3

the barristerISSN 1468-926X

price £3.0012th January 2009 - 19th March 2009

Features

editor: nigel simmonds0870 766 2715email: info@barristermagazine.com

publishers: media management corporation ltd

publishing director: derek payne

design and production: Alan pritchardemail: info@soinspire.me.uk

printed by: newnorth, milton Keynes

#39

p.20

The Constitution Committee

The House of Lords Select Committee on the Constitution

which I chair, was formed in 2001 in response to

a recommendation by the Royal Commission on the

Reform of the House of Lords. It is unusual among

committees in that it performs a dual role: scrutinising

legislation and conducting longer policy inquiries into

matters of constitutional importance.

Relations between the executive, the judiciary and

Parliament1

In July 2007 the

Committee published

its report on Relations

between the executive,

the judiciary and

Parliament which

analysed the evolving

c o n s t i t u t i o n a l

relationships between

the three arms of

the state and made a p.32

News

It is important that government and ministers understand and respect the vital independence of our judiciary

HiLArY TerM iSSUe

eSSeNTiAL reADiNG FOr BArriSTerS

www.barr istermagazine.com

LORD GOODLAD Chairman of the House

of Lords Constitution Committee

Bespoke tax advice for barristersChancery Lane, Londonwww.haysmacintyre.com

p.21

Study into local legal advice announced

Est. 1999

The Wood Review:Tough Love for the BVCThe Panel established by the BSB to review the

BVC and chaired by Derek Wood QC published

its report in July 2008, and all stakeholders –

regulators providers, practitioners, prospective

students and those advising them – are now

getting to grips with its recommendations.

These were comprehensive, in some cases

radical, and certainly reflected the range and

apparent seriousness of allegations to which the

review had been addressed. As listed in Chapter

5, they read rather like a bill of indictment: the

recruitment of too many students (numbers had

grown by 30% between 2003/4 and 2007/8);

for too few pupillages (a 5% reduction over the

same period); students who were unaware of

the risks they were running when they signed

up for an extremely expensive course; content

that was insufficiently challenging, realistic and

specialised to meet the needs of modern practice;

teaching standards that were too low; and a pass

level which was lower than any professionally

recognisable threshold of competence, even for

pupillage.

For providers this must have been depressing.

It might also have been somewhat perplexing,

because over the last ten years the BVC has been

subject to almost constant external scrutiny.

Its current content was prescribed in some

detail, via the so-called “Golden Book”,

by the Elias Working Party as recently as

2000. Since then, major aspects of the

12

16

p.10

Consultations on payment of Crown Court defence costs

Fears over the Future oF the court service and concern over justice budget cuts

The reports in October 2008 of cutbacks at the Ministry of Justice are the latest measures taken by the Government to reduce the expenditure on the justice system as a whole. These are not the first budget cuts which are likely to have an impact on the workings of the justice system in england and Wales.

By paul Marsh, president, Law Society of england & Wales

LegaL gLobaLization: an expanding picture

While the picture might be expanding, is a uniformity of legal practices spreading, thereby contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue our investigation into legal globalization and consider in particular the effect different jurisdictions are having on each other.

By Alistair King of Justis publishing

enhancing the participation oF chiLdren in FamiLy proceedings

The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate.

By Nicholas Crichton, district Judge, sitting at the Inner London Family proceedings Court

03the barrister

Fears over the future of the court service and concern over justice budget cutsBy Paul Marsh, President, Law Society of England & Wales

The reports in October 2008

of cutbacks at the Ministry

of Justice are the latest

measures taken by the

Government to reduce the

expenditure on the justice

system as a whole.

These are not the first budget cuts which are

likely to have an impact on the workings of

the justice system in England and Wales.

The courts and legal aid system have been

at crisis point for some time, so there is no

scope for further cuts without cutting into

vital public services.

The Court Service itself has suffered from

years of underinvestment, and we badly need

sustained investment in court staff and their

supporting infrastructure. Job cuts and the

abandonment of longer-term programmes

to modernise court infrastructure are not

the right way forward for court users or the

wider public interest. A modern, efficient

court system is essential to the well being of

the economy as a whole.

Legal Aid

There are ongoing concerns about the

possible impact on the legal aid budget of

the budgetary pressures that have been

revealed. We already know that the Carter

reforms have led to the Government making

significant savings as against the previous

trend lines for legal aid expenditure, and we

have received repeated assurances that the

Ministry believes that legal aid expenditure is

now sufficiently under control that no further

cuts or restructuring will be required beyond

those proposals already signposted, such as

for Crown Court means testing, private law

family litigation and family advocacy.

Moreover, in the light of the Ministry’s

willingness to reach a deal with QCs that

increases the payments to the highest paid

barristers in the system – albeit on the basis

of arrangements that should be cost neutral

– it would be politically very difficult for the

Ministry now to make cuts elsewhere that

impact on solicitors or clients. In the light

of the unequivocal assurance from Justice

Secretary, Jack Straw, that this settlement

was affordable, any cuts to the system that

impacted upon the solicitors profession

would be viewed as a significant breach of

faith by the Ministry.

The cuts in staff at the Legal Services

Commission (LSC) do give some cause for

concern to barristers as well as solicitors.

Practitioners frequently complain about delay

in their dealings with the Commission, and it

would be very damaging if the effect of these

cuts was to increase delays.

The delays in responding to case plans in very

high cost family cases are exorbitant. During

the credit crunch, it is more vital than ever

that bills are processed and paid promptly.

It would not be acceptable if these matters

were addressed at the cost of introducing

new delays in parts of the system that are

currently reasonably efficient.

Having said that, this could represent an

opportunity for the profession. The LSC

needs to recognise the limits on what it can

reasonably achieve, and to tailor its activity

accordingly. This may require a reduction

in the information it demands from firms,

to reflect what it genuinely has the scope

to process. There is no point in demanding

huge amounts of information that are never

processed and don’t add value to the planning

and/or accountability of the system.

It may involve radical downsizing of its

audit policy. In theory, since a peer review

result lasts three years, every firm should

be reviewed no less often than once during

the life of each contract. In practice, the

LSC is able to achieve only a fraction of this

target. The system needs to be designed

in accordance with what the LSC can

realistically do in practice, not what it would

like to do in an ideal world. This applies with

equal force to the design of the scheme for

quality assurance for advocates.

It will hopefully involve the devolution of

much greater powers to the lawyers and

advisors to take the steps professionally

necessary on a case. At present, firms have

to undergo a degree of micromanagement on

individual cases that would be hard to defend

even if the LSC did have the resources to do

it effectively.

In terms of proportionality of cost to result,

and in terms of the delay caused in delivering

the service to clients, this level of involvement

in individual cases must end. The LSC’s job is

to manage the system, not to manage every

case within it.

Even totemic projects such as CLACs and

CLANs and Best Value Tendering need to be

carefully considered. They require huge costs

in order to deliver rather speculative benefits.

With the current budgetary pressures, are

these really more important than maintaining

the current day to day service to clients?

I have been extolling to the profession the

concept of the Business of Law – a central

theme of my presidency - encouraging law

firms to run efficiently and follow sound

business principles. Many have risen to

that challenge. Perhaps the LSC needs very

speedily to adopt the same principles.

Technology

More than 10 years after Lord Woolf, in his

report on access to civil justice, expressed

his 'conviction that sensible investment in

appropriate technology is fundamental to the

future of our civil justice system' the possible

abandonment of the Court Service's flagship

proposals to introduce electronic filing and

document management (EFDM) systems to

04 the barrister

the civil and family courts is depressing. It is

also short-sighted.

The pace of technological change is

accelerating and Lord Woolf's expectations

for technology in the courts now seem as

retrospectively modest as they are unfulfilled.

It is easy to forget, to take just one example,

that back in 1996 a good Pentium PC with an

800 Mb disc and running Windows 95 would

have cost a law firm around £2,200! The

world has changed. The courts have barely

changed. In essence they are still hugely

paper-based and relatively inefficient.

If the government is not prepared to make

significant investment in the technological

infrastructure and back-office processes

of the courts now, the position can only get

worse.

In the first place, a cutback in such essential

infrastructure appears inconsistent with

a proclaimed policy of fiscal stimulus to

ameliorate recession. Secondly, the court

system will suffer further relative decline

both in relation to alternative jurisdictions

and in relation to our rising expectations. The

government knows this.

Civil Justice 2000 was subtitled 'A vision of

the Civil Justice System in the Information

Age'. It argued that 'for too long Government

departments have lagged behind the private

sector in the innovative and effective use of

new technology'. It identified the impact of

the internet on business and suggested that it

was necessary to 'look ahead in order to plan

and develop the future share of the justice

system in the information age'. I agree. At a

time when solicitors are embracing a range of

new technologies to compete as effective and

efficient businesses in the delivery of services

to their clients we need the government to

match its earlier vision and rhetoric with

action. Now is not the time to cut much

needed investment in the courts.

Virtual Courts

Virtual courts, one initiative where the courts

have looked to implement new technology,

unfortunately risks lowering the quality of

justice in our courts.

We are extremely concerned about the

potential for waste in the virtual courts pilot,

a project led by the Office for Criminal Justice

Reform (OCJR).

Planned for implementation in early 2009, it

will require the kitting-out of 16 custody suites

in London and Kent with video conferencing

equipment to enable defendants to 'appear'

at their first hearing in court.

There are enormous practical difficulties

and additional costs that this new way of

conducting court hearings, which will be

extended to include out-of-hours work, will

cause defence lawyers, which have only just

adjusted to the post-Carter world of fixed fee

cases to be dealt with in the one court centre,

with no additional travel and waiting.

The Law Society also has concerns about the

quality of the justice that will be delivered

remotely, and we very much doubt that the

supposed benefits - said to be savings arising

from fewer defendants failing to appear and

reduced police transport costs - will make the

very conservative estimate of £8.7 million,

as set out in the OCJR's business case,

worthwhile.

While it is acknowledged that video

technology is used to good effect in dealing

with administrative and appeal hearings,

here we are concerned with a person's

first appearance after arrest, when issues

such as release on bail are considered, and,

increasingly, pleas are required to be entered,

often when the person is not in possession of

proper disclosure and may not have received

any, or sufficient, legal advice.

We would politely suggest that before spending

large amounts of money on this costly

experiment, the fate of the 2002 Extended

Court Sitting Hours Pilot, otherwise known

as Night Courts, should be considered, and

the virtual courts pilot dropped, or, possibly,

confined to rural areas where there may well

be advantages to all involved in the criminal

justice system, not least the defendant.

Conclusion

The Law Society, and I am sure many other

representative bodies in the legal profession,

are ready to engage in constructive dialogue

with the Ministry on the on-going budget cuts

and state of our justice system. I made this

clear in my letter to the Justice Secretary

when news of the latest cut backs emerged.

The government must draw on the expertise

of the profession and others with day-to-day

knowledge of the working of the courts. We

must all be united in defending the justice

system.

Paul Marsh, President, Law Society of

England & Wales

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expressed may not necessarily be that of

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06 the barrister 07the barrister

Moves in mediation: confidentiality, the EU Directive and regulationBy Tony Allen, Solicitor, Mediator and Director of CEDR and Professor Karl Mackie, Barrister, Mediator and Chief Executive of CEDR

Confidentiality is at the

heart of the mediation

process. Because parties

feel safe from commercial

exposure or assumptions

of weakness drawn from

signals of readiness to compromise, they

attend mediations, parties talk directly to

each other in a way that litigation makes

virtually impossible, they disclose secret

positions to the mediator, they indicate

willingness to move from strongly expressed

litigation positions, they make offers to

each other and discuss alternative ways of

mending business relationships. Insurers

and defendants apologise and empathise

with injured claimants and often move huge

distances from their on-the-record positions

to achieve risk-moderated solutions. None

of this would happen if the parties did not

feel safe in doing so. There is no doubt that

this is a process which works and delivers

results.

But we need to be clear both about the

present situation in law and whether it needs

amendment. The imperative to do so lies

in the requirement of the EC Directive on

mediation that the UK legislates by 2011

to implement the relatively minimum

standards it sets for cross-border mediation.

With huge pressure on the legislative

timetable, mediation is unlikely to get much

Parliamentary time, especially if the topic

is limited to the minority activity of cross-

border mediation. The changes we make

to meet the Directive’s requirements almost

certainly will be applicable to mediation

generally.

While we may already just about meet

the Directive’s requirements on quality,

education, and enforceability of mediated

outcomes, and while we may feel resistant

to suspending limitation periods during

mediation (mainly because we fear satellite

litigation about when a mediation starts and

ends), we cannot escape consideration of the

reform of mediation confidentiality. Article 7

(headed Confidentiality of mediation) reads:

1. Given that mediation is intended to

take place in a manner which respects

confidentiality, Member States shall ensure

that, unless the parties agree otherwise,

neither mediators nor those involved in the

administration of the mediation process

shall be compelled to give evidence in civil

and commercial judicial proceedings or

arbitration regarding information arising out

of or in connection with a mediation process,

except:

(a) where this is necessary for overriding

considerations of public policy of the Member

State concerned, in particular when required

to ensure the protection of the best interests

of children or to prevent harm to the physical

or psychological integrity of a person; or

(b) where disclosure of the content of the

agreement resulting from mediation is

necessary in order to implement or enforce

that agreement.

This is a very watered-down version of

what appeared in the previous version of

the Directive. Mediators and providers were

previously placed under an absolute bar over

giving evidence about:

• Party invitations or willingness to

participate in a mediation;

• Anyparty’sstatements,admissions

and settlement proposals made during a

mediation;

• Any mediator proposal for

settlement and any party’s expression of

willingness to accept it; and

• Any document prepared solely for

the purpose of a mediation.

The earlier draft went further by providing

that any such evidence could not be ordered

by a court to be given by anyone else who

had attended the mediation (remembering

that the mediator is absolutely barred

anyway) and if offered should be treated as

inadmissible, in both proceedings related to

the mediated dispute and also other litigation.

It could only be admitted to the extent

required to implement or enforce a mediated

settlement agreement; for overriding public

policy reasons; or where the mediator and

the parties agree. It also provided that

otherwise admissible evidence would not be

rendered inadmissible simply because it was

used in a mediation.

So it not only gave absolute protection to

mediators from being compelled to give

evidence, but also restricted the content

of evidence that anyone could give about

what happened at the mediation in any later

proceedings, a far cry from the qualified

protection to mediators given as the only

component of mediation confidentiality in the

Directive’s final form.

