the Armistice in November 1918. Following his return, Young was highly active in politics until the mid-1930s. He served as chief whip and Minister of Health. In domestic politics, he was responsible for housing, overseeing the demolition of slums and the building of new houses. Abroad, he was a delegate to the League of Nations, and oversaw the establishment of the Iraqi currency in the 1920s. He learned to write a beautiful half-unical script with his left hand, and his signature graced the early issues of Iraqi banknotes. He also remained active in the arts and journalism. He wrote his war memoires, By Sea and Land, in 1920, and published a volume of war verse, A Muse at Sea. His correspondence with E M Forster helped him to overcome a severe writers’ block, which allowed him to complete A Passage to India. He also established an arts

“ Young’s career both during war and peacetime merits our attention not just for its sheer range of achievements, but also for the way his attitude towards the war changed.” Street Tennis club – these occupations often separated by just a few hours. In 1917, however, he was posted to the westernmost extremity of the Western Front at Nieuport Bains, where he formed part of a detachment overseeing a large naval gun entrenched on land. He lived in extreme discomfort, becoming used to vicious artillery duels with other big German guns, gas attacks, and bombs dropped from the air. He had to risk his life repairing the concrete structure of the emplacement covered only by the darkness of night or smokescreens, and sometimes he had to recover the bodies of the dead – something which at the time he records made curiously little impression on him. Indeed, he became somewhat blasé under fire. His detachment found a spot outside where the British, but not the Germans, could see them on misty days. Here, in quiet moments, they would go out to semaphore to their colleagues “O.P. O.P. O.P.—C-o-m-e—a-n-d —h-a-v-e—a—d-r-i-n-k” and pass the time in animated debate. One of the favourite topics of discussion was the sculpture of David Epstein, and Young’s preferred reading when under bombardment was Spinoza, which perhaps enhanced the mystical tendencies in his poetry. In 1918, having finished his posting at Nieuport Bains, Young volunteered for one of the most daring exploits of the war – the Zeebrugge Raid. The object was to sail a number of ships up to the heavily fortified enemy port and sink them to prevent German vessels from sailing out. Before the raid in April 1918,

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page in the Financial News, which was continued by the Financial Times when they merged in 1946. Young retired from politics in 1935 and was raised to the peerage, but he continued to chair many businesses and organisations from the Royal Statistical Society to the Poetry Society. He died in 1960. Young’s career both during war and peacetime merits our attention not just for its sheer range of achievements, but also for the way his attitude towards the war changed. He is an example of one who started as a pacifist, but despite his sensitivity and his own experience of danger, the loss of friends, and his own physical disfigurement, he came to see the war as a valid necessity in the circumstances, and a cost that should be accepted in the political reality of the time. He reveals his own questionings and intellectual journey in his war memoires, and his conclusion that death was overcome by living life with the fullest intensity, something he felt that he experienced on active service, and perhaps also found in his polymathic range of experience. As such, his memoires and verse make a striking contrast to that of Siegfried Sassoon and Wilfred Owen – writing that, although neglected, ought to be more widely read to understand that there were many more reactions to the First World War than we usually appreciate today. Bijan Omrani Bijan Omrani is a historian and member of Lincoln’s Inn. His latest book is Caesar’s Footprints: Journeys to Roman Gaul, published this year by Head of Zeus.

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The Inner Temple Yearbook 2017â&#x20AC;&#x201C;2018

Weddings and Baptisms

WEDDINGS AND BAPTISMS ndrew Bushell A and Mary Robey, married 8 July

Arleen Ouzounian and Christopher Hanges, married 1 July

ark Veity and Layla M Dean, married 22 July

Rebecca Clutton and Christopher James, married 4 June 2016 150

Master Paul Bleasdale and Ruth Dooley, married 14 May

Weddings and Baptisms

The Inner Temple Yearbook 2017â&#x20AC;&#x201C;2018

ophie Olivia Constance S McKenzie Callanan, baptised 16 July

Molly Tidbury and Nico Wills, married 6th January 2017

Sarah Martin and Samuel Steel, married 10 June 2017

William Charlton and Emily Eaton, married 3 December 2016 151

The Inner Temple Yearbook 2017–2018

Bar Liaison Committee

BAR LIAISON COMMITTEE

Simon Baker (Chair) Car Park; Executive Committee; Project Pegasus Steering Group

Adrian Eissa

Zachary Bredemear Education & Training Committee; Silver

Natalie Foster

Saoirse Cowley Employed Bar

Nicholas Griffin QC

Advocacy Training Committee; Pegasus Scholarship Trust

Student Societies Sub-Committee; Temple Women’s Forum

COIC Future of Regulation Working Group; Mentoring

Sarah Martin

Simon Murray

Timothy Petts (Vice-Chair)

Marshall Hall Trust; Outreach Committee; Scholarships Committee

Library Committee; House; Cellar

Thea Wilson

Dr Anton van Dellen

Drama; Scholarships Committee; Student Societies Sub-Committee

Archives; Library Committee; Staff Remuneration

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Nicholas Craig Estates Committee; Moots

Saul Herman Qualifying Sessions Sub-Committee; Student Societies Sub-Committee

Jason Sugarman

Archives; Estates Committee; Executive Committee

Scholarships Committee; Students Debating Society; South Eastern Circuit

Gordon Nardell QC

Tim Penny QC

Inn’s Representative on the Bar Council

Garden; Outreach Committee

Bar Liaison Committee

Can Yeginsu

James Kitching

The Inner Temple Yearbook 2017â&#x20AC;&#x201C;2018

James Batten

International Committee; Library Committee; Qualifying Sessions Sub-Committee

Employed Bar (BACFI)