Of course we have no such statutory

protection for mediators at all in English

law, merely a contractual undertaking by the

parties not to call the mediator or mediation

provider as a witness. So we need legislation

to achieve even this limited requirement.

But do we need more, and is the current

law clear enough? I suggest that we need

to establish a higher standard and greater

clarity.

Recently judges have either felt able or

been invited to consider what happened at

a mediation, something which is unsettling

for mediators who are used to assuring

parties and their advisers at the outset

of the process that what happens at the

mediation is off the record and not available

to a judge. As a matter of practice, I now

qualify this by saying that it is unavailable

unless you all consent to tell the judge what

happened, reflecting that the parties have

a joint, but not a several, right to waive

“without prejudice” privilege. In several

recent cases this seems to be what happened.

For instance in both Chantry Vellacott v

Convergence Group and Malmesbury v Strutt

& Parker, the parties told the judge what they

had offered each other during the mediation,

enabling the judge to find that one of them

had been unreasonable in his stance. On

the other hand, in Reed Executive v Reed

Business , the court would not go behind

without prejudice correspondence when

considering a costs award, and in Cumbria

Waste Management v Baines Wilson, the

judge would not permit solicitor defendants

to have access to mediation material

generated at a previous mediation to settle a

dispute between the claimants and DEFRA,

because DEFRA declined to waive privilege

or their contractual right to confidentiality

of the process. In Brown v Rice and Patel,

the judge held that he was entitled to

look at what happened at a mediation to

decide whether settlement terms had been

agreed, even though one party and indeed

the mediation provider objected, and even

though it was clear that no written settlement

agreement had been produced, as required

by the mediation agreement.

No one wants there to be confusion about

what contractual confidentiality and “without

prejudice” privilege mean in relation to

mediation. It will unsettle what is a very

useful process. On the whole there has been

no difficulty about it, but harder cases are

emerging which call for clarification of the

law. To what extent, and from whom, can a

court receive evidence to support or defeat

a claim by a party that their lawyer under-

or over-settled a case in mediation? Can a

third party claimant get access to mediated

settlement discussions if the parties object,

even if affected by the level of settlement (such

as a sub-contractor affected by settlement

between the client and main contractor, or an

earlier lawyer being sued for the difference

between the settlement figure and some

objectively higher appropriate level)? How

precisely may a party, who settles on the

basis of a material misrepresentation made

during a mediation or subject to a threat,

unstitch that settlement? Is it possible to sue

a negligent mediator when this would involve

revealing what the mediator did behind the

veil of confidentiality? Is there a distinction

between contractual confidentiality – which

normally is no bar to court investigation –

and “without prejudice” privilege, and if so

how do they interact?

Such problems have already emerged for

consideration in the US and Australia, in

particular, and some fine distinctions are

being drawn. The Uniform Mediation Act in

the US suggests hearings in camera to sort

out such issues before mediation material

enters the public domain by judicial decision.

This may be a sound approach here too,

perhaps invoking the power of the court

under CPR 39 to order private hearings.

The debate sparked by the EC Directive’s

rather limited aspirations is one we now

need to develop for these wider reasons.

The regulatory debate

Another key issue facing the mediation

community is how it should be regulated.

There is a pressure felt amongst the mediation

community to set some standards in place in

order to discourage “cowboys” leaping on to

a new market bandwagon, and to encourage

good practice rather than bad practices so as

to create a way for buyers of services to know

that they are dealing with someone of at least

reasonable quality.

Although there are limited instances of real

problems with this flexible, non-binding

process, the Civil Mediation Council (CMC) is

aiming to set both basic standards of practice

requirements for individual mediators and

mediation organisations which register with

it. Both groups will have to (a) confirm that

they meet the standards set, and (b) will

have to commit to follow a Code of Good

Practice, and (c) to be subject to the CMC

independent public complaints scheme. It

is a three-part system of supervision that,

while being light touch, aims to ensure that

reasonable minimum requirements are

followed by anyone claiming to operate in a

professional way. The CMC will encourage

courts and public sector bodies particularly,

to ensure that they use registered mediators

or organisations, if they are inviting tenders

for services or otherwise using mediators or

organisations delivering mediation services.

In addition to commercial mediation, this

scheme will be open to workplace providers

of mediation, a development stimulated by

recent employment legislation reform.

08 the barrister

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Fusion: A threat to independence in Criminal JusticeWith legal-aid fees plummeting, the Crown Prosecution Service and defence solicitors using more and more employed “in-house” advocates instead of independent barristers, with judges refusing to allocate serious cases to Queens Counsel, and the morale of the independent criminal Bar at an all-time low because so many are not even earning a living, Sir Ivan Lawrence QC answers those who think that the resulting, and seemingly inevitable, moves towards “fusion”, (barristers and solicitors becoming a single category of lawyer), will be good for the criminal justice system.

To begin with, the case

for “fusion” has nothing

to do with the quality of

criminal justice: it is about

money. Yet the idea that

“fusion” would result in a

considerable saving of money to the tax-

payer, is ridiculous. Solicitors, who have

higher overheads, charge far higher hourly

rates: indeed they employ barristers in the

magistrates courts because it is cheaper for

them than having to appear themselves.

Furthermore, barristers who necessarily pay

their own overheads and pensions would,

if they joined as employees the Crown

Prosecution Service or any other government

legal organisations, have them paid at the

taxpayer’s expense - plus health provision

and annual holidays with pay!

Secondly, the assumption that, having both a

solicitor to prepare a case and a barrister to

present it, unnecessarily doubles the work

and therefore the cost of criminal trials, is

also nonsensical. Two jobs would still have

to be done by two people, whether they are

solicitors or barristers. Complicated cases

involving a number of witnesses, cannot be

both prepared and presented at the same

time by one person. The former requires

investigation, tracing of witnesses, taking

of statements, and getting them and their

exhibits to court: the latter requires learning

and marshalling the facts, being up to date on

the law and planning and delivering effective

advocacy. Furthermore, a solicitor running

a business cannot suddenly drop work that

he is doing to run off to court to present

someone else’s case: and adjournments due

to the unavailability of the advocate are very

expensive to the system and harmful to the

representation and standing of the firm.

Thirdly, “in-house” barristers employed by

a solicitor’s firm (or even by a government

organisation) to carry out advocacy alone,

sometimes face another problem. The

employer requires him (or her) to do a certain

amount of work in a certain way within a

certain time as a dedicated fee-earner, and

having in mind the loyalty to his firm (and

his job), the barrister has to comply. The

self-employed barrister, on the other hand,

owes allegiance to his client and to the court:

he owes no professional allegiance to an

employer telling him what action would be

in the best interests of the firm, nor does

he have to concern himself with whether

his employer is making enough money or

has available the required resources. His

independence and commitment to his client,

is of paramount importance to the integrity of

our unique system of justice.

Fourthly, you would not want your family

doctor, or another doctor in the same general

medical practice, to carry out your brain

surgery, and you would want an independent

consultant, skilled through experience in

his chosen field of work, to advise on the

prognosis of a complicated illness: the self-

employed barrister similarly provides the

independent expertise. Like surgeons and

medical consultants, barristers are trained

specialists particularly skilled at performing

their tasks. They are not allowed to take work

that they are not equipped to perform. They

have to undergo continuing legal education.

They are ceaselessly monitored by judges,

instructing solicitors and their colleagues.

So, fifthly, one very important advantage of

the dual profession is that everyone charged

with crime, however lowly his condition, can

have access to the finest defenders practising

at the Bar. He does not have to be represented

at court by a member of the solicitors firm:

he can select from the ranks of available

counsel at large. A fused profession would

hardly be able to avail itself of that degree

of choice.

Sixthly, in the real legal world of increasing

volumes of paper-work and of the appeal

court’s relentless changes to complicated law,

the judges, in order to conduct their cases

as speedily as possible, have to rely on both

the experience and the integrity of the Bar.

Inexperienced in-house part-time advocates

inevitably slow the administration of justice

and add to its expense. There is already

plenty of anecdotal evidence that all is not

well with criminal trials where the accused

is represented by an inexperienced solicitor

advocate.

Seventhly, our judiciary has earned

a reputation over the years for being

independently-minded and not beholden in

any way to the wishes of its paymaster, the

State. Much of that tradition of independence

stems from the fact that the higher judiciary

has always been drawn – and is still mostly

drawn- from members of the independent

and highly trained Bar. That is not to say that

judges chosen from solicitors or the employed

Bar are not capable of independence, of

course they are: but life teaches us that it

may be difficult to live down a life-time of

obedience to a superior’s wishes.

It is surely clear that these many

advantages of our present dual

profession of the law have immense

value – not just for the integrity and

efficiency of the criminal justice

system, but also for the important

perception of it as being fair, by those

who have to use it and submit to its

judgements.

The public impression, carefully fostered by

some of the media, is that barristers are all

“fat cats” with their snouts in the trough.

Nothing could be further from the truth,

for the publicly-funded Bar. And if more

and more young barristers, with their high

student loans to repay, and their already

hopelessly inadequate legal-aid fees, halved

by their overheads of clerks fees, chambers

rent, pensions, insurances, travel costs,

hotels, books, and equipment, are driven

away from the self-employed Bar to work

as full-time employees, the British criminal

justice system, and its reputation in the world

for independence, will suffer. If more senior

barristers are driven into accepting employed

status for the sake of their economic security,

the situation will be even worse.

It is quite obvious that the public, the

government, members of Parliament and the

civil service, who between them guide our

futures, have little idea of how much would

be lost by “fusion”. That is because there has

been no public debate: we just seem to be

drifting very quickly in that direction.

I can say, with the experience of 23 years in

Parliament, that those who have power over

us do not always wish to have contentious

matters brought into the open for public

discussion. Certainly those of our masters

who are enthusiastic for “fusion”, but who

have never mentioned the word in their

dealings over the legal-aid scheme, would

prefer to keep their silence.

All the more reason, for there to be a

public debate – and for that to start

immediately. Before the independence

which is the glory of the British

criminal justice system completely

disappears.

09the barrister

10 the barrister

course have been reviewed by no

fewer than four working parties,

each chaired by an eminent

judge, practitioner or academic: Bell (2005);

Neuberger (2007); Wilson (2008) and finally

Wood. The standards and quality of all BVCs

have, moreover, been monitored frequently,

via detailed annual reports from providers,

and by Bar Council (now BSB) appointed

external examiners and panels.

According to Wood, though, there remained …

“a gulf of misunderstanding….. between the

practising Bar and the BVC. The impression

persists among many practitioners that the

BVC is flawed in most or all of the ways

described (above)”

Faced with all this Wood’s approach was

robust, businesslike and fair, and its outcome

could best be characterised as “tough love”.

On the “tough” side are its recommendations

that:

• The BSB should introduce a

challenging aptitude test, covering analytical

and critical reasoning and fluency in written

and spoken English, which all those wanting

to take the course (to be re-styled as the “Bar

Professional Training Course”) from 2010

onwards will have to pass in order to qualify

for entry.

• The “knowledge areas” should be

tested by a combination of multiple choice

and “short answer” tests: the former set and

marked by the BSB; the latter set by the BSB

but marked by the providers

• The pass mark for these tests

should be raised to 65

• Those who fail these tests (or any

other “summative” assessment) should be

allowed only one re-take.

More loving are its conclusions that:

• Therationaleforthecourseremains

sound. Wood reaffirms that its “sole function

and purpose…..is to introduce prospective

barristers to the practical knowledge and

skills they will need to provide a high quality

professional service to their future clients”.

It therefore not only rejects the idea that the

course ought necessarily to be accredited

towards Masters level degrees, but warns

that, where particular providers decide that

it will do so, this “should not detract from

(its) essential character as a practical training

course for the profession”.

• Thecontentofthecourseislargely

fit for purpose (though it recommends the

introduction of a new compulsory module on

Resolution of Disputes out of Court and that

Professional Ethics and Conduct should be

separately taught and assessed).

• The quality of teaching and other

resources are satisfactory

• The academic entry threshold

should remain at a 2(ii) degree. However this

has to be set in the context of the new aptitude

test, and the removal of any BSB discretion to

allow students who have not obtained a 2(ii)

to take the course.

Taken as a whole it is a formidable

achievement and a great credit to the working

group which conducted the review and the

small BSB team which supported it.

It manages to distinguish between concerns

which are real, provable and serious;

and those which are based on prejudice,

misguided aspiration, or hearsay; or which

simply reflect the “gulf of misunderstanding”

noted above

Its recommendations are commensurately

measured, sensible and convincing. They are

consistent with both the proper educational

aims and objectives of a vocational stage

programme for the Bar; and with the

profession’s responsibilities to ensure the

widest possible access and diversity.

It was completed in a remarkably quick time

and this despite its having included a specially

commissioned survey among students taking

the BVC. All stakeholders were thus spared

the blight, analysis paralysis and consultation

constipation which afflicted the Legal Practice

Course over the seven or so years that it took

the Law Society to complete the Training

Framework Review.

It has therefore strengthened the BSB’s claim

to be an effective and independent regulator,

- something which will almost certainly be

of great benefit to the Bar after the Legal

Services Authority starts work on 1 January

2009.

On the other hand, though, there are, of

course, limits to what a review of this kind,

and at this stage in the history of the BVC and

the Bar itself, could possibly have achieved.

Firstly, Wood notes that “(w)e have the

impression that the profession has become

disengaged from the course which trains its

recruits….In truth the course should belong

to the profession as much as it belongs to the

providers. If practitioners were more willing

to take responsibility for it they would, we

suggest, be more satisfied with it and there

would be fewer complaints”. Some of the

review’s key recommendations anticipate

and will require a significant level of active

support from the practising bar. This cannot

be guaranteed, and it remains to be seen to

what extent it will be forthcoming.

Secondly, there can be little doubt that over

the next few years there will be severe

pressures on the profession as a whole, but

most especially on the junior bar, and thus the

availability of tenancies and pupillages. These

will come from a number of directions: the

Carter reforms (and the further restrictions

on public expenditure, which are inevitable

from 2010 or so onwards); the Legal Services

Act, and the general economic climate.