Junior Bar Representative; Education & Training Committee; Paintings

David Elias Wales and Chester

Alex Foster

Simon Gurney

Jason Hadden MBE

Laura John

North Eastern Circuit

Northern Circuit

Midland Circuit

European Circuit

Jason Sugarman

Richard Wheeler

Sonia Nolten

Christopher Bond

South Eastern Circuit

Western Circuit

Executive Committee; Finance Sub-Committee; Investment Sub-Committee

Executive Committee; Finance Sub-Committee; Estates Committee (ex-officio)

KEY

Elected Co-opted

Alex Wright

Patrick Maddams FRIBA

Yearbook Editor

Sub-Treasurer

Henrietta Amodio Head of Treasury Office & Secretary to the BLC

Circuit Representatives Ex-Officio

The Inner Temple Yearbook 2017â&#x20AC;&#x201C;2018

New Masters of the Bench

NEW MASTERS OF THE BENCH FOR 2017

David Aaronberg QC

Lloyd Williams QC

Penelope Reed QC

Ian Winter QC

BARRISTER GOVERNING BENCHER

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Adrian Keeling QC

Andrew Warnock QC

Tom Mitcheson QC

BARRISTER GOVERNING BENCHER

His Honour Judge Farrell QC

Harini Iyengar QC

Minka Braun

BARRISTER GOVERNING BENCHER

JUDICIAL GOVERNING BENCHER

His Honour Judge Lucraft QC

Deputy Senior District Judge Ikram

Her Honour Judge Evans-Gordon

JUDICIAL GOVERNING BENCHER

Masters Of Bench

The Inner Temple Yearbook 2017–2018

MASTERS OF BENCH Treasurer 2017

John Beveridge Esq QC (U)

Mrs Margaret Bickford-Smith QC (B)

David Pittaway Esq QC (B)

His Honour Humphrey LLoyd QC (U)

The Rt Hon Sir Jeremy Sullivan (U)

Royal Masters of the Bench

Sir Edward Cazalet (S)

The Rt Hon the Lord Wilson of Culworth (U)

HRH The Prince Philip, Duke of Edinburgh KG KT OM GBE (R)

The Rt Hon Sir Mathew Thorpe (S)

Giles Wingate-Saul Esq QC (S)

William Crowther Esq QC (U)

Gerard Elias Esq QC (S)

HRH The Princess Royal (R)

Roger Henderson Esq QC (O)

The Rt Hon Lord Justice Beatson FBA (J)

Reader 2017

John Deby Esq QC (O)

Anthony Hacking Esq QC (S)

The Rt Hon Lady Justice Gloster DBE (J)

His Honour Anthony Thompson QC (S)

Sir Hugh Bennett (O)

Masters of the Bench Ex-Treasurers

Dermod O’Brien Esq QC (S)

The Rt Hon Sir Stephen Brown GBE (S)

The Rt Hon the Lord Armstrong of Ilminster GCB CVO (H)

The Rt Hon the Baroness Butler-Sloss GBE (S)

Ian Hunter Esq QC (B)

Bruce Mauleverer Esq QC (S)

The Rt Hon the Lord Lloyd of Berwick DL (S)

The Rt Hon Sir Henry Brook (S)

His Honour Neil Butter CBE QC (S)

Stanley Brodie Esq QC (S)

Sir Peter North CBE DCL FBA QC (H)

His Honour Duncan Matheson QC (O)

Richard Southwell Esq QC (S)

Sir Martin Jacomb (H)

Her Honour Christian Bevington (O)

The Rt Hon Sir Konrad Schiemann (O)

Patrick Ground Esq QC (B)

Miss Caroline Willbourne (B)

The Rt Hon Sir John Chadwick (O)

David Vaughan Esq CBE QC (B)

Her Honour Judge Hughes QC (J)

The Rt Hon Sir Bernard Rix (O)

Professor Sir John Baker QC LLD FBA (H)

Michael Sayers Esq QC (U)

The Rt Hon Sir David Keene (O)

The Rt Hon the Lord Hutton (H)

Sir Richard Henriques (O)

Stephen Williamson Esq QC (S)

His Honour James Wadsworth QC (U)

Martin Bowley Esq QC (O)

The Rt Hon Sir Anthony May (O)

Jules Sher Esq QC (U)

The Honourable Justice Stephen Breyer (H)

Vivian Robinson Esq QC (O)

Eldred Tabachnik Esq QC (U)

The Honourable Justice Anthony Kennedy (H)

The Rt Hon Sir John Laws (O)

Sir Michael Tugendhat (J)

Tom Shields Esq QC (O)

The Rt Hon Lady Justice Hallett DBE (J)

John Crowley Esq QC (S)

Sir Mark Havelock-Allan Bt QC (J)

Simon Thorley Esq QC (O)

The Rt Hon Sir Stephen Sedley (O)

His Honour Simon Brown QC (O)

The Rt Hon Sir Stephen Tomlinson (O)

Dame Rosalyn Higgins DBE JSD FBA QC (S)

Jonathan Acton Davis Esq QC (B)

The Rt Hon Sir Martin Moore-Bick (O)

His Honour David Elfer QC (S)

Anthony Temple Esq QC (B)

His Honour Judge Cryan (Hon) LLD (J)

Raymond Potter Esq CB (S)

Richard Rampton Esq QC (S)

Masters of the Bench

Nigel Hamilton Esq QC (U)

Sir Robert Owen (S)

David Widdicombe Esq QC (U)

Sir Sydney Lipworth QC (H)

Gary Flather Esq OBE QC (S)

John Willmer Esq QC (S)

The Rt Hon the Lord Sumption OBE (J)

Christopher Purchas Esq QC (B)

The Rt Hon The Lord Woolf CH FBA (S)

Leonard Woodley Esq QC (U)

Miss Pamela Scriven QC (B)

The Rt Hon Sir Brian Neill (S)

Nicholas Wood Esq (O)

Nicholas Padfield Esq QC (B)

The Rt Hon Sir Andrew Leggatt (S)

The Hon Mrs Justice Slade DBE (J)

The Rt Hon Sir Patrick Elias (O)

His Honour George Dobry CBE QC (U)

Henry Knorpel Esq CB QC (S)

Anthony Glass Esq QC (S)

William Glover Esq QC (U)

The Rt Rev and Rt Hon Lord Carey of Clifton (H)

Michael Shorrock Esq QC (O)

The Rt Hon Sir Roy Beldam (S)

Judge Martin Feldman (H)

Sir Gordon Langley (O)

Sir Oliver Popplewell (O)

Sir Ivan Lawrence QC (B)

Sir Christopher Pitchers (S)

Sir William Macpherson of Cluny TD (U)

James Goudie Esq QC (S)

Nigel Pascoe Esq QC (S)

The Hon Sir Charles Morrison QC (U)

Christopher Lockhart-Mummery Esq QC (B)

Her Honour Judge Korner CMG QC (J)

The Rt Hon the Lord Mackay of Clashfern KT (H)

Richard Salter Esq QC (B)

Oliver Sells Esq QC (B)

Professor Francis Reynolds DCL FBA QC (H)

Sir David Steel (O)

Kenneth Aylett Esq (S)

Sir Michael Morland (O)

Neil Kaplan CBE QC SC (HK) (S)

Andrew Tidbury Esq (B)

Sir John Drinkwater QC (S)

The Rt Hon Sir William Gage (S)

Sir Timothy Walker (S)

Sir Michael Turner (U)

Paul Purnell Esq QC (U)

Nicholas Merriman Esq QC (O)

Nigel Inglis-Jones Esq QC (U)

His Honour Jonathan Playford QC (S)

Robin De Wilde Esq QC (S)

The Rt Hon the Lord Scott of Foscote (S)

Sir Thayne Forbes (O)

Peter Birkett Esq QC (B)

Sir Thomas Legg KCB QC (S)

Sir Brian Jenkins GBE (H)

Robin Purchas Esq QC (B)

Mark Tennant Esq (O)

Murray Pickering Esq QC (O)

Sir Geoffrey Nice QC (B)

Sir Richard Curtis QC (U)

The Baroness Mallalieu QC (U)

Sir Frederick Crawford DL FR Eng (H)

Sir Allan Green KCB QC (U)

Anthony Anderson Esq QC (U)

The Baroness Deech DBE QC (Hon) (O)

The Rt Hon Sir William Aldous (U)

Harry Turcan Esq (S)

Professor Sir Ian Kennedy QC FBA (H)

Neville Thomas Esq QC (U)

Gerald Angel Esq (S)

Sir Brian Keith (S)

The Rt Hon the Lord Richard QC (U)

The Rt Hon Sir Richard Buxton (S)

His Honour John Weeks QC (U)

Anthony Smith Esq QC (U)

Professor Sir Royston Goode CBE FBA QC (H)

Michael Spencer Esq QC (B)

Sir Christopher Holland (S)

His Honour Roderick Denyer QC (O)

Sir Edward Evans-Lombe (S)

The Rt Hon Viscount Runciman of Doxford CBE FBA (H)

The Rt Hon the Lord Irvine of Lairg (S)

John Swift Esq QC (U)

Evan Stone Esq QC (S)

His Honour James Stewart QC (U)

Her Honour Shirley Anwyl QC (S)

The Rt Hon the Lord Howard of Lympne CH QC (U)

Eben Hamilton Esq QC (S)

His Honour Jeremy Roberts QC (O)

His Honour John Previte QC (U)

Sir David Clarke (U)

The Rt Hon the Lord Sainsbury of Preston Candover KG (H)

Sir Neil Butterfield (S)

Richard Clegg Esq QC (U)

His Honour Michael Lawson QC (O)

Michael Lyndon-Stanford Esq QC (U)

The Reverend Roger ter Haar QC (B)

The Rt Hon Sir Jonathan Parker (S)

Stephen Bickford-Smith Esq (B)

Sir Peter Singer (S)

The Rt Hon Sir Anthony Hooper (O)

Victor Temple Esq QC (S) Sir Richard Plender (U) Sir Robert Akenhead (O) Dame Caroline Swift DBE (O) Justin Fenwick Esq QC (B) Thomas Baxendale Esq (S) Kevin de Haan Esq QC (B) His Honour Jeffrey Burke QC (U) Ian Glick Esq QC (B) The Rt Hon the Lord Falconer of Thoroton (O) The Rt Hon Jack Straw (S)

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The Inner Temple Yearbook 2017–2018

Masters of Bench

MASTERS OF BENCH

Chief Justice Yong Pung How (H)

Andrew Trollope Esq QC (B)

The Hon Mrs Justice Carr DBE (J)

Judge Richard Posner (H)

Iain Milligan Esq QC (U)

Dr Mary Malecka (O)

Professor Andrew Ashworth PhD DCL FBA (L)

Sir Robert Francis Esq QC (B)

The Reverend and Valiant Master of the Temple (H)

The Rt Hon Lord Anthony Hughes of Ombersley (J)

Miss Elizabeth-Anne Gumbel QC (B)

Adrian Brunner Esq QC (S)

His Honour John Adams (S)

John Marrin Esq QC (B)

Nicholas Asprey Esq (O)

Sibghatullah Kadri Esq QC (S)

Richard Drabble Esq QC (B)

Augustus Ullstein Esq QC (B)

Robert Webb Esq QC FRAeS (O)

Gavin Kealey Esq QC (B)

John Ross Esq QC (B)

Nicholas Davidson Esq QC (B)

His Honour Judge Burrell QC (J)

Professor Michael Lerego QC (O)

Miss Rosamund Horwood-Smart QC (O)

The Rt Hon Lord Justice Flaux (J)