Solicitors and others (including CPS

caseworkers) could well undertake an

increasing proportion of advocacy in the

lower courts, while an increasing proportion

of qualified barristers could be working

from “Legal Disciplinary Partnerships” or

“Alternative Business Structures” and the

profession’s centre of gravity could shift

markedly from independent to employed

practice.

In these circumstances, it seems almost

inevitable that in the not-too-far-distant

future the Bar will once again have to

review its “vocational stage” training, and

perhaps even to consider whether a separate

vocational stage for barristers and solicitors

is any longer justifiable.

In the meantime, however, Wood has provided

a clear, sound route map for the BVC’s further

development; has (probably) enabled it to a

period of relative (and much needed) stability;

and has given key stakeholders (most notably

students and practising barristers) as much

reassurance as to is standards and fitness for

purpose as they could reasonably expect.

Richard de Friend

Chair Academic Board

Senior Academic Registrar

Director College of Law Bloomsbury

11the barrister

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12 the barrister 13the barrister

Legal globalization: an expanding pictureWhile the picture might be expanding, is a uniformity of legal practices spreading, thereby contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue our investigation into legal globalization and consider in particular the effect different jurisdictions are having on each other.

By Alistair King of Justis Publishing

Leaving a slight, almost imperceptible but presumably deliberate comic pause in the phrase “dreadlocks and their… liking of cannabis,” Lord Bingham described just two of

the many aspects of multiculturalism and multi-nationalism that have challenged but often enriched British law and its evolution over the decades and centuries.

In this case it was Rastafarianism but, as he went on to illustrate in his keynote address at November’s Bar Conference, there are numerous examples from our long and sometimes inglorious history, from 1290’s edict to Jews that they should “change or go home” to twentieth-century debates on whether Sikh men should be exempt from crash helmet laws and workplace uniform regulations.

Like the English language itself, English law has evolved and – to an increasing extent, the meaning of which I hope will become clear – devolved. Diverging away from other nations’ legal systems in the Middle Ages, it then put itself about in the Eighteenth and Nineteenth Centuries as its British masters set upon their attempt to colonize the planet. Other European colonial powers were no different.

So has their influence effectively brought about a new convergence of laws and legal practices? And what’s the state of play in a Twenty-first Century dominated by the threats and opportunities presented by emerging economies?

Bordering on agreement?

In the last issue of this journal we looked at the globalization of the law from a practice area point of view. Establishing the germs of a consensus in the academic and professional community, we showed how different areas of commercial law, and even family and criminal law, were influencing practitioners’ work across the globe. Though we won’t depart from further consideration of those different areas of work, in this issue we will also expand on the jurisdictional dimension of the story.

We investigate, among other things, how global trade might have made it inevitable

that laws come together; how the internet has influenced the process; if some legal systems are insurmountably incompatible; and we continue to consider how the phenomenon is affecting people’s work, their research and the type of material they need to access.

An LPC graduate with experience in practice, Rory Campbell has worked in Justis Publishing’s editorial department since 2001. Now its manager, he overseas the detailed and discerning process of putting raw law reports and legislation through the electronic mill. Ensuring that they are intuitively searchable, cross-referenced, indexed and compatible with expected legal terminology, his early days were focused on the law reports of the constituent parts of the UK.

Despite significant jurisdictional expansion at the company, both in its provision of full-text case reports and in its development of the provider-neutral JustCite citator, UK cases remain an important part of Campbell’s job. What’s changed, he says, is that in the past four or five years he’s seen a “dramatic and tangible increase” in the number of foreign cases that are being cited in our courts. The internet, he tentatively suggests, might even be the cause of this increase, not just the solution to accessing this material.

When in Rome

The World Wide Web, it has to be said, had less impact on the propagation of Roman law at the time. But in recognition of its historical significance, we should have a quick look at this ancient jurisdiction.

A specialist in comparative legal history and Roman law, Andrew Lewis is a professor at University College London. Though his institution subscribes to them, Justis and JustCite – which go back to 1163 – sadly cannot boast case law from the First Century AD, the era we discuss. But, perhaps surprisingly, with statutes being “few and far between,” some of the methods by which the remarkably sophisticated Roman legal system operated bore some resemblance to our own. Though case law precedent was not authoritative, jurist advice – like common law decisions – was used to build up the law.

Lewis highlights the variety of officials that

would have presided in court. Each with a different level of authority and powers of enforcement, the areas of law they dealt with and the representatives they gave audience to are analogous to today – an example Lewis cites is that of a merchant supplying corn from Africa to Rome and the associated legal wrangling. Containing the fullest statement of the law, “the codification of Justinian in the Sixth Century preserved the writings of earlier jurists,” says Lewis, while reports survive from provinces such as Egypt. But, inevitably, much of it has been lost.

So what have the Romans ever done for us? “On the continent the whole structure and language of private law is deeply permeated with Roman ideas,” says Lewis. “Though it’s been less influenced than other European systems, Roman law has influenced English law too, particularly the law of contract,” he adds.

How does the British Empire compare in its lasting effect on the world?

Never the twain shall meet?

Isam Salah is an American lawyer. A partner at multinational law firm King & Spalding, he operates jointly in the company’s New York and Dubai offices and is head of its Islamic Finance practice. Many of his transactions involve enabling his Middle Eastern clients to adhere to their Sharia principles, while operating in an essentially Western legal setup. Local laws operate in countries such as the UAE, Saudi Arabia and Kuwait, Salah says, but these have been influenced over the years by the likes of Ancient Egypt, Napoleon and, of course, the British. And it’s the British – or rather English – system that Salah says has become the “law of choice,” at least in the commercial world where parties can effectively choose which jurisdiction’s contract laws to use.

But what of the legal compatibility of Sharia and Western law? Well, they’re not quite as mutually exclusive as some tabloid leader writers would have us believe. Putting aside criminal law, where one must consider not just how crimes are treated but what’s actually classed as a crime in the first place, commercial law can be adapted quite easily. A basic tenet of Sharia is that one can neither

pay nor receive interest. This would appear to preclude strict Muslims from obtaining mortgages. And this is the case. However, contracts that are effectively the same as mortgages can be drawn up. Though “substantively different,” Salah explains that they are economically equivalent, even though some of the burden of risk is assumed by the “lender”, who buys a commercial property, for example, and then leases it to the buyer for a period until they’ve paid back an appropriate amount to acquire full ownership.

Without doubt big differences still stand but the trend – if slow – is one of moving towards a gradual compromise.

The application of international court decisions

Salah’s company now subscribes to the International Law Reports Online, which Justis Publishing launched in November. The only publication in the world wholly devoted to the regular and systematic reporting in English of decisions of the international courts, these fully searchable reports stretch back to 1919.

Covering all significant cases of public international law and dealing with such topics as treaties, war, terrorism and refugees, they are crucial for litigators practising in the international courts.

However, rulings from these courts are also creeping into numerous countries’ national courts as persuasive precedent – a point not lost on Mark Muller QC. A senior barrister at JustCite-subscribing Garden Court Chambers in London, Muller was on the five-year-long “Access to Justice in Afghanistan Project”. For his unpaid work on this he, and the rest of the four-person team, won the recent Bar Pro Bono Awards, presented by our man Bingham following his aforementioned speech.

Muller explains that under the UK’s Terrorism Act (2000), it’s very easy to ascribe charges of terrorism to the activities of any number of pressure groups around the world. Preparation for such cases, he says, requires much consideration of comparative and international law. Muller allows that tensions can arise as British courts are often loath to accept international law. However, the “arguments are being raised, even if they’re not [necessarily] accepted.”

Time will tell how many decisions are followed at a national level. Given the global political and economic upheavals we’re going through, my hunch is that it will be a significant proportion. Proof, perhaps, will be offered by JustCite, which from later this year will index and cross-reference the International Law Reports against national cases and journal articles from an expanding

range of jurisdictions, currently including England, Scotland, Ireland, Australia, Canada and Singapore.

Of course in the international courts themselves there’s no debate on their admissibility.

Professor David J. Bederman lectures in public international law at Emory University Law School in Atlanta. “I mix teaching with advising in private,” he says, and he is “often called upon for the Appellate Bar and US Supreme Court.” It was while litigating at the latter on the issue of foreign sovereignty immunity that he successfully cited a case from the International Law Reports.

But here’s the rub: this was before their digitization, so Bederman had to rely on the hard copies. “I didn’t begrudge going through them book by book, index by index, because we won the case,” he says, “but I’ll sure be glad in the future that you can do intelligent Boolean searches and get the same results.” Now, of course, he can.

So why should a law firm subscribe? “Because they could save an associate 27 hours in a case where it matters” is Bederman’s analysis, based on his estimate that the “25 to 30 hours I spent going through volume after volume” would be reduced by an “order of magnitude”.

Continental divide: closing the gap

Legal research isn’t all about time-saving but it certainly helps, particularly if your area of law is influenced by recent European legislation and there’s precious little domestic precedent on which to support your arguments in court. In many branches of commercial law, particularly intellectual property and competition law, this is all too often the case – and English courts are beginning to recognize this, with many of them allowing precedent from other European national courts.

Such a problem arose for Jane Wessel, a litigating solicitor at London law firm Crowell & Moring. Last year she represented a company who claimed to have been overcharged by a carbon brush manufacturer that was found to have been part of a Europe-wide price-fixing cartel.

Seeking damages for her client through the English courts, Wessel didn’t at the time have access to Caselex, a new service distributed by Justis Publishing that solves the problem of easy access to other member states’ national court decisions by providing a searchable database of case summaries in English.

Wessel eventually found the European cases she needed to fight her corner but Caselex, to which she has since subscribed, could have made things much simpler.

“Previously I used the European Commission website to search for cases,” she says, “but you can’t enter a search and scan through to see whether you need to refine it for future searches.”

However, she adds, with Caselex "...competition law, appeals, cases on jurisdiction under the Brussels regulation... it’s all so easy to find, so you’re confident that you’ve completed your search.”

Orient hearing

So what of the future? One of the big questions is China. In the aftermath of the Cultural Revolution, the country had effectively no legal system. Britain’s China Law Council was set up by the Bar Council and Law Society in the late 1980s to provide practical training in the UK for a fledgling base of Chinese lawyers. Still continuing that drive, the council also provides a network for practitioners to exchange ideas and pursue opportunities in both countries.

Adrian Hughes QC of 39 Essex Street Chambers is the Bar’s joint Chairman of the council. “The industrial powerhouse may have a newly developing legal system but it has a 1,500-year tradition of mediation compared to our more recent adoption over the last 20 years,” says Hughes, so it’s a two-way educative process. “In the past five or 10 years, our mutual collaboration has been viewed by practitioners as increasingly relevant to both sides,” he adds.

Though its legal system is codified, the Chinese government has a strong commitment to law reporting. And the decisions of its courts are becoming of increasing interest to Western courts. A new database, iSinoLaw, has sprung up to cater for this and the concept is met with enthusiasm by Hughes. But, as we won’t do justice to the service – or to Chinese law itself – in the penultimate paragraph of this short article, we’ll have to save expansion on this for another day.

And for the closing paragraph itself? Well, the argument must remain moot. A New World Order of Law remains a distant dream (or nightmare); but frequent use of other jurisdictions’ arguments and systems could soon be the norm.

• Before joining Justis Publishing,Alistair King was a journalist for Building magazine. This followed time with academic publishers Routledge and Pickering & Chatto. Along with The Barrister, he has written for the Student Law Review, Your Witness and the Australian Law Librarian, and he has collaborated with the Irish Times. Articles from these – and more – can be read at www.justis.com and www.justcite.com.

14 the barrister

A new era dawns: Are we awake?Andrew Butler, Barrister at Tanfield Chambers, considers the arrival of the Legal Services Act and what this means for how barristers should market their expertise, and reviews his chambers’ experience so far in embracing the new era.

The Legal Services Act 2007

Among the regulatory

objectives of the Legal

Services Act 2007 is the

need to improve access

to justice, protect and

promote the interests of

the consumer and encourage an independent,

strong, diverse and effective legal profession.

The aim is clear: the Act seeks to encourage

change in the legal marketplace, but how,

as barristers, will this affect our profession?

Will it radically alter the relationship between

solicitor and barrister? Will we see barristers

working in partnerships? One change that

is already here is that of a more accessible

legal market for consumers through the

increasingly utilised means of Public Access.

As a result, the consumer will want easy

access to information on the track record

and expertise of the barrister – this must be

addressed. Are you listening at the back?

Public access to information

A Green Paper in 1987 suggested a change

in the traditional two-tier approach that

has always been adopted by the profession

in this country – i.e. a solicitor instructs a

barrister on behalf of the client. The rules

subsequently changed in 2004, allowing ‘the

public’ to approach and instruct barristers

directly for certain purposes. The traditional

role of the solicitor as intermediary has been

altered and in many cases the consumer will

be looking to appoint a barrister directly

resulting in an increasing public appetite

for on-demand interaction. Rather than

relying solely on solicitors’ advice, the

technologically aware consumers of the

21st century will seek out information on

barristers, enabling them to make educated

decisions about who their advocate should

be. The role of the solicitor is likely to remain

significant, aside from continuing to refer

their clients, they will continue to perform

essential tasks that barristers cannot, for

example, be engaged in, such as the general

management or administration of a client’s

affairs. Nevertheless, the point remains

that barristers can no longer solely rely

on solicitor-driven work as the consumer

embraces the notion of direct access. Whilst

maintaining the traditional alliance with

solicitors, the Bar should properly consider

the impact of online technology on consumer

buying habits.

The Internet has enabled consumers to be

increasingly savvy in making choices. An

incredible depth and breadth of information

available on the internet means that we all,

as consumers, make informed choices and,

as a result, simply disregard products if we

have no point of reference as to their success,

popularity, effectiveness etc. It is time for the

Bar to catch up with the trend that has been

set by other sectors and professions – we

need only look at insurance, travel, finance

and supermarkets to see how advanced the

process of information merchandising has

become.

Tanfield’s experience

Against this background, the departure in

August 2007 of our Chambers’ Director

seemed to me to be a cloud with a silver

lining. Capable though he was, losing him

provided an obvious opportunity to re-vamp

chambers’ marketing practices and maybe

bring in some external expertise. And, while

we were about it, why not have a look at our

old, tired website?

Of course, politely pushing for change in a

chambers meeting is, I imagine, a bit like

going out for a quiet drink in the days of press

gangs. I immediately found myself chairing

our Marketing Committee and meeting a

succession of web designers distinguishable

only by the varying levels of technical jargon

they employed. Eventually we resorted to the

tried and tested technique of asking the only

people whose language we could understand

– other barristers.