Jeremy Storey Esq QC (B)

Stuart Brown Esq QC (B)

Edward Fitzgerald Esq CBE QC (B)

James Turner Esq QC (B)

His Honour Judge Everall QC (J)

His Honour Judge Melbourne Inman QC (J)

The Hon Mrs Justice Lang DBE (J)

His Honour John Milford QC (S)

The Hon Mr Justice Green (J)

The Hon Justice Salihu Moddibo Alfa Belgore (V)

Stephen Solley Esq QC (O)

Sir Stuart Lipton (H)

His Honour Judge Simon Davis (J)

Dorian Lovell-Pank Esq QC (B)

Anthony Porten Esq QC (U)

Senior District Judge Arbuthnot (J)

The Hon Mr Justice Field (J)

His Honour Nicholas Browne QC (O)

His Excellency Judge Kenneth Keith ONZ KBE (H)

Sir Hayden Phillips GCB DL (H)

His Honour Judge Pegden QC (J)

The Hon Mr Justice Wyn Williams (O)

His Honour Denis Orde (O)

David Wilby Esq QC (B)

The Rt Hon Lord Justice Moylan (J)

The Rt Hon Sir John MacDermott (H)

The Hon Mr Justice Goss (J)

His Honour Mervyn Roberts (O)

The Hon Dr Justice Adarsh Anand (V)

His Honour Judge Leonard QC (J)

Robert Rhodes Esq QC (B)

Sir Jeffery Bowman FCA (H)

Miss Alison Foster QC (B)

His Honour David Tyzack QC (S)

Justice Richard Goldstone (H)

Roger Stewart Esq QC (B)

Patrick Upward Esq QC (B)

His Honour Michael Fysh QC (S)

The Hon Mr Justice Ribeiro (H)

His Honour Judge Melville QC (J)

David Friedman Esq QC (S)

Professor Christopher Forsyth (L)

Miss Sally Smith QC (B)

Nicholas Stewart Esq QC (B)

Professor John Gardner (L)

His Honour Judge Jeremy Richardson QC (J)

Timothy Raggatt Esq QC (B)

Dr Mads Andenas PhD MA DPhil (L)

Nigel Giffin Esq QC (B)

Dame Laura Cox DBE (U)

Professor John Spencer CBE QC (L)

Jonathan Swift Esq QC (B)

The Rt Hon Lady Justice Black DBE (J)

Christopher Brougham Esq QC (B)

The Rt Rev and Rt Hon Lord Habgood (H)

The Rt Rev and Rt Hon Dr the Lord Williams of Oystermouth (H)

Sir Richard Gibbs (U)

Malcolm Bishop Esq QC (B)

Miss Susanna FitzGerald QC (B)

The Rt Hon The Lord Collins of Mapesbury LLD FBA (O)

Mrs Gay Martin (O)

Orlando Pownall Esq QC (B)

Philip Sapsford Esq QC (U)

Sir Bernard Eder (O)

The Rt Hon The Baroness Clark of Calton QC (O)

His Honour Judge Bourne-Arton QC (J)

The Hon Mr Justice Davis (J)

His Eminence Cardinal Cormac Murphy-O’Connor (H)

The Hon Mr Justice Nugee (J)

Richard Lissack Esq QC (B)

Professor Dr Jürgen Schwarze (H)

George Staple Esq CB QC (H)

Abbas Lakha Esq QC (B)

His Honour David Paget QC (O)

Michael de Navarro Esq QC (S)

Her Honour Frances Kirkham CBE (H)

Her Honour Elisabeth Fisher (O)

Godfrey Carey Esq QC (O)

The Rt Hon Lady Justice King DBE (J)

The Hon Mr Justice Openshaw QC (J)

Rex Tedd Esq QC (B)

The Hon Mr Justice Michael Soole (J)

His Honour Christopher Critchlow (J)

Johnny Veeder Esq QC (B)

His Honour Judge Grainger (J)

His Honour Toby Hooper QC (O)

The Rt Hon the Lord Macdonald of River Glaven QC (O)

Miss Margaret Bowron QC (B)

James Guthrie Esq QC (B)

The Rt Hon Sir Dennis Byron (V)

Sir Raymond Jack (U)

Terence Coghlan Esq QC (S)

His Honour David Hodson (S)

Andrew Caldecott Esq QC (B)

His Honour Richard McGregor-Johnson (O)

Jonathan Gaisman Esq QC (B)

Dr Pehr Gyllenhammar (H)

The Hon Mr Justice Popplewell (J)

Sir Alan Wilkie (O)

The Hon Mr Justice Moor (J)

Peter Joyce Esq QC (B)

Sir Alex Allan KCB (H)

Christopher Moger Esq QC (B)

Sir Edward Caldwell KCB QC(Hon) (H)

The Hon Philip Havers QC (B)

Ian Laing Esq CBE DL (H)

His Honour Judge Iain Hughes QC (J)

Sir Ian McKellen CH CBE (H)

Tim Charlton Esq QC (B)

David Spens Esq QC (B)

The Rt Hon Lord Justice Floyd (J)

His Honour Judge Ford QC (J)

The Hon Mr Justice Patrick Chan (H)

His Honour Judge Hammerton (J)

The Honourable Sir John McGrath (H)

His Honour Thomas Crowther QC (U)

The Rt Hon The Lord Sacks (H)

Sir David Maddison (O)

Professor Sir Alan Dashwood KCMG CBE QC (B)

His Honour Nicholas Coleman (O)

Nigel Pleming Esq QC (B)

Brigadier Peter Little CBE (H)

His Honour Judge Owen Davies QC (J)

Sir Brian Williamson CBE (H)

Charles George Esq QC (O)

Dr Stephen Cretney (L)

The Rt Hon the Lord Cullen of Whitekirk KT (H)

The Rt Hon Lord Hamilton (H)