Thus settled on a reputable firm of legal PR

consultants, we commissioned them to audit

chambers, identify some “brand values”

and think how to accentuate and articulate

those values, making us as distinguishable

as possible. After all, weren’t we just another

collection of jobbing barristers striving to get

work? Not quite, it seems; the audit revealed

certain strengths and weaknesses which

most of us collectively recognised, while at

the same time never quite realising we had.

How to weave these brand values into a

website? For this, we retained the services

of a niche design company who produced

two “concepts” for us – both visually striking,

both fresh, both some way removed from

what one might often see when visiting

those of other chambers (when not dazzled

by one’s opponents’ terrifyingly impressive

credentials). We drew on aspects of both

concepts, and two weeks later we were

shown the result. The ability of the designers

to reflect our various wishes and preferences

was enlightening and impressive; I have

seldom seen a committee of barristers

reduced to such a state of reluctant, helpless

unanimity.

The next task was selling the result to the rest

of chambers, and for this purpose we held an

open afternoon for members to come and

inspect the site (at this stage just a succession

of PDFs) themselves. This of course was for

my benefit not theirs, an insurance policy

against later expressions of dissatisfaction,

and as a precaution I arranged it for a Friday

afternoon when I was in Court. It went

swimmingly; the designers said that those

who came along were cheerful, polite, to the

point, and obviously more interested in going

out for a drink!

Utilising yet a third set of professionals

to construct the site, we harmonised the

presentational side and the technical side.

The aim was to try to think really hard about

how our clients – not forgetting that this now

extends to the general public too - would

want to use our website, making it as easy as

possible for users to choose barristers by call,

experience and expertise, and highlighting

in a self-contained section those who are

prepared and qualified to accept Public

Access work. We also wanted accessible

images, with an element of wit and latitude;

I am particularly pleased that one member’s

dog basket (or technically, I should say, that

of his pet dog) will now adorn our pupillage

page, and that a bottle of champagne left

incongruously in a row of files introduces

forthcoming social events.

That left only the small task of collating the

members’ profiles and photographs. This

threw up a number of contentious issues (in

particular “But why can’t Diocesan Law have

its own Practice Group?” and “I’m not really

that fat, am I?”) but, by a combination of

cajoling, flattering, and threatening to write

them myself, they all seem to have got done.

Of course, the information that is available on

the website about an individual’s expertise

and experience is just as important as the

message that the site communicates about

the set as a whole. But, being part of a strong

brand will, however, naturally reinforce the

consumer’s feeling that they are looking at

the right person for the job.

The site has recently gone live and I leave

it to others to judge the results. All I hope

is that those solicitors whom our clerks

say they can hear down the phone tapping

away in search of the profile pages of those

being put forward for potential briefs will

be pleasantly surprised by what they find.

And the cost of all this (plus a vibrant media

promotions programme which now sees our

members obtaining media space like never

before)? About half the annual salary of our

former chambers director. No disrespect to

an excellent professional like him, but I think

it’s money well spent.

Don’t drop off

The main message, in my opinion, is that

solicitors and

barristers should

embrace the

change that the

Legal Services

Act 2007 will

and is already

bringing about.

Online technology

provides an

e x c e l l e n t

opportunity for

the Bar to promote

competition in

the provision of

services and to

encourage an

i n d e p e n d e n t ,

strong, diverse

and effective legal

profession – let’s

use it effectively.

Solicitors will

continue to

instruct barristers

but advances in how the consumer can

obtain information about services on offer

means that the Bar must respond accordingly

so that they can in fact reap the benefits

of change rather than shying away from

it. There is no denying that consumers are

becoming increasingly reliant on online

technology to help them make their decisions

– whether it be in their choice of insurance

provider, supermarket or indeed, legal

expert. Therefore, as service providers, we

need to ensure that the volume and quality of

information about the service we provide is

in line with the requirements of the consumer

so that they can ultimately make an informed

choice.

Andrew Butler, Tanfield Chambers

www.tanfieldchambers.co.uk

31 Dugdale Hill Lane, Potters Bar, Herts EN6 2DPT: 01707 850969 www.bradish.co.uk mail@bradish.co.uk

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15the barrister

Enhancing the Participation of Children in Family ProceedingsThe issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate.

By Nicholas Crichton, District Judge, sitting at the Inner London Family Proceedings Court

Would you want important decisions to be taken in your life without being consulted? Even if somebody talked to you

beforehand and undertook to report your wishes and feelings to the person charged with the responsibility for making the decision, might you want to meet that person to make sure that they truly understand how you are feeling? Children have views about what they want to happen in their lives – why should we not give them the opportunity to make a connection with the person who will be making important decisions for them?

Put simply, Article 12 of the United Nations Convention on the Rights of the Child states that a child has a right to have an opinion, to have that opinion listened to, and to have it taken seriously; and specifically to be provided the opportunity to be heard in any judicial proceedings affecting him, directly or through a representative.

The issue of whether or not children should have the opportunity to play a greater part in proceedings where decisions will be made which will affect the rest of their lives is becoming the subject of increasing debate. In their research published in “Your Shout” and “Your Shout Too” the NSPCC established that a significant number of children involved in public law proceedings would like to have had an opportunity to go to court; and that of those who did in fact go to court an even greater number felt that they received insufficient support and were not listened to; and that a larger number of children involved in private law proceedings would have liked an opportunity to go to court and speak to the judge. One of the most concerning findings was that some children had not felt listened to properly by Cafcass.

In Mabon v Mabon [2005] 2 FLR 1011 Lord Justice Thorpe and Lord Justice Wall reviewed and referred to the benefit of the “tandem model” of representation of children in the English courts. Lord Justice Thorpe went on to say that –

“it was simply unthinkable to

exclude young men aged [17, 15 and 13] from knowledge of and participation in legal proceedings that affected them so fundamentally”.

Lord Justice Wall referred to “the reluctance of the English Judge to talk to children in private” and said that –

“from the boys’ perspective it was simply impossible for the guardian to advance their views or represent them in the proceedings. He would, no doubt, faithfully report to the judge what the boys were saying, but the case he would be advancing to the judge on their behalf would be (or was likely to be) directly opposed to what the boys were actually saying”.

In Re W (Leave to Remove) [2008] 2 FLR 1170 Lord Justice Thorpe spoke of the participation of children as being a matter of particular topical concern. The three judges of the Court of Appeal in that case had differing views about whether the children in that case should have met with the judge who decided their case, and at what point.

In his address to the UK Association of Women Judges at their Annual Conference in March 2006 the President said -

“The question of the involvement of children in decision making and the representation of their rights and interests in both public and private law proceedings enjoys a higher policy and public profile that at almost any other time in our recent history”.

He went on to say –

“ … it is my view that, in an effort to ensure the welfare and happiness of children, and to listen to their voice first hand, we should be encouraging judges to talk in private to children who wish to do so, trusting the judge to retail the burden of his concerns or any changed perception having heard the child, whilst respecting the confidence of the child in sensitive areas”.

In the May 2008 edition of Family Law the Voice of the Child Sub-Group of the Family

Justice Council published a paper ‘Enhancing the Participation of Children and Young People in Family Proceedings - Starting the Debate’. In fact, the debate was started at an event held at Inner Temple Hall on 20th October. Approximately 150 attended. The event was chaired by the President, Sir Mark Potter. There were presentations from two young people, one who had experienced public law proceedings and one who had experienced private law proceedings. Mr Justice Hedley and Anthony Douglas (Chief Executive of Cafcass) spoke for greater involvement of young people. Anthony Hayden QC and Alistair Paddle, (former chair of NAGLRO) argued for a more cautious approach. A distinguished panel which included Mr Justice McFarlane and Lucy Theis QC, Chair of the FLBA, then took questions from the floor. Highlights of the debate can be heard on a pod cast which can be found on the FJC website at www.family-justice-council.org.uk. An edited typescript of the debate is also available on the Council’s website. The FJC has received some extremely helpful responses from various quarters. It is hoped to publish a summary of those responses in early in 2009.

The Voice of the Child Sub-Group does not suggest that all children should attend court. Nor do they suggest that those who do attend court should be giving evidence, except in very rare cases. Their wishes and feelings are properly established by trained and skilled professionals away from the court and presented to the court in written form. However, as the NSPCC research demonstrates, there are a significant number of children who feel excluded from the decision-making process and who would like to have a greater connection with that process. In order to establish that connection they need to be provided with age-appropriate information to enable them to understand the process and the role which they might play. They need to have it explained that whilst their wishes and feelings are important, they are not necessarily determinative. When I see children in my court I make it clear that we cannot have secrets from their parents and the other parties in court; and that judges have rules – they are required to take a number of different things into account,

just one of which is their wishes and feelings. It is my experience that children have little difficulty in understanding such basic rules.

Of course there are challenges –

• we have constantly to balance the Human Rights issues against welfare issues;• there is a significant difference in assessing the needs and assessing the wishes and feelings of children in private law compared with public law; • if a child expresses an interest in seeing the judge, there needs to be discussion as to how this need may be met – the Enhancement paper already referred to raises various possibilities.

It is my personal belief that Cafcass officers should routinely discuss with children and young people of an appropriate age and understanding whether or not they would wish to meet with the judge, at the same time explaining that not all judges will be willing to see them. In my view, and in the view of the Sub-Group, judges should not be reluctant to meet them. Many judges like to have a photograph of the child in order to give a face to the person for whom they are making a decision – better still, surely, to meet in

person? It needs to be stressed that the object of the child meeting the judge is not to assist the judge but rather to assist the child. There are many ways in which this can be achieved. It is rarely appropriate for the judge to see the child in the presence of parents or other parties. He can see the child in his chambers or in the courtroom. He should do so in the presence of another professional such as the Cafcass Officer, the child’s solicitor, the court associate or legal adviser. It is my practice to agree a note of what was said which can then be shared with the other parties.

Some will find it easier than others to talk to children. Guidance and training needs to be introduced to assist judges in communicating appropriately with children, which would be of benefit to all. The members of the sub-group would like to think that ten or fifteen years from now judges will be routinely seeing those children who wish to see them. Of course, some children may prefer the decision to be made without meeting the judge. What is important is that the alternatives are discussed with the child and that he should be given the choice. This means providing the child with the information to enable him to understand the whole process

and then discussing it with him in order to establish how best to meet his individual needs. Involvement is empowering, even if it results in the child declining to take part. Empowerment increases confidence and self-esteem. Refusal to meet a child who wants to meet the judge lowers confidence and self-esteem.

I started this article by posing some questions. I conclude by posing another – should judges be making these sorts of decisions if they are unwilling to meet the people they most affect and sometimes, in appropriate circumstances, to explain their decisions to them?

Note: in this article “children” should be taken to include young people; and “judges” should be taken to include magistrates sitting in the family proceedings court.

Nicholas Crichton is a District Judge, sitting at the Inner London Family Proceedings Court, a member of the Family Justice Council and the Chair of the Council’s Voice of the Child Sub-Group.

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Public Inquiries - do they really work?By Ann Alexander, formerly Senior Partner of national clinical negligence law firm Alexander Harris

Barely a week goes by

without fresh calls for a

public inquiry of some

kind. Whether these

calls arise from the

Lockerbie and Omagh

bombings or the circumstances surrounding

the recent death of a young student in Leeds,

public inquiries are seen as being the most

effective way of investigating major tragedy

so that lessons will be learned and change

will happen. After all, it is well known that

following such an event, grieving families

are intent upon discovering the truth behind

what has happened and most importantly

want to make sure that change is effected

so that no-one else will have to go through a

similar experience.

In recent years there have been many

examples of major organisations who have

failed to carry out their responsibilities,

whether they are substantial companies or

government agencies, and often the result of

those failings is catastrophic human tragedy.

In the health care arena, for example, one

only has to ask why so many babies died in

the cardiac unit at the Bristol Royal Infirmary

between 1988 and 1995 and how Harold

Shipman, the general practitioner from

Hyde, Cheshire managed to kill so many of

his patients throughout his career without

arousing suspicion?

“Families call for public inquiry” – an all too

familiar headline following such a tragedy

but do those families actually know what they

are asking for? Michaela Willis’ 7 day old son

Daniel was one of the 29 babies who died at

Bristol. She chaired the Bristol Children’s

Heart Action Group and recently told me that

they didn’t know what one was. Neither did

the Shipman families when they approached

me for advice about how they might have

such an inquiry after his criminal trial. But

these families know that they want answers,

and for the truth to be revealed in a totally

independent forum. And most importantly

they want complete transparency – for that

search for the truth to be conducted in public

with the media present to report on the

evidence being given so that all the details

will be exposed and nothing can be hidden

away behind closed doors. After all, in spite

of a lengthy legal battle which went to the

Court of Appeal, the parents of the children

killed and injured by nurse Beverly Allitt in

Grantham had to settle for an investigation in

private with little involvement for themselves

or for journalists. And today, nearly 15 years

later, many of those parents still don’t feel

that they know enough about what really

happened and why.

Whilst inevitably to some extent those

responsible will have been one or a handful

of individuals - after all it was Shipman

himself who killed his patients - it is the

exposure of failings in the systems which

is vital to identify where and how change

must take place and for the Inquiry to make

recommendations for change.

But that is all an Inquiry can do – make

recommendations. They are not the law. And

it is then up to government to decide whether

it accepts them and when and how to

implement them. And there lies the problem.

In a series of reports following the Shipman

Inquiry, Dame Janet Smith made hundreds

of recommendations for sweeping changes

across the systems in which general

practitioners operate to close all the loopholes

Shipman had exploited. Writing in her first

report published in 2002, Dame Janet said:

"I hope to be able to make recommendations

which will seek not only to ensure that a

doctor like Shipman would never again be

able to evade detection for so long, but also

to provide systems which the public will

understand and in which they will have well-

founded confidence."

But even though the government

formally accepted very many of those

recommendations, they have still not been

implemented. Recently, nearly four years

since the publication of Dame Janet’s sixth

and final report, a report from the Healthcare

Commission says more work is necessary

to ensure all concerns are picked up,

investigated and, where appropriate, action

is taken.

And this is by no means an isolated example.

There have been 70 public inquiries into

child abuse cases in England and Wales,

producing thousands of recommendations.

But that failed to prevent the death of 8-year-

old Victoria Climbié, which was itself followed

by another far reaching Inquiry under Lord

Laming.

A number of reasons might be put forward as

to why this might be the case. It is beyond the

brief of an Inquiry Chairman to make sure

something happens after his or her report is

published and government ministers who do

have that responsibility move departments.

In March 2006 when Harriet Harman M.P.

was Minister of State for Constitutional

Affairs she went to Hyde, Cheshire where

Shipman practised as a GP to talk to some of

the families about how her department was

implementing the changes to the Coroners

system but shortly afterwards she became

Deputy Leader of the Labour Party and she

had to pass the responsibility to someone

else. That is what civil servants are there for

but the families believe the impetus has been

lost and little has happened.

And is that good enough?

In the course of making a documentary

recently for Radio 4 about how such Inquiries

work,

I spoke to a number of people with

considerable experience of public inquiries

and I asked whether there needs to be a

change in the way in which the Inquiry

system operates.

Neil Garnham QC was Leading Counsel

at the Climbié Inquiry and told me that

there needs to be a follow-up process. That

process should, he says “call to account

the government departments or the local

authorities or whoever it is, to ensure that

they have done what has been expected of

them and that needs to be a refinement to the

process of some inquiries.”

The idea is supported by Richard Lissack QC,

who has been involved in nine inquiries and

is the editor of a forthcoming book on the

system. “It would be an extremely good idea

to build into the inquiry process the idea of

someone being charged with seeing through

the recommendations for change. This would

ensure “it doesn’t just sit on a shelf for six

years gathering an ever thicker collar of

dust.”

At present there is no procedure for anyone

to take responsibility for making the changes.

And of course because the media spotlight

has died down, there is regrettably an

assumption on the part of many that the

changes have in fact been implemented and

the failings have been fixed. There’s no doubt

that the process has a beneficial effect on

cultural change; it does inform the public.

And whilst it has to be up to government

to decide which recommendations it

accepts, what is the point in having a wholly

transparent Inquiry process if the shutters

then come tumbling down. How many more

avoidable tragedies will occur before a

rigorous mechanism is put in place to make

sure effective change is implemented? Until

that happens, institutional and systemic

failings will remain.

As Michaela Willis summed up, “It seems

ludicrous if you actually go through such a

lengthy process for the recommendations

then not to be acted upon.”

© Ann Alexander October 2008

The documentary which was broadcast as

part of the Analysis series for Radio 4 on the

30th October and 2nd November is available

to listen to at www.publicinquiries.co.uk. It

was researched, written and presented by

Ann Alexander and produced by Jim Frank.

Ann Alexander, formerly Senior Partner

of national clinical negligence law firm

Alexander Harris, has now retired from

full time legal practice and runs a media

and communications consultancy, working

in partnership with broadcaster Alistair

Macdonald as one half of Alexander Macdonald

(www.alexandermacdonald.co.uk)

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Study into local legal advice announced

The Ministry of Justice has announced a study into the funding and provision of local legal advice.

The government is keen to assess how recent legal aid reforms and any wider changes to the way in which local advice agencies are funded have affected the provision of services. The aim is to identify, bring together and analyse the available evidence across England and Wales.

Justice Minister Lord Bach has commissioned the study which will examine:

• the impact of the recession and the demand for civil legal advice

• the impact of civil legal advice fixed fees on local providers - financially and in terms of the type of work they are taking on

• the initial experience of Community Legal Advice Centres, including the impact on other providers in the area

• trends in funding from sources other than the Community Legal Service, including local authority funding, national lottery funding, charities, central government departments and others.

Lord Bach said:

'Legal aid is one of the fundamental elements underpinning the justice system and an important way of helping poorer members of the community. It enables access to justice for those who cannot afford to pay for legal advice and representation. The government aims to get the best value for money from the provision of these services, so that as many people as possible can be helped using the available resources.

'The need for legal advice in areas like housing and debt will inevitably increase in these difficult economic times and the government wants to be sure that the best use of existing resources is being made. This study will improve our understanding of how legal advice is delivered and funded at the local level and establish what further information we may need to inform future decisions.'

Law Society presses bankers to support solicitors On Thursday 04 December 2008 the Law Society started a series of meetings with all the major retail banks to explore how banks can help support solicitors through the recession.The president of the Law Society approached the banks and the British Bankers Association recently seeking an opportunity to explore the issues affecting solicitors' businesses in the credit crunch.

'We hope to develop a common understanding of our members' various business models and the factors affecting judgement of risk of lending so that we can encourage the banks to take a supportive approach to solicitors to help them through the downturn', says Des Hudson, Law Society chief executive.

'In these meetings we will discuss the extent of the current problem, the prognosis for the future and steps banks can take to minimise the impact on the profession. We would also like to agree to regular meetings to keep the situation under review.'

'This is one of a series of proactive steps the Society is taking very urgently to support solicitors in these challenging times and these are all set out at www.lawsociety.org.uk/survivingthedownturn. We are also reviewing the process and market for professional indemnity insurance with a view to avoiding in future the difficulties that many solicitors faced this year.'

This move follows the announcement of a first phase of a Law Society action plan which aims to assist solicitors in relation to their professional indemnity insurance (PII) renewals. A Law Society sub-group will be seeking expert advice on the insurance market to establish whether there are ways in which some of the difficulties that have been experienced this year can be alleviated for the future.

Solicitor’s appointment to senior judicial post sets example, says Law Society The Law Society has warmly welcomed the appointment of solicitor David Latham to the role of President of Employment Tribunals and says his appointment should set an example for the profession’s judicial ambitions.

Law Society President, Paul Marsh, says:

“We congratulate Mr Latham on his appointment to this senior judicial role and hope this fuels the aspirations of other solicitors to seek appointment to the bench. “Once the reserve of the Bar, the judiciary is gradually opening up. Mr Latham’s appointment is a giant step in that process.”

Mr Latham, 62, was admitted as a solicitor in 1971. He was appointed as a part-time Chairman of the Employment Tribunals in 1992, becoming a full-time Chairman in 1996, and then appointed as Regional Chairman in 2001. He was also appointed as Legal Chairman of the Reinstatement Committees and Umpires Panel in 1998 and of the Reserve Forces Appeal Tribunal in 2003.

Mr Latham replaces His Honour Judge Meeran who retired as President of Employment Tribunals (England and Wales) on 31 December 2008.

The Law Society has been a strong advocate for an independent and impartial system for judicial appointments. It continues to lobby on behalf of its members for improvements to both the underlying statutes and the selection process which could either deter or debar solicitors from applying for and attaining appointment as a judge.

The Law Society is working with the Judicial Appointments Commission, Master of the Rolls and the Lord Chief Justice to persuade senior partners to adopt a more positive attitude to colleagues considering a judicial appointment.

Paul Marsh says: “Mr Latham’s appointment is currently the exception to the rule, but I am convinced that senior solicitors with experience of managing major projects and cases would make ideal candidates for judicial appointment. However, they are just not putting themselves forward.

“In the contact that we have with senior partners in most cases there is a negative attitude to the idea of partners having time out of practice to sit on the bench. We want to change that mindset. Firms should regard the appointment of one of their solicitors to the bench as reflecting credit on their firms.”

Through its collaboration with the JAC the Law Society is working to open up the judiciary to solicitors, and in turn help to ensure the appointment of more women, disabled, black and ethnic minorities to the bench.

Paul Marsh says: “The appointments process must result in the best talent obtaining judicial positions, not only for the benefit of the courts system but most importantly of all for the society it serves.”

Clarifying IELTS test requirements for BVC students

All candidates, enrolling on the BVC from 2009, for whom English or Welsh is not their first language must demonstrate that they have attained a minimum 7.5 IELTS standard in all sections of the test.

You can apply for the BVC before completing the IELTS requirements. However, in order to enrol on the BVC with the Provider in the autumn of 2009 you are required to have sat and achieved 7.5 in all sections of the academic IELTS tests.

IBA launches e-magazine on International Criminal Court matters for lawyers In its continuing effort to encourage lawyers and bar associations to engage with the International Criminal Court (ICC), the International Bar Association (IBA) today launched a new e-magazine, 'EQ: Equality of Arms Review'. This important publication informs lawyers about the ICC’s work through a compilation of concise, thought-provoking articles on important developments at the Court. EQ will act as a valuable resource for lawyers worldwide. This e-magazine is to be published quarterly and subscription to it is free.

Among the many articles in this exciting new publication is an opinion piece by Justice Richard Goldstone (the former Chief prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda). Entitled ‘For Peace’s Sake: Should Justice Defer to Politics’, it critically assesses the implications of a possible UN Security Council deferral of an arrest warrant against Sudanese President Omar al-Bashir under Article 16 of the Rome Statute. In this regard Justice Goldstone states ‘an Article 16 deferral [by the Security Council], should it occur, will likely be heralded as a failure for justice against the might of politics’.

One unique purpose of EQ is to highlight specific issues faced by defendants and defence teams appearing before the ICC. In this regard, EQ’s first edition contains a special background feature on the defence team representing Thomas Lubanga, the ICC’s first accused. In a stimulating commentary entitled ‘Does the ICC matter to lawyers?’ lawyers worldwide are encouraged to engage fully with the ICC by signing up to the Court’s list of counsel. The magazine also includes insightful commentary on major issues currently faced by the Court, including: disclosure challenges in the Lubanga case, the confirmation of charges against Mathieu Ngudjolo Chui and Germain Katanga and the need for states to implement Rome Statute legislation into their national laws.

Mark Ellis, IBA Executive Director, comments, ‘The long term viability of the ICC depends on collaboration and support of the legal profession. Lawyers need timely information about key developments at the Court in a format that is quick, easy to read, yet comprehensive’. He adds, ‘EQ is an important resource that the IBA expects will increase knowledge and awareness about the ICC and act as an important bridge between the legal community and the Court.’

To read the first edition of EQ: Equality of Arms Review go to http://www.ibanet.org/images/downloads/hri/11_EQ_News_November_2008.pdf

Optional Protocol to the UN Convention for the Elimination of Discrimination Against Women Justice Minister Michael Wills has made a statement on the publication of an independent review of a protocol that allows women to take complaints directly to the United Nations if they believe their rights have been violated.

Minister of State, Ministry of Justice (Michael Wills):

The review of the experience of the United Kingdom under the Optional Protocol to the United Nations Convention for the Elimination of Discrimination Against Women (CEDAW) announced on 25 June 2007 by my Noble Friend Lord McKenzie of Luton has been concluded.

The CEDAW Optional Protocol allows women in the UK to submit complaints directly to the United Nations Committee for the Elimination of Discrimination Against Women if they feel that their rights have been violated. The government accepted the Optional Protocol to reaffirm our commitment to women's rights and gender equality, and to gain greater empirical evidence on the value of individual petition to the UN generally.

The review of CEDAW was carried out by Professor Jim Murdoch of Glasgow University School of Law.

Professor Murdoch finds that: *the CEDAW Optional Protocol has not yet provided women in the UK with real benefits

*non-governmental organisations in the UK have not used the Optional Protocol in advancing the cause of women

*the quality of the UN Committee's adjudication on admissibility of complaints can appear inconsistent.

Government expenditure on cases involving the UK has been calculated at just over £4,000 per case.

Professor Murdoch's findings suggest that the first three years have not provided sufficient empirical evidence to decide either way on the value of other individual complaint mechanisms. We will need further evidence, over a longer period, to establish what the practical benefits are. In the meantime, the government will consider the merits of other individual complaints mechanisms on a case-by-case basis.

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Consultations on payment of Crown Court defence costs

The Ministry of Justice (MoJ) and the LSC have issued two important new consultation papers on Crown Court means testing and the award of costs from Central Funds. A number of controversial changes are proposed.

These include:*those who fail to apply for legal aid in Crown Court cases could no longer be eligible for Central Funds payments if acquitted

*consideration of whether those who fail the Interests of Justice test in Magistrates’ Court cases, but subsequently obtain legal advice and/or representation, should no longer be able to claim back their costs from Central Funds

*capping Central Funds payments in all cases for acquitted defendants, including companies, to the relevant legal aid rates

The Law Society will be seeking the views of the profession and will be submitting detailed responses to both consultation papers.

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22 the barrister 23the barrister

Financial Irregularity and Criminal and Civil Redress in the City In November 2008, at its Annual General Meeting, Napo, the Probation Union, called for an investigation into speculation and City dealings to ascertain whether there had been any criminal activity or behaviour or any evidence of recklessness or negligence.

By Harry Fletcher, Assistant General Secretary, NAPO

financial institutions. It has found that there

are a wide range of readily available powers

for the Government to draw upon to address

this problem.

The Sentencing Advisory Panel, which was set

up by this government offers some guidance.

They say that the highest level of criminal

culpability is where there is intention to

cause harm. The lowest level is where the

individual is proved to be negligent. The

panel describe two other levels, first where

there is recklessness with regard to whether

any harm is caused and secondly whether

there is a knowledge of specific risks entailed

in certain actions without intention to cause

harm. Napo believes that this advisory

framework should be examined by any

investigation to determine whether existing

sanctions can be applied or new sanctions

are required.

Napo believes that the Inquiry should be

carried out by a body deemed appropriate

by government, which could be the Financial

Services Authority, Ombudsman, the Home

Office, or Justice Select Committee or, if

necessary, the Crown Prosecution Service.

The Inquiry should establish whether there

is a prima facie case for prosecutions to be

brought against individuals or corporations

under the existing criminal law or civil action

in case of possible neglect.

The Inquiry would also establish if any new

legislation is needed to deal with recklessness

or other criminal behaviour. The Inquiry

could examine the nature of any risk taking

which could have compromised public

finances. Any sanctions which might be

drafted could be based on existing legislation

which covers recklessness and criminal

damage.

The Inquiry could examine whether any

recent financial activity was anti-social in

that it caused individuals or groups alarm or

distress. Any sanctions could be based on

existing legislation such as that covering anti-

social behaviour orders or curfews.

Activity deemed reckless could also lead

to perpetrators being required to sign

acceptable behaviour contracts instructing

them to act properly and responsibly in

financial affairs. They would be similar to

those used with young people who have

acted irresponsibly.