The Honourable Tan Sri Dato’ James Foong Cheng Yuen (V)

M Jean-Paul Costa (H)

The Hon Justice Michael Kirby AC CMG (H)

Guy Beringer Esq QC CBE (H)

M Luzius Wildhaber (H)

Philip Mott Esq QC (B)

David Yale Esq FBA QC (L)

Michael Austin-Smith Esq QC (S)

Thomas Seymour Esq (B)

His Honour Judge Nuigel Lithman QC (J)

His Honour Judge Peter Collier QC (J)

Sir Nicholas Stadlen (O)

Her Honour Judge Hildyard QC (J)

Michael Redfern Esq QC (B)

David Streatfeild-James Esq QC (B)

Andrew Goodman Esq (B)

Robert Smith Esq QC (B)

The Hon Mr Justice Dingemans (J)

Grahame Aldous Esq QC (B)

156

Nicholas Atkinson Esq QC (B)

His Honour Judge Seed QC (J) Charles Gibson Esq QC (B) The Hon Mrs Justice Simler DBE (J) Stuart Catchpole Esq QC (B) Iain Christie Esq (O) His Honour Giles Forrester (O) His Honour Alistair McCreath (O) His Honour Gregory Stone QC (S) Patrick O’Connor Esq QC (B) James Corbett Esq QC (O) His Honour Judge Bayliss QC (J) Steven Kay Esq QC (B) David Green Esq CB QC (O) Peter Wright Esq QC (B) Miss Deborah Eaton QC (B) The Hon Mr Justice Lavender (J) His Honour Charles Harris QC (O) His Honour Judge Mark Brown (J) The Rt Hon Lady Justice Sharp DBE (J)

Masters of Bench

The Inner Temple Yearbook 2017–2018

Guy Fetherstonhaugh Esq QC (B)

Alexander Hall Taylor Esq (B)

Miss Rachel Spearing (B)

Matthew Reeve Esq (B)

Professor Cheryl Thomas QC (L)

The Hon Mr Justice Nasir-Ul-Mulk (V)

Russell Coleman Esq SC (V)

John Griffith-Jones Esq (H)

The Rev Hugh Mead (H)

His Eminence Cardinal Vincent Nichols MA MEd STL (H)

Michael Payton Esq QC (H)

His Honour Judge Carey DL (J)

Ms Libby Purves OBE (H)

Her Honour Judge Bancroft (J)

Her Honour Judge Deborah Taylor (J)

Judge Paul Mahoney (V)

Her Honour Judge Corbett (J)

Michael Humphries Esq QC (B)

Chief Justice Sundaresh Menon (H)

His Honour Judge The Reverend James Patrick (J)

Miss Alison Levitt QC (O)

Nigel Aiken Esq QC SC (V)

Dr Anselmo Reyes (V)

His Honour Stephen Oliver-Jones QC (O)

The Most Revd and Rt Hon Justin Welby (H)

The Rt Hon Michael Gove MP (H)

His Honour Charles Wide QC (U)

Richard Benson Esq QC (B)

The Honourable Justice Ann Ainslie-Wallace (L)

Thomas Woodcock Esq CVO DL FSA (O)

Mark George Esq QC (B)

The Hon Mr Justice MacDonald (J)

Professor Barry Rider OBE (L)

His Honour Judge Roger Thomas QC (J)

Christopher Sharp Esq QC (B)

The Hon Mrs Justice Juliet May DBE (J)

Michael Burrows Esq QC (B)

His Honour Judge Tolson QC (J)

Professor Robert Walsh (L)

Jonathan Laidlaw Esq QC (B)

His Honour Judge Sloan QC (J)

The Honourable Justice Baragwanath KNZM QC (V)

Rory Phillips Esq QC (B)

His Honour Judge Robinson (J)

The Rt Hon Lord Justice Peter Jackson (J)

Martin Griffiths Esq QC (B)

Thomas Kark Esq QC (B)

Miss Tracy Ayling QC (B)

Richard Heaton Esq (O)

Her Honour Judge Munro QC (J)

The Hon Mr Justice Dove (J)

His Honour Judge Hiddleston (J)

Her Honour Judge Gillian Matthews QC (J)

The Honourable Justice Iain Morley (V)

Tim Lord Esq QC (B)

Miss Ruth Henke QC (B)

Dr Colin Ong QC (V)

Daniel Toledano Esq QC (B)

David Wolfson Esq QC (B)

Miss Helen Davies QC (B)

Miss Sarah Clarke QC (B)

Paul Greaney Esq QC (B)

The Rt Hon Lord Bonomy LLD (H)

Adam Constable Esq QC (B)

Dr Catherine MacKenzie (O)

Judge Koen Lenaerts (H)

Dr Vanessa Davies (O)

Kieron Beal Esq QC (B)

His Honour Simon Tonking DL (O)

The Rt Hon Lord Menzies (H)

Ms Saira Kabir Sheikh QC (B)

Paul Bleasdale Esq QC (B)

The Chief Rabbi Ephraim Mirvis (H)

Justice George Wei (V)

Andrew Tait Esq QC (B)

Lyonpo Sonam Tobgye (H)

Timothy Le Cocq QC (V)

Simon O’Toole Esq (B)

Philip Punwar Esq (V)

Sir Michael Arthur KCMG (H)

The Hon Mr Justice Cobb (J)

Professor the Hon George Hampel QC AM (L)

Dr Tom Kinninmont (H)

The Hon Sir Peter Caruana KCMG QC (V)

His Excellency Sir Elliott Belgrave GCMG KA CHB QC (V)

Professor John Wass MA MD FRCP (H)

His Majesty King Jigme Khesar Namgyel Wangchuck of Bhutan (H)

The Hon Reginald Rhoda Esq CBE (V)

David Aaronberg Esq QC (B)