The Inquiry could consider possible penalties

if misdemeanours were proved. These

might involve fines or compensation orders

in civil litigation. The Inquiry could consider

imposing prohibition orders in respect of

trading if reckless or criminal activity or

intent were proved. Such an order would

prevent an individual from being involved

in any speculative financial behaviour if it

was proved that their previous actions had

caused individuals alarm or distress. The

Inquiry could consider whether powers were

needed to seize any profits from proven

reckless dealing which had compromised tax

payers’ funds. Such legislation could draw

on existing laws dealing with powers to

confiscate the proceeds of crime.

If reckless behaviour was very serious

individuals could be banned if the Inquiry

thought fit from further commercial dealing

for a specified period of time.

The government has created 3,600 new

criminal offences since June 1997 in 55

Criminal Justice Statutes. It is indeed

unfortunate that few if any of these sanctions

might be applied in the current financial

circumstances.

Napo believes that the principles behind the

sanctions introduced to control anti-social

and criminal behaviour could be applied in

the circumstances outlined above. It is highly

unlikely that speculators deliberately try to

cause harm but in certain instances there

may be evidence of total disregard towards

whether harm is caused or not, and certainly

harm has been a consequence of many of

the actions.

Young people involved in anti-social behaviour

in our communities are now frequently made

the subject of Anti-Social Behaviour Orders.

In effect the court tells them not to do it again.

Others are prohibited from associating with

certain individuals or going to certain places.

Surely the government could consider orders

which told the speculators not to be involved

in that behaviour again, or which prohibited

them from working in financial institutions

for a set period of time, or which prevented

them from associating with individuals who

have behaved recklessly in the past.

The union, however, is realistic. It is highly

unlikely that any of these actions will ever

be taken, and once again those who are in

a position of privilege and behave recklessly

are immune from the civil and criminal

consequences.

Harry Fletcher

Assistant General Secretary

Napo demanded

that any evidence

should be properly

tested. If criminal

activity is proved

then individuals and

institutions should be dealt with by the full

force of the law, and consideration should

be given to the possibility of new laws being

introduced to cover reckless behaviour.

In his opening address to the conference,

National Chair, Mike McClelland asked the

question “who is it in society that creates

the most pain and harm? Is it those who

we traditionally brand offenders, and with

whom the Probation Service engages in an

attempt to redirect them away from crime,

or is it bankers, spivs and speculators whose

greed ultimately seems to threat the stability

of whole economies and the well being of

millions of citizens. Who are the villains and

criminals now?”

Over the last period, many members of the

public and both national and local politicians

have expressed concern that certain

individuals in our banking and financial

institutions, who have been responsible

for causing or contributing to the current

economic crisis facing our country, appear

to be able to walk away from the damage

that they have caused with impunity. Yet the

same individuals have often received record

bonuses, whilst taxpayers in the community

have seen their pension funds seriously

eroded and their savings put in jeopardy.

This offends against a sense of justice

and fairness within the wider community,

especially since it is the taxpayer who has

had to pay for the bail-out of the banks

and many people are expected to lose their

jobs, and even their homes, as a result of

what many commentators have described

as reckless behaviour within our financial

institutions.

As Labour MP, and Secretary of the cross-

Party Justice Unions Parliamentary Group

said, following emergency talks between the

Government, Bank of England and Financial

Services Authority on the crisis in the British

banking sector in mid-October:

"Yet again the taxpayer is being asked to pay

for the mistakes of the bankers with next to

nothing in return. The Government is set to

throw £50 billion of taxpayers' money at the

banking sector's failures. I believe that the

Government should nationalise to stabilise

the banks. At a minimum the Government

must place conditions on any bail out

including full public and parliamentary

scrutiny of the banks' accounts”

Since October 2008 it is clear that this activity

will exacerbate the effects of the recession.

Indeed, hundreds of bank employees, who

are not responsible for the speculation, seem

set to lose their jobs as a consequence of the

catastrophe and bail-out.

Questions have been raised over whether

there are any forms of redress presently

available to the Government to bring some

of the individuals to book for their behaviour.

Napo represents those professionals who

have been given the responsibility by the

Government for implementing laws and

policies introduced to tackle behaviour which

has caused harm to society.

During the last ten years the government

had introduced ASBOs, curfews, parenting

orders, and placed prohibitions on a range

of activity. The Anti-Social Behaviour Order

has been used on thousands of occasions

against individuals where it has been proved

their behaviour has caused alarm or distress

to ordinary citizens. Curfews have been used

to prevent predominantly young offenders

from being at large during certain key hours.

The government has increasingly used

prohibition orders against those involved in

certain types of offending. This has involved

preventing individuals going into certain

geographical areas, from associating with

named individuals or engaging in certain

activities. Napo believes that many of

these principles could, and should, be used

if recklessness and speculation has, itself,

caused alarm and distress to members of

the public.

During the last few weeks the union has

examined what actions can be taken under

existing laws against those who have

recklessly caused harm to our society by

their anti-social behaviour in our banks and

25the barrister

Conferring on human rights and wrongsReviewing the 2008 legal conference season: The Justice Conference, the Bar Conference and the Criminal Justice Management Conference

By Phillip Taylor MBE, Richmond Green Chambers

Autumn is always a time for

the serious conference-

goer, and a recurring

theme for 2008 was the

evaluation of human

rights law after ten

years for members of the Bar and legal

professionals.

Justice and Thomson Sweet & Maxwell

combined again to run their most successful,

well established and thought-provoking

annual conference on current developments

in human rights law with the theme, struck

well by keynote speaker, Jack Straw, on how

to make people love human rights, ten years

on.

The Bar Conference keynote speech from

Lord Bingham, and other speakers travelling

along the same route, rightly suggested that

these rights are of genuine concern for those

pursuing multiculturalism. It was particularly

poignant just before the 70th anniversary of

Kristallnacht which held a special place for

all of us last year and was justifiably referred

to for its historic warning.

LADY JUSTICE ARDEN Before we heard from Jack Straw, it was the

turn of Lady Justice Arden to open the Justice

Conference and tell us all that the Act has

changed the way we think about democracy,

and the way we consider the focus of the

law in cases where the Act applied. Her

contention was that the issues centre now on

the rights of the individual rather than those

of the majority.

Arden felt that either an individual’s rights

can no longer be abridged, or the onus

concerning such rights has been shifted to

the state which would have to show that any

interference with the right is essential. That

seemed to me to be the thrust of her opening

argument in the morning.

However, considering judicial review

applications not involving human rights, she

considered that it would be for the individual

to show that a decision under challenge could

be held to be “perverse”.

Democracy had now become a “complex

interplay between majority and minority

rights”, she added. A comment I found

particularly interesting from such a senior

member of the judiciary.

The Court of Appeal judge, who has been

tipped for promotion to the House of Lord

this year (2009) when the changes occur,

also suggested that human rights law should

show favour to individuals over the majority

so the new Supreme Court will need to

explain its decisions to the public in 2009.

Perhaps I am a bit cynical but I felt she was

trying (rightly) to get the new agenda set on

its true course.

Of the new Supreme Court, which will take

over from the law lords (in name anyway),

Arden LJ said this gave us all “a unique

opportunity for setting up an apex court

for the twenty-first century”. She said we

needed to build new institutions to ensure

the success of individual rights.

She went on to question whether the new

court should have different criteria for

selecting the cases it was to hear, perhaps

favouring those that raised constitutional

issues.

Arden felt that its judgments, particularly

those dealing with human rights, had to be

clearly communicated to the public. I could

feel that the audience approved even though

it was nearly time for morning coffee.

“Things have changed radically in the last

50 years,” she explained. “The public is no

longer content to know what the law is. They

want to know why it is.” I came away from

this session, as I have with other judges like

Lord Bingham (see below), that we really

do need to hear much more from them if

for no other reason than the beauty of their

well crafted, and sensible, speeches. It was a

privilege to heard Arden LJ and I feel most

were very impressed.

THE CONCEPT OF THE ‘CONSEIL

CONSTITUTIONNEL’ AND THE

SUPREME COURT

Arden thought that the Supreme Court

would evolve, although this would happen

slowly. She gave the example of the ‘Conseil

Constitutionnel’, which was given new

powers this year to annul laws that it regards

as unconstitutional in France.

This went much further than the Human

Rights Act, which came into force eight years

ago but is clearly a persuasive precedent for

us. She said: “It enables the citizen to argue

that primary legislation is unconstitutional

and to seek an order that it be set aside.”

However, she was not predicting a parallel

development in the United Kingdom. “But

the Conseil Constitutionnel illustrates how

institutions can change and evolve as

circumstances require.”

Other judges have said they do not expect the

new Supreme Court to be any different from

the old House of Lords, which has no power

to overturn primary legislation. But observers

have said that this takes no account of the

law of unintended consequences. We shall

wait and see, but Arden’s contribution to the

Justice Conference was certainly profound

and worth hearing.

JACK STRAWThe other keynote speaker in between the

specialist sessions which were all of a very

high quality and ‘fit for purpose’ was Jack

Straw. Jack combines roles as a modified

Lord Chancellor and ‘Justice Secretary’,

and he conceded that the Human Rights

Act had not found a place in the public’s

affection — “despite its manifest benefits”.

This started well and I was looking forward

to some ‘politics’ (dare I say it!). I was not

disappointed.

Forget his delivered speech which you can

view on the internet for its worthy content,

it was his answer to the sixth and final

question put to him which summed up his

feelings when he replied with a passion about

human rights issues involving conduct and

the balance which our society needs to have

as a two way street for rights. That struck

a chord with me as I have been teaching

law to adolescents who know the rights but

seem unaware of the responsibilities that are

tagged on (like some clients).

Jack ended on his highest note (well worth

waiting for) with a stark point about what is

at risk for us- namely a lack of affection for

human rights (as shown by some newspapers

regularly named that day as critics) would

damage the foundations of the two-way

street for these rights so it was for us to fight

for the soul of human rights law after the

first ten years as we look forward to further

legislation. His theme was echoed at the

other main conferences I attended, including

the Bar Conference at Lancaster Gate on

‘Multinationalism and Multiculturalism-

Tomorrow’s World?’

Straw started his speech by telling us that

the main reason for the HRA can be seen

with the atrocities of September 11, 2001,

occurring less than a year after the Act

came into operation. “The debate became

about whether terrorists themselves should

be given the very rights they deny to others,”

he said gravely.

In reality, he went on, the Act had not

impeded efforts to counter terrorism. But this

had not been the perception. Then we got a

bit of the ‘knock about’ politics and the views

of the Opposition which I had witnessed at

the Tory Conference in Birmingham with

David Cameron’s commitment on a future

HRA.

A FUTURE GREEN PAPER: A “Bill of Rights & ResponsibilitiesWhat was needed now, he continued, was a Bill

of Rights and Responsibilities encompassing

social and economic rights that had not

been included in the European Convention.

It would be “an opportunity to bring together

existing rights and responsibilities in one

place and to provide a clearer articulation of

the duties we all owe”.

But if such a Bill was to have any real and

lasting impact, it would have to win the

public’s support — "and affection" — in a

way that Human Rights Act had yet to do.

Without it, Straw added, in response to initial

questions, the existing legislation would be

at risk. This was the bit which remained

with me as I could see he was genuinely

moved with a bit of low key emotion which

can always have its place on these occasions

when the future of such an important policy

is being re-assessed

Jack Straw finished his session with this

statement which was the answer to a question

I referred to earlier on where the burden if

responsibility lies: this is how he replied

“If we don’t establish, in the public’s minds,

an affection for human rights — and one,

quite profound, way of achieving that is

by saying that this is a two-way street,

with responsibilities and obligations — then

the foundation in people’s souls for human

rights won’t be as deep or as strong as I

would wish; and it will be easier for a future

administration of a different complexion to

start to undermine the whole fabric.”

I liked this because he got the tone right.

However Straw made no promise of any

legislation in the next Queen’s Speech. Since

the Government has said it will consult

widely on what a new Bill should contain, the

chances of legislation being passed before

the next General Election must be remote.

LORD BINGHAMThe Bar’s theme for 2008 was ethnicity with

the theme of human rights running throughout

just as it has for our fellow professionals at

the Criminal Justice Management Conference

with the police ‘take’ on human rights and

an eagerly awaited speech from Sir Ronnie

Flanagan who did not disappoint with a

statement on new policing policies.

The best speech from the well attended

Bar Conference came from Lord Bingham

although I found every session was of an

excellent standard - the most enjoyable being

the debate where ‘equity reflects core values

which transcend cultural differences’ and the

full flow of our equitable heritage was heard

(forget the common law, this was where it

was at!)

I started with Lady Justice Arden and I

end with Lord Bingham. We were very

lucky to have these contributions at such

an uncertain time for all. It is impossible to

do justice to Bingham’s speech (forgive the

pun) as it stood out for its learning, its sense,

its content and its conclusions. It was a bit

like reading some of the finely-tuned Lords

law reports: ‘it raised questions but did not

produce answers’.

And that was that, because the jurisprudence,

the learning and the practical philosophy were

there throughout considering the safeguards

for minority rights in today’s society where

Lord Bingham raised the hard cases and

gave his version of what we do. It was a

thought-provoking start to a very successful

Bar Conference and as I saw earlier, I came

away feeling society needs more exposure

from these speakers talking about our ‘rights’

in a world which, days later, found Obama as

the 44th President of the USA and it is to be

hoped that character rather than colour will

now find its predominant position for our

global community as we fight for the soul of

human rights in the twenty-first century.

24 the barrister

27the barrister26 the barrister

Forensic Science – Who investigates the investigators?Roger Robson, Partner, Forensic Access Ltd. gives his opinions on the current process of historic case review with particular emphasis on the impact within the UK forensic market.

You would think in these

modern times; cocooned

in quality systems; that

there was little room for

error and miscarriages

of justice; yet the very

drivers of today’s society unfortunately still

allow for the occasional slip which is hopefully

captured further down the line, those not

caught are sadly a reflection on our own

inabilities within the judicial process. Whilst

the figure surrounding such embarrassment

is not within the status of shock, you will

I’m sure agree that it would be absolutely

unacceptable should the finger point without

fairness at your partner, son or daughter.

Forensic science – a powerful tool for

the police investigator

The use of forensic science as a tool to assist

both the Investigator and the Criminal Justice

System has become enormously important;

much more so since the introduction in the

1990’s of DNA analysis. Whilst not conclusive

in its interpretation, DNA alone has proved

its worth in tracking down the perpetrator

and assisting the juries with phenomenal

statistics that evaluate how likely the DNA

came from someone else with the same

profile. The technique of DNA has been

used with great effect to unlock unsolved

cases and bring to justice individuals who

have remained free to reoffend; cases going

back as far of 30 years are making the

headlines on a monthly basis. This has been

heartening for the forensic community as

a whole reaffirms the public’s trust in the

police and most of all brings closure for the

families who have had to live for many years

not knowing where, why or by whom their

loved ones were killed.

I don’t recall a year passing by during the

past 10 years or so without some high profile

case being either solved, or a conviction

being overturned using the power of DNA

to make such judgements. Forensic science

has been critical in many of these cases –

sometimes it has been enormous help, other

times it has been the misinterpretation that

has lead to the downfall. In terms of any

misuse, obviously, it is important to get it

all right in the first place. Taking all of this

into consideration it has to be applauded

that advances in forensic techniques have

assisted far more in solving old cases and

allowing for safer convictions today on a

daily basis across the UK in comparison to

the occasional case which has for various

reasons been at fault through the forensic

tests or their interpretation. Within our

adversarial system we do at least have the

opportunity to challenge all aspects of the

investigation that has lead to the prosecution

case...and rightly so. These days there is now

the opportunity to challenge the investigative

strategy, the leads, decisions taken mid-way

through an investigation and the forensic

testing rational. All of this detail is now

documented and disclose able.

Misuse of the tool and the independence

of the Expert

On occasion even the reinvestigation of a

historic case can and does not proceed as

successfully as it may. The original police

investigative team may be pulled together

once more, say on the anniversary of a

particularly high profile unsolved murder.

Funding is released from the force and the

team review once more what they perceive

to be the best way forward. Bias may already

exist and be heightened if a strong suspect

has committed offences in the interim. A lot of

public money can be spent chasing the wrong

suspect and in desperation spending many

thousands of pounds attempting to locate his

DNA on the victim’s clothing, when in reality

it was not he who committed the offence in

the first place. If allowed to perform their job

correctly, the forensic scientist should remain

objective throughout the re-investigation, no

matter how forthright the police investigator

appears. The police however do hold the

funds ... why buy a CD if you don’t like the

singer! Some Senior Investigating Officers

(SIOs) believe as they hold the funds they

have the right to set the forensic strategy.

Whilst this may appear reasonable a little

knowledge is dangerous and their decisions

and strategy often biased – they are

investigators not scientists and should allow

the scientist to do their job. A scientist who

does not challenge the decisions to ensure

they are safe is not undertaking his role

professionally. To remain objective the duty

of the scientist is not only to assist the court

by finding scientific evidence to support the

investigator’s proposition (that say Mr Smith

killed Mr Jones) but should equally attempt to

refute the proposition. Whilst many scientists

refer to this in the preamble within their

statements, sadly very few have either the

time, the funding or are fully conversant

with all the facts from the defendant to

perform the task of fully assessing the

proposition to refute. Thankfully therefore

there is the opportunity for a defence

scientist to explore the accuracy of both the

tests, the interpretation and offer realistic

alternatives in order to give balance to the

overall thrust with which the forensic aspects

assist with a safe conviction or acquittal.

On this point, it is often unwise to go to the

other large corporate forensic provider for

a second opinion as their scientists too are

generally deeply entrenched in prosecution-

biased strategies and few have the skills to

effectively challenge.

On occasion solicitors working for The

Criminal Defence Service do not know where

to go for an appropriate expert to scrutinise

the prosecution work. Many Barristers have

their favourites. I suggest they seek to find

out if the expert they use is still competent to

undertake the scrutiny. Are they or were they

a practitioner themselves? If not then the

chances are that whilst they may be able to

attack the interpretation with vigour they will

not have appropriate skills to check the very

basics of the tests. To take up the services

of a “Hired Gun” may achieve success in

muddying the waters but this practice is

foolhardy and unethical and merely creates

enhanced problems further down the line.

Yet the Hired Gun still exists and practices.

So what is been done about it?

The police forces have their own internal

mechanisms and checks to ensure themselves

and their Governors that they are spending

public money wisely. The larger major crime

investigations are usually reviewed within

7 days if no one has been charged with the

offence; then re-reviewed more thoroughly

after 28 days. If the enquiry goes cold then

the force may decide to bring in a fresh

investigative team from another force to

review all the original work.

If a complaint has been made, say by a

grieving relative, or harassed suspect then

the case may be referred to the Independent

Police Complaints Commission. They have

regional facilities throughout the UK with

many staff – this is telling in itself.

Individuals that consider their convictions

unfit and still plead their innocence are

directed, via a solicitor, through a rigorous

review process often spanning a number

of years and through the guidance of the

Criminal Case Review Commission [CCRC].

A look at the CCRC website demonstrates

a rather unhealthy list of cases that are

currently been reviewed and those waiting

on the touchline. Longwinded though this

process may be at least we have checks in

place within the CJS that allow for an Appeal

process.

As many of the high profile cases involve

Expert Witnesses working for both sides the

move to have pre-trial experts’ conferences

in order to lay some common ground should

only be applauded. The Barristers should

stay away from the debate I suggest and the

Experts should be reminded that it is their

duty to serve the Court and not the individual

who is paying their fees.

The forensic services offered in the UK

continues to move rapidly, though the quality

of the Statements, the time allowed to

undertake tests and the role of impartiality

has not been permitted to keep pace. The

forensic commercial marketplace has lead

quite rightly to the Home Office introducing

the first Forensic Regulator. His remit is

to oversee the quality of forensic science

throughout the judicial process – a huge

undertaking for anyone. Police forces, large

commercial forensic providers and eventually

the lone expert will need to demonstrate to

the court that the tests they use are accredited

and their competence to act as an Expert has

been authorised. This cannot happen soon

enough and will at very least allow for the

Courts to be reassured that the scientist has

performed to the best of his abilities. Those

working more so for the CDS should also

not shy away from such regulation and this

I’m confident will allow for a more robust

scrutiny, fewer “hired guns” and ultimately

fewer miscarriages of justice.

Roger Robson may be contacted at Forensic

Access on 0845 230 2414 or by email at

roger.robson@forensic-access.co.uk

29the barrister

The future of e-discoverySo, what of the future for litigation technology? It is fairly safe to assume that the needs of the litigator will remain fairly constant. This holds true for the expert as well – those of learning, distilling and processing the facts into a coherent, logical and persuasive presentation that retains integrity in court or other litigation.

By James Stanbury, Partner and Chris Paley-Menzies, Manager at RGL Forensics

2050; a plain room in

a Nottinghamshire

farmhouse overlooking

the sea. A middle-aged

man walks in and sits at

the UltraWood™ desk and

waves his hand through a sensor field above

the desk. The field detects and authenticates

the e-Chip™ embedded in his hand and

verbally identifies and welcomes – J. to his

iChambers™. Simultaneously, multiple

beadlike projectors mounted within the

SynthStone™ walls beam into life a three

dimensional scene and the room becomes

a wood panelled court room. The window

shows a view of the long since demolished

Royal Courts of Justice, the shining sun still

its normal shape. The Judge dons his iWig™

which immediately starts communicating

with the central nervous system terminals in

his neck and stimulating his corneal implants.

The court room now becomes populated as

the AI system displays the avatars of the jury,

barristers and other attendees. A level toned

but disembodied voice speaks, “All rise…”

A fanciful view of the future of court

proceedings perhaps but, as computer

technology advances, what are the

implications for a problem apparently both

caused by and being solved by technology:

that of e-discovery?

The rise of e-discovery and

electronically stored information

The rise of e-discovery as a jargon term on

the lips of almost all litigation lawyers has

its roots in the expression ‘paperless office’.

The phrase, which came to prominence

around 30 years ago, was the dream of

office managers and technologists where

they envisaged the new computer technology

completely replacing paper within years.

However, any litigator will tell you it was a

naught but a pipe-dream, in time-scale at

least, as they still have to review rooms full of

archive boxes to discover the relevant parts.

Sometimes, the only recourse was to throw

staff and hundreds of chargeable hours at

the problem.

However, the eventual proliferation of the

microprocessor and electronic storage media

has lead to a gentle shift in the balance

of power between paper and electronically

stored information (ESI). While the concept

of the paperless office is still not wholly

based in reality—just about any established

company that proudly boasts paperless

systems will still have large numbers of

printed documents in a deep warehouse

archive—now the focus of the litigator’s

problem has largely shifted to the new virtual

world of things such as email archives, CRM

systems, transactional databases, shared

network folders, backup tapes, backup disks

and even a technology that is actually called

“virtualised storage”.

Current Challenges

It appears that litigation support teams are in

a difficult period at present. Technologically

speaking, paper based records are relatively

easy to deal with—most lawyers will be

familiar with the process of scanning paper

into electronic format and being able to

review it in an online system. The age-old

problem remains of how to search through

it all. This problem has been exacerbated

hugely by now having to add in the

exponentially increasing amounts of ESI. It

seems paradoxical that the very systems put

in place to make our lives easier and more

“productive” are making things harder for

us, and, currently, there are no “easy” (or

cheap) ways of taking these virtual vats of

data and making sense of them.

Let us look at some of the particular

difficulties presented to the various involved

parties: lawyers, forensic technology teams

and forensic accountants.

The problem for the lawyer, as mentioned

above, has always been getting the best, most

relevant information in the least time. There

is a trade-off between applying expensive

technological solutions, which may or may

not get the most relevant information (see

below), or doing a page by page review

which takes huge resources and experience.

Additionally, at a recent seminar on this

subject, the point was raised that junior staff

performing the initial review may be less

efficient than a senior, more experienced,

lawyer, but cheaper.

For the forensic technologist, who is tasked

with collecting the information to begin with,

the problems tend to be more logistical. It

follows that, the more data there is, the

longer it will take to collect and collate and,

correspondingly, the longer it will take to

process into a reviewable form. Obviously,

when the term longer is used, this means

more expensive. The collection guys also

have to race to keep up with technological

advances. The old days of performing disk

images onto a tape drive, when a 6GB hard

disk would take all day, are long gone. Now

hard disks in new laptops routinely top

200GB in size and there is a struggle to keep

up to date with expensive forensic hardware

to make acquiring such volumes of data not

only possible within the deadlines, but also

economically viable for the litigator client.

Relevant Data Retrieval

When looking at the task of retrieving

relevant data from a large collection of

documents, or data set, the words precision

and recall are often used. The precision of

a search determines the relevance of the

document(s) returned but does not take into

account whether all relevant documents have

been retrieved. Conversely, recall measures

how well a search has performed in terms

of the number of documents retrieved.

However, it does not measure the relevance

of the documents. This principle is amply

demonstrated when using the traditional

method of interrogating a large data set

without doing a page by page review, that of

key word searching. A client of ours would

regularly ask us to do word searches across

computer evidence data and they would

invariably ask for the word “Spain” to be

included. “Spain” always returned hundreds

(or occasionally thousands) of positive hits –

a high recall factor but with low precision.

However, by clarifying the search term to,

say, “villa and Spain” we might hope to get a

higher precision score.

Thus, the struggle faced by litigators is to

balance these twin factors whilst applying

the most technologically efficient way of

actually performing document retrieval.

However, compared to some of the emerging

technologies, it must be said that searching

for key words is rather a poor relation.

The industry now abounds with terms

like contextualisation, conceptualisation,

categorisation, threading and near

duplication. Apart from the latter, these

are all technologies designed to make the

litigator’s life easier and are broadly aimed

at grouping similar documents in a data set

together, sometimes via a visual interface.

The theory goes that, if all emails suggesting

a quick sojourn to the local hostelry are

clustered together then that grouping can be

safely ignored. Unless, of course, the whole

issue is looking into low staff productivity in

which case the reviewer has hit gold! These

methods are great but, because there is

usually rather a large cost associated with

their application, they are usually reserved

for those cases where the data set is truly

enormous.

Back to the Future

So, what of the future for litigation

technology? It is fairly safe to assume that

the needs of the litigator will remain fairly

constant. This holds true for the expert

as well – those of learning, distilling and

processing the facts into a coherent, logical

and persuasive presentation that retains

integrity in court or other litigation.

Experience will still count, not only in

deciding what the best course of action is

but also in analysing and getting to the nub

of a case. For the Forensic Accounting

Expert, technology can forge highly pertinent

links and equations between data, but it has

yet to replace their intuition in finding and

pursuing a line of enquiry that may support

or undermine an argument, or indeed a

whole litigated case. The bloodhound is yet

to be replaced by K9!

That's not to say that someone will eventually

somehow manage to capture the knowledge

and skills of a litigation professional into an

automatic system - this actually the subject

of some current research where decision-

making in a document review is set to

algorithms.

Where we can hope to see light at the end

of the tunnel is in the routine handling

of information within organisations. At

the moment most ways of automatically

classifying or tagging documents lie in

retrospectively applied technologies, which

are only brought in when needed. If we

assume that data is not going to get more

structured, (indeed the current pattern

indicates a move to less overall structure

in data storage – gone are the days when

each department would have its own file

server) it is imperative that systems which

automatically make sense of the unstructured

become commonplace. We can see a

forerunner of this in a small utility program

called Calais. This is a ‘fact extractor’, which

will analyse a document and record such

information as names, events and places

which can then be fed into an analytical

engine. Document repositories with this

built in will be able to organise and present a

structured view of the information at a single

command.

Finally, developments in artificial intelligence

mean that computers are already nearing

the capability of passing the Turing Test

which determines the ability of a computer

being able to fool a human observer into

thinking they are interacting with another

human. Additionally, robotics technologies

are becoming more and more sophisticated

and cheap. Maybe our online judge from

the opening paragraph will be replaced with

a U.S. Robotics NS-6 (the “I, Judge”™), and

the multiple Terabytes of data will have been

subjected to a page by page review by a huge

bank of RoboParalegals™.

James Stanbury is a Partner and Chris Paley-

Menzies is a Manager at RGL Forensics

28 the barrister

31the barrister30 the barrister

NEWSROUND

UP

The following is a

fictional account based

upon a true story. It

considers the limits of

pro bono support and

acts as a warning to

charitable barristers.