Datuk Sulong Matjeraie (V)

His Honour Judge Wait (J)

Lloyd Williams Esq QC (B)

Mrs Alison Saunders CB (O)

His Honour Judge Philip Waller CBE (J)

Miss Penelope Reed QC (B)

Ami Feder Esq (B)

The Rt Hon The Lord Maude of Horsham (O)

His Honour Judge Lucraft QC (J)

His Honour David Mitchell (O)

Michael Pooles Esq QC (B)

Ian Winter Esq QC (B)

John Ryder Esq QC (B)

Martin Spencer Esq QC (B)

Adrian Keeling Esq QC (B)

Mark Wyeth Esq QC (B)

Her Honour Judge Patricia Lynch QC (J)

District Judge Ikram (J)

Jeremy Hill-Baker Esq (B)

Miss Susan Jacklin QC (B)

Her Honour Judge Evans-Gordon (J)

Crispin Aylett Esq QC (B)

Aftab Jafferjee Esq QC (B)

Andrew Warnock Esq QC (B)

Richard Humphreys Esq QC (B)

Richard Barraclough Esq QC (B)

Thomas Mitcheson Esq QC (B)

The Hon Mrs Justice Roberts DBE (J)

Peter Village Esq QC (B)

Ms Harini Iyengar (B)

Miss Máirín Casey (O)

Ian Stern Esq QC (B)

Ms Minka Braun (B)

Miss Eleanor Laws QC (B)

Miss Raquel Agnello QC (B)

Martin Goudie Esq QC (B)

Professor the Worshipful Mark Hill QC (B)

Alastair Hodge Esq (B)

Ms Patricia Robertson QC (B)

Graham Chapman Esq QC (B)

Sam Stein Esq QC (B)

Ms Desiree Artesi (B)

Professor Nicola Lacey CBE FBA (H)

Miss Fiona Jackson (B)

The Rt Hon the Baroness Prashar CBE (H)

Professor David D Caron (O)

The Baroness Shackleton of Belgravia LVO (H)

Andrew Cayley Esq CMG QC (O)

Professor Timothy Endicott (L)

The Rt Hon The Lord Hunt Of Wirral MBE (H)

Professor Timothy Macklem (L)

The Hon Philip Remnant CBE ACA (H)

Professor Julian Webb (L)

Robert Buckland Esq QC MP (O)

The Rt Hon Lord Reed (J)

Professor Sir Roger Scruton FBA FRSL (H)

His Honour Inigo Bing (O)

Professor Spyridon Flogaitis (L)

Charles Parsley Esq (B)

Paul Infield Esq (B)

Miss Julia Dias QC (B)

Stuart Denney Esq QC (B)

The Hon Mrs Justice Finola O’Farrell DBE (J)

Miss Anne Richardson (B)

His Honour Judge Blair QC (J)

The Hon Simon Davenport QC (B)

B – Barrister Governing Bencher

Alistair Schaff Esq QC (B)

Leslie Thomas Esq QC (B)

J – Judicial Governing Bencher

His Honour Judge Neil Clark (J)

Miss Sara Lawson QC (B)

S – Senior Bencher

Harry Matovu Esq QC (B)

Christopher Quinlan Esq QC (B)

U – sUpernumerary Bencher

Miss Christina Lambert QC (B)

Miss Camilla Bingham QC (B)

O – Other Governing Bencher

Miss Taryn Lee QC (B)

Ms Anneliese Day QC (B)

H – Honorary Bencher

Philip Moser Esq QC (B)

Scott Matthewson Esq (B)

L – Legal Academic Bencher

His Honour Judge Simon (J)

Miss Kelyn Bacon QC (B)

V – oVerseas Bencher

Dr Navinchandra Ramgoolam GCSK FRCP (V)

His Honour Judge Farrell QC (J)

Key

157

The Inner Temple Yearbook 2017–2018

People Finder

PEOPLE FINDER

TREASURY

020 7797 8250

enquiries@innertemple.org.uk

Sub-Treasurer

Patrick Maddams

020 7797 8177

subtreasurer@innertemple.org.uk

Executive Assistant to the Sub-Treasurer

Jennie Collis

020 7797 8177

jcollis@innertemple.org.uk

Head of Treasury Office

Henrietta Amodio

020 7797 8182

hamodio@innertemple.org.uk

Assistant to the Head of Treasury Office

Nadia Ruiz

020 7797 8182

nruiz@innertemple.org.uk

Member Events and Administration Manager

Kate Peters

020 7797 8183

kpeters@innertemple.org.uk

Member Events and Administration Assistant

Rosy Gotelee

020 7797 8264

rgotelee@innertemple.org.uk

Membership Registrar

Jude Hodgson

020 7797 8206

jhodgson@innertemple.org.uk

Records and Membership Assistant

Jacqueline Fenton

020 7797 8241

jfenton@innertemple.org.uk

Archivist (Wednesday-Friday)