Mr Thompson had been served with a notice

of repossession. He was 63 years old and

had lived in the same house for 9 years. The

landlord claimed that he had not been paying

his rent, however, he disputed that this was

the case. His next door neighbour’s husband

was a barrister. He thought that she might

be able to help him and so he raised the

matter when she saw him in the street. She

kindly agreed to see what she could do. The

neighbour’s husband, a QC, was too busy to

help himself but he asked a junior member

of his chambers (Baby Barrister) to give Mr

Thompson a call.

Baby Barrister listened to Mr Thompson. He

had a good case. In fact there were powerful

arguments for a counterclaim. Mr Thompson,

however, didn’t understand the significance

of a particulars of claim, how to respond to

them or what the court procedure would be.

Acting pro bono Baby Barrister drafted a

Defence and Counterclaim. He met with Mr

Thompson and explained what he had done

for him. He thought it was an interesting case

and he agreed to help him. The Defence and

Counterclaim were served.

The weeks went by and Mr Thompson’s

case progressed. He hadn’t heard from Baby

Barrister for a while and so he contacted his

chambers. The Head Clerk was immediately

concerned. Baby Barrister had broken the

Bar Code of Conduct. He could not represent

or advise Mr Thompson without proper

instruction from a solicitor or similar licensed

body. The Head Clerk refused to accept any

more documentation. Despite his efforts Mr

Thompson couldn’t find help from elsewhere.

In the end, under prepared and with little

legal knowledge, he had no choice but to

represent himself. But he didn’t understand

the Defence or Counterclaim. Mr Thompson

struggled at court, lost the case and his house

was repossessed. Instead of being able to

help, Baby Barrister now faced the prospect

of disciplinary action. He had jeopardised his

career trying to do a good deed.

Unfortunately it is difficult for a barrister to

provide direct pro bono support. If he were

a solicitor he could have provided these

legal services so long as he had indemnity

insurance. A barrister in this situation could

only act for the client if he was 3 years PQE

and had paid the £400 for a direct access

qualification. The vast majority of barristers

still don’t undertake this course. Only 120

or so are listed as undertaking housing law

in the whole of England and Wales. It is not

known how many would entertain pro bono

work. Law Centres, Citizen’s Advice Bureaux

and other pro bono services are overrun.

When there are so many people looking for

pro bono support is it right to deny them

a source of free help from a professional?

While solicitors continue to advance into

territory once firmly the preserve of the Bar,

is it sensible to continue to handicap qualified

practising barristers? What should Baby

Barrister have done?

A barrister can help someone with a legal

problem so long as that help does not

constitute “legal services” as defined by the

Bar Code of conduct. He could have explained

to Mr Thompson what the procedure and

law was relating to repossession. He could

have researched the law on his behalf and

summarised it for him. In essence he could

have educated him on the law by providing

and explaining legal information. What

he could not do was apply the law to Mr

Thompson’s case. He certainly could not

draft documents, advise or represent him.

The rules of conduct for barristers are there

to protect the integrity of the profession. But

when it comes to pro bono work there is a

disparity between the two branches of the

legal profession. In these times of limited legal

aid and high private fees the aim should be to

create as much pro bono support as possible.

Until the code of conduct changes barristers

have to be very wary of any requests for help.

The perils of trying to do a good deedBy David Griffith–Jones, Barrister and Director of Cantaffordalawyer.com

Litigation Costs: In anticipation of the effects of the ominously close Legal Services Act, we have to ask ourselves whether the current litigation model is looking outdated.By Antony Brown, Chief Executive of Bivonas, solicitors and trial lawyers based in the City of London

Barristers and

solicitors used to

work successfully in

tandem; however this

increasingly involves

duplication of costs

which is unacceptable in today’s financial

climate.

The Bank of England Governor, Mervyn

King described the framework as “an arcane

process which allows professionals to earn

vast fees”. The majority of litigants in

England, whether private client or corporate,

know this is a fair statement. Unarguably

litigation is an expensive business and for

some impossible.

The two professions arguably no longer

run in tandem but in parallel resulting in

huge costs for the litigant. Several barrister

have explained to me what drives them to

perfection when preparing for trial and the

answer is the fear factor. The fear of being

made to look foolish by the trial judge, the

appellate judges, by opposing counsel, or

simply the fear of losing; criminal trials have

the added dimension of a jury scrutinising

counsel.

We see evidence of chronic over-manning by

law firms which attend court with an army

of partners, associates and paralegals when

the case is argued by one QC. This is not

going to be sustainable if the sophisticated

consumer wises up to the fact he can identify

niche firms that can deliver quality legal

representation more cost effectively.

E-disclosure has gained much attention

recently with judges and experts calling

for all courts to implement the Commercial

Court Long Trial Recommendations and

demanding that the legal sector takes action.

E-disclosure practice directions are a step

in the right direction but it is hard to accept

that such discussions are taking place in

2008 when the majority of businesses were

probably having similar discussions a decade

ago.

Supported by well managed IT the smaller

niche practice can take on the perceived

Goliaths in the litigation industry. The term

“Magic Circle” only really has a significance

in the areas of Banking and commercial deals

and the term really has no resonance in the

field of litigation.

The Bar aims to generate as much business

directly as it can and is probably more aware

of the parallel system colliding than solicitors.

However the infrastructure of chambers does

not necessarily support the unified litigation

model and the lack of corporate/ collegiate

infrastructure is a serious disadvantage.

The Legal Services Act will be the “big bang”

for the £20 billion legal industry. Now is the

time to look at the structure of law firms and

how we bill our clients. The way forward for

us has to be fixed cost since the time and

expense system in most cases will encourage

delay and higher costs.

Bivonas specialise in civil and criminal fraud

litigation or where commercial disputes have

dishonesty undercurrents. Most cases go to

trial; there is little room for compromise.

We have our own QC, Mark Rainsford and

maintain a paperless office which is able

to manage large volumes of documents

electronically. Mark acts as a conventional

leading counsel or uses his knowledge of

large fraud trials to manage the disclosure

process and trial preparation, making sure

that whatever external counsel receive is

capable of being relied upon at trial.

Antony Brown is Chief Executive of Bivonas

Bivonas are leading solicitors and trial

lawyers based in the City of London. The firm

acts for large scale commercial and criminal

cases and are specialists in fraud and

regulatory litigation, criminal investigations

and prosecutions.

33the barrister32 the barrister

that, if the Government was in imminent danger

of infringing the rule of law, he would speak "first

of all privately to colleagues, and then publicly, if

necessary". He stated that "publicly" meant "on the

floor of the House of Commons or in the public

print".

In the original report, the Committee acknowledged

that it would not be necessary for the Lord Chancellor

to reprimand fellow ministers if they always adhered

to the principle of not commenting on decisions of

individual judges in an inaccurate and intemperate

manner. We suggested that one possible way of

achieving this would be to amend the Ministerial

Code (the code of conduct and guidance on

procedures for ministers, published by the Cabinet

Office) to include reference to the constitutional

conventions which ought to govern public comment

by ministers on judges. Such amendment would

also make the Lord Chancellor’s execution of his

responsibilities in this area easier. We were therefore

pleased that the Government said in their response

that they would "further consider the Committee's

recommendations when the Code is next updated".

In the follow-up Report we reiterated the importance

of amending the Ministerial Code so that it gives

clear and unambiguous guidance to ministers about

how they should or should not comment about

judges in public. We have undertaken to review

the position when the Government next update the

Code.

Other recommendations

The Committee considered the establishment of

the Ministry of Justice - criticised in the original

report on the grounds that the Government failed

to consult with the Lord Chief Justice or the Lord

Chancellor prior to announcing the new department.

In the follow up report we stressed that any future

constitution or machinery of government changes

that impact significantly on the judiciary should

follow consultation with the Lord Chancellor and

Lord Chief Justice at the early stages of the policy

making process.

The Committee also considered the potential role

for the courts in providing guidance to Government

on whether proposed or recently enacted legislation

is compatible with the Human Rights Act. We

recommended a system of advisory declarations

whereby the courts could make a declaration

on the compatibility of legislation after hearing

submissions from two or more parties. We found that

this would avoid legislation being undermined by

on-going legal challenges under the Human Rights

Act. Such advisory judgements would have to be

made after the usual adversarial legal process, so as

to allay fears that such declarations might prejudice

future court cases.

We also recommended in the follow-up Report that

the roles of Lord Chancellor and Secretary of State

for Justice should continue to be combined in a

single office holder as at present.

We agreed with Lord Phillips, the then Lord Chief

Justice that he should continue to publish an annual

report and called on his successors to continue the

practice.

In our original report we concluded that the media

all too often published distorted and irresponsible

coverage of the judiciary, treating judges as 'fair

game'. A responsible press should show greater

restraint and should desist from blaming judges

for their interpretation of legislation passed by

politicians. In order to ensure more responsible

reporting, we recommended that the Editors' Code of

Practice, which is enforced by the Press Complaints

Commission, be regularly updated to reflect these

principles. In the follow-up report we re-iterate

these concerns and stressed that media coverage of

legal judgements should be factually accurate and

temperately expressed to avoid repetitions of the

mistakes in the Craig Sweeney case. This should

be reflected in the Editors Code of Practice and the

Committee expect to see an outcome to the Editors’

Code of Practice Committee’s deliberation which

will respond to our concerns.

Our reports on these issues have come at a time of

significant change for the Judiciary and the legal

profession. We hope to have made a contribution to

ensuring that the changes being undertaken do not

undermine judicial independence. We will continue

to scrutinise the Government’s commitment to

changes to the Ministerial Code and any future

reforms of the Judiciary or court systems.

Lord Goodlad, Chairman of the House of Lords

Constitution Committee

1 http://www.publications.parliament.uk/pa/

ld200607/ldselect/ldconst/151/15102.htm

2 http://www.publications.parliament.uk/pa/

ld200708/ldselect/ldconst/177/17703.htm

series of recommendations to both the

Government and the judiciary. The report

focused upon the impact of the Human

Rights Act 1998, the Constitutional

Reform Act 2005 and the creation of the Ministry of

Justice, which occurred during the inquiry.

In the report, we emphasised the importance of

the Lord Chancellor’s fulfilling the duty to defend

the independence of the judiciary (recognised by

section 3 of the Constitutional Reform Act 2005)

by ensuring that ministers do not impugn individual

judges (and to restrain and reprimand those who

do so) and recommended the inclusion in the

Ministerial Code of "strongly worded guidelines

setting out the principles governing public

comment by ministers on individual judges". This

recommendation followed the Craig Sweeney case,

where the then Home Secretary the Rt Hon John

Reid MP had publicly criticised a legal judgement.

We also criticised the Government's handling of the

creation of the Ministry of Justice and called for

a transparent process for the setting of the budget

of Her Majesty's Courts Service, with appropriate

judicial involvement. Other recommendations to

the Government concerned the status of the Lord

Chancellor, the involvement of the Law Officers

in policy-making and legislative drafting, and the

possible use of advisory declarations by the courts

to rule on whether recently enacted legislation is

compatible or incompatible with the Human Rights

Act.

The report also examined the judiciary's channels of

communication with the media and the public. Whilst

the Committee criticised sections of the media for

irresponsible coverage of judges, we also concluded

that the senior judiciary should act more quickly

in explaining judicial decisions in controversial

cases and recommended that "consideration be

given to appointing one or more spokesmen with

appropriate qualifications and legal experience who

would be permitted to speak to the media with the

aim of securing coverage which accurately reflects

the judgment or sentencing decision". We also

considered the appearance of judges before select

committees, the role of the Lord Chief Justice and

his annual report, and the interaction of individual

judges with the media.

Follow up Report

In October 2007 the Government published their

response to the Committee’s report and the Lord

Chancellor, Jack Straw MP, gave evidence to the

Committee. The judiciary also provided a response

that month—their first to a select committee of

Parliament—and the then Lord Chief Justice, Lord

Phillips of Worth Matravers, subsequently gave

evidence to the Committee on two occasions. We

sent a copy of our report to Sir Christopher Meyer,

Chairman of the Press Complaints Commission

(PCC). This was followed by correspondence with

the Editors' Code of Practice Committee which

reviews the Code.

The Committee took account of the two responses,

the three oral evidence sessions and the subsequent

correspondence and on 16 October published a

further report2. Our aim in publishing the follow-

up report was to analyse the responses by the

Government and judiciary and to assess progress

made since the original report.

Amending the Ministerial Code

The first recommendation in the follow-up Report

related to the Ministerial Code. In our original

report we had discussed in particular the political

reaction to the Craig Sweeney case. Sweeney was

sentenced to life imprisonment for abducting and

sexually assaulting a three-year-old girl in June 2006

but, in accordance with the sentencing guidelines,

he was given a minimum tariff of five years and

108 days. The then Home Secretary, Dr John Reid

MP, subsequently attacked the sentence as "unduly

lenient" and asked the Attorney General to examine

the case as the tariff "does not reflect the seriousness

of the crime". On a BBC Radio 4 programme, Vera

Baird MP, then Parliamentary Under-Secretary at

the Department for Constitutional Affairs, stated

that the sentence was wrong (an assertion she

later acknowledged was incorrect and for which

she issued a formal apology). In the Committee’s

original report, we found that there had been a

"systemic failure" in the operation of the new

relationship between the Lord Chancellor and the

judiciary, concluding that Lord Falconer, then Lord

Chancellor, had failed to fulfil his duty to ensure

that ministers do not impugn individual judges and

to restrain and reprimand those who do so. We

also concluded that the senior judiciary could have

reacted more quickly to what the Committee saw as

inflammatory and unfair press coverage following

the sentencing decision.

The Government’s response to our original report

did not accept our criticism of the conduct of Lord

Falconer. The Committee expressed disappointment.

Whilst Lord Falconer eventually spoke out "fully

and forcefully in public in defence of the judge in

the Sweeney case", we believed that he should have

done so sooner and that the Government should

have disassociated themselves more quickly from

the comments of the Home Secretary. It remains

our view that the Home Secretary's comments were

wholly inappropriate.

The Government response stated that Lord

Falconer's successor, Jack Straw MP, "will not shirk

his responsibility in reminding ministers that they

need to be extremely careful not to attack judges".

In oral evidence, Mr Straw commented that "we [the

Government] are regularly going to be respondents

to actions and quite frequently will lose those, and

we have to take it on the chin without a huge amount

of complaint" and that "we may regret a particular

decision and we are entitled to say that, but not to

do that in a disrespectful way". He also made clear

p.1

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