Celia Pilkington

020 7797 8251

cpilkington@innertemple.org.uk

Assistant Archivist

James Lloyd

020 7797 8251

jlloyd@innertemple.org.uk

EDUCATION & TRAINING

020 7797 8208

education@innertemple.org.uk

Director of Education

Fiona Fulton

020 7797 8207

ffulton@innertemple.org.uk

Education Co-ordinator and Assistant to the Director of Education

Julia Armfield

020 7797 8207

jarmfield@innertemple.org.uk

Professional Training Manager

David Miller

020 7797 8209

dmiller@innertemple.org.uk

Education Co-ordinator

Kerry Upham

020 7797 8213

kupham@innertemple.org.uk

Scholarships and Students Manager

Eamonn O’Reilly

020 7797 8210

eoreilly@innertemple.org.uk

Scholarships and Students Co-ordinator

Georgina Everatt

020 7797 8211

geveratt@innertemple.org.uk

Outreach Manager

Struan Campbell

020 7797 8214

scampbell@innertemple.org.uk

Outreach Co-ordinator

Daisy Mortimer

020 7797 8262

dmortimer@innertemple.org.uk

COLLECTOR’S DEPARTMENT

020 7797 8187

collectors@innertemple.org.uk

Collector David

Bartlett

020 7797 8185

dbartlett@innertemple.org.uk

Financial Controller

Ania Johnson

020 7797 8242

ajohnson@innertemple.org.uk

Assistant Collector

Emma Prayer

020 7797 8186

eprayer@innertemple.org.uk

Accounts Assistant

Joanna Zawada

020 7797 8187

jzawada@innertemple.org.uk

Head of IT / Systems Librarian

Peter Higgins

020 7797 8220

phiggins@innertemple.org.uk

Senior Network Administrator

Jonathan Delaney

020 7797 8188

jdelaney@innertemple.org.uk

Technology and Communications Officer

Paul Clark

020 7797 8229

pclark@innertemple.org.uk

LIBRARY

020 7797 8217

library@innertemple.org.uk

Librarian and Keeper of Manuscripts

Margaret Clay

020 7797 8215

mclay@innertemple.org.uk

Deputy Librarian

Tracey Dennis

020 7797 8248

tdennis@innertemple.org.uk

Assistant Librarian (enquiries and cataloguing)

Michael Frost

020 7797 8248

mfrost@innertemple.org.uk

Library Administrator

Tina Williams

020 7797 8216

twilliams@innertemple.org.uk

Assistant Librarian (enquiries and acquisitions)

Sally McLaren

020 7797 8221

smclaren@innertemple.org.uk

Senior Library Assistant

Simon Hindley

020 7797 8222

shindley@innertemple.org.uk

Library Assistant

Lucia Asnaghi

020 7797 8217/ 8218

lasnaghi@innertemple.org.uk

Library Assistant

Verity Parkinson

020 7797 8217/ 8218

vparkinson@innertemple.org.uk

SURVEYOR’S DEPARTMENT

020 7797 8200

surveyors@innertemple.org.uk

Director of Properties and Surveyor

Richard Snowdon

020 7797 8203

rsnowdon@innertemple.org.uk

Capital Programme Manager

Nicholas Waring

020 7797 8192

nwaring@innertemple.org.uk

Estates Support Officer

Lukas Jelinek

020 7797 8199

ljelinek@innertemple.org.uk

Office Manager (Job Share) Rene Hicks and Anne Mason 020 7797 8173/ 8200 rhicks@innertemple.org.uk or amason@innertemple.org.uk Estates Officer

Albena Ahjem

020 7797 8202

aahjem@innertemple.org.uk

Mechanical and Electrical Engineer

Darren Readings

020 7797 8198

dreadings@innertemple.org.uk

Works Supervisor

Paul Simmonds

020 7797 8190

psimmonds@innertemple.org.uk

Cleaning Supervisor

Delbert Brooks (Julius Rutherfoord) 020 7797 8195

dbrooks@innertemple.org.uk

Electrical Supervisor

Ian Ward

iward@innertemple.org.uk

158

020 7797 8197

People Finder

The Inner Temple Yearbook 2017–2018

Plumbing and Mechanical Supervisor

Tony Baca

020 7797 8196

tbaca@innertemple.org.uk

Carpentry Supervisor

Steve Hanks

020 7797 8239

shanks@innertemple.org.uk

CATERING

020 7797 8230

catering@innertemple.org.uk

Head of Catering

Vicky Portinari

020 7797 8231

vportinari@innertemple.org.uk

Deputy Head of Catering

Priya Patel

020 7797 8233

ppatel@innertemple.org.uk

Events Manager

Adam Bracegirdle

020 7797 8260

abracegirdle@innertemple.org.uk

Sales and Marketing Manager

Tanya Riding

020 7797 8230

triding@innertemple.org.uk

Sales and Events Co-ordinator

Niamh McCarthy

020 7797 8193

nmccarthy@innertemple.org.uk

Office and Events Co-ordinator

Lorna Pay

020 7797 8179

lpay@innertemple.org.uk

Head Chef

Martin Cheesman

020 7797 8232

mcheesman@innertemple.org.uk

Pegasus Bar Manager

Elcio Mendonca

020 7797 8234

emendonca@innertemple.org.uk

Head Gardener

Andrea Brunsendorf

020 7797 8243

abrunsendorf@innertemple.org.uk

Senior Gardener (Maternity Cover)

Sophie Tatzkow

020 7797 8243

statzkow@innertemple.org.uk

Trainee Gardener

Emily Blackmore

020 7797 8243

eblackmore@innertemple.org.uk

PORTERS (including weekends and silent hours)

020 7797 8255

porters@innertemple.org.uk

Head Porter

Roger Ward

020 7797 8255

rward@innertemple.org.uk

Under Porter 1

Dennis Moffat

020 7797 8255

dmoffat@innertemple.org.uk

Under Porter 2

David McLeary

020 7797 8255

dmcleary@innertemple.org.uk

020 7583 1034

tgate@innertemple.org.uk

GARDEN

Tudor Street Gate and Night Security TEMPLE CHURCH

Master of the Temple

The Rev Robin Griffith-Jones

020 7353 8559

master@templechurch.com

Reader

The Rev Mark Hatcher

020 7353 8559

reader@templechurch.com

Verger

John Shearer

020 7353 3470

verger@templechurch.com

Administrator

Catherine de Satgé

020 7353 8559

catherine@templechurch.com

Director of Music

Roger Sayer

020 7427 5650

roger@templechurch.com

Associate Organist

Greg Morris

020 7427 5650

greg@templechurch.com

Music Administrator

Liz Clarke

020 7427 5650

liz@templechurch.com

Executive Producer

Carol Butler

020 7427 5641

carol@templechurch.com

Development Manager

Penny Jonas

020 7427 5641

penny@templechurch.com

Events and Marketing Manager

Lucy Mackay-Buller

020 7427 5641

lucy@templechurch.com

MUSIC OFFICE

TEMPLE MUSIC FOUNDATION (TMF)

COUNCIL OF THE INNS OF COURT (COIC)020 7822 0760info@coic.org.uk Director

James Wakefield

020 7822 0761

jwakefield@coic.org.uk

Personal Assistant to Director

Hayley Dawes

020 7822 0762

hdawes@coic.org.uk

BAR TRIBUNALS & ADJUDICATION SERVICE(BTAS) (at Gray’s Inn)

020 3432 7350

info@tbtas.org.uk

Registrar

Andy Russell

020 3432 7346

andy.russell@tbtas.org.uk

Administrator

Margaret Hilson

020 3432 7348

margaret.hilson@tbtas.org.uk

THE INNS OF COURT COLLEGE OF ADVOCACY (ICCA) (formerly ATC)

0207 822 0763

info@icca.ac.uk

Dean

James Wakefield

Operations Manager

Beth Phillips

020 7822 0764

bphillips@icca.ac.uk

Programme Director

Lynda Gibbs

020 7822 0768

lgibbs@icca.ac.uk

Administrator

Phoebe Makin

020 7822 0766

pmakin@icca.ac.uk

Digital Content Manager

Victoria Agenjo

020 7822 0769

vagengo@coic.org.uk

Programme Designer

Monica Whyte

020 7822 0767

mwhyte@icca.ac.uk

159

The Inner Temple Yearbook 2017–2018

INNER TEMPLE COMMITTEES CHAIRS OF BENCH COMMITTEES & SUB-COMMITTEES EXECUTIVE COMMITTEE Master Treasurer (Master Pittaway) ADVOCACY TRAINING COMMITTEE Master Ayling ARCHIVES COMMITTEE Master Baker BENCHERS’ SELECTION COMMITTEE Master Reader (Master Gloster) COMMUNICATIONS STEERING GROUP Master Agnello EDUCATION & TRAINING COMMITTEE Master Levitt ESTATES COMMITTEE Master Fetherstonhaugh

FINANCE SUB-COMMITTEE Master Dias (Senior Bench Auditor) INTERNATIONAL COMMITTEE Master Nice INVESTMENT SUB-COMMITTEE Master Henderson LIBRARY COMMITTEE Master Sally Smith MARSHALL HALL TRUST Jonathan Waite QC OUTREACH COMMITTEE Master O’Toole PEGASUS SCHOLARSHIP TRUST Master Guthrie PROJECT PEGASUS STEERING GROUP Master Reader (Master Gloster) PUPIL SUPERVISORS SUBCOMMITTEE Master Glick

160

Inner Temple Committees

QUALIFYING SESSIONS SUB-COMMITTEE Master Juliet May SCHOLARSHIPS COMMITTEE Master Taylor STUDENT SOCIETIES COMMITTEE Master Hodge THE TEMPLE CHURCH COMMITTEE Ian Mayes QC (Chairman, Middle Temple) TEMPLE EMPLOYED BAR FORUM Master Corbett TEMPLE MUSIC FOUNDATION Master Beringer TEMPLE WOMEN’S FORUM Master Taylor (Co-Convenor)

MASTERS OF THE CIRCUITS AND ASSISTANT MASTERS European: Master Nicholas Green Master Beal Midland: Master Bleasdale Northern Circuit: Master Birkett Master Bancroft North Eastern Circuit: Master Neil Clark Master Anne Richardson South Eastern: Master Coleman Master Jeremy Carey Master Fiona Jackson Wales & Chester: Master Parsley Western: Master Iain Hughes Master Hiddleston Master Quinlan

INNER TEMPLE REPRESENTATIVES ON EXTERNAL BODIES BAR COUNCIL Master Fetherstonhaugh Master Rhodes Gordon Nardell QC BARRISTERS’ BENEVOLENT ASSOCIATION Master Fisher Master Toledano COUNCIL OF THE INNS OF COURT Master Helen Davies Sub-Treasurer COIC MATCHED FUNDED PUPILLAGE SCHEME Master Scriven EDUCATION AND TRAINING COMMITTEE (BAR COUNCIL) Master Fetherstonhaugh INNS’ STRATEGIC ADVISORY GROUP Master Treasurer (Master Pittaway) Master Reader (Master Gloster) Master Helen Davies Sub-Treasurer INCORPORATED COUNCIL OF LAW REPORTING Master Laws Master Bowron INNS OF COURT AND BAR EDUCATIONAL TRUST Master Eder (Chair) Master Rory Phillips INNS OF COURT COLLEGE OF ADVOCACY Master Stein Master MacKenzie INNS OF COURT LIBRARIES LIAISON COMMITTEE Master Sally Smith INSTITUTE OF ADVANCED LEGAL STUDIES (IALS) Vacant SELDEN SOCIETY Master Cryan TRIBUNAL APPOINTMENTS BOARD Master Willbourne Master Ayling

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HIGH RESOLUTION PLAYER PIANO.

Presenting the first high-resolution player piano worthy of the revered Steinway & S ons n a m e . T h e S t e i n w a y S p i r i o i s a m a s t e r p i e c e o f a r t i s t r y, c r a f t s m a n s h i p a n d e n g i n e e r i n g t h a t d e l i v e r s a l l t h e nu a n c e a n d p a s s i o n o f l i v e p e r f o r m a n c e s b y t o d ay ’s m o s t r e n o w n e d mu s i c i a n s f r o m c l a s s i c a l t o j a z z t o r o c k . S T E I N W A Y. C O . U K / S T E I N W A Y- S P I R I O

STEINWAY HALL

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