Law and Society – which iS to be MaSter?

In 2008 the Inner and Middle Temple celebrate the 400th anniversary of the grant, by Letters Patent from James 1, of all the freehold land around the Temple Church. 1608 therefore marked the start of the modern history of the Bar – at least that part of it which has grown up South of the Strand!

By Mr Justice Aikens, Hon. Fellow, St John's College, Cambridge

aLL or nothing? - an overview of reStrictionS on parentS deciSion-Making powerS

Parents with parental authority are overridden easily once the welfare principle and public policy are considered. The child is ultimately protected – whether by the state or by their call on the welfare principle.

By Penny Booth, Professor of Child and Family Law and Moyra Throssell, Post Graduate student Staffordshire University Law School

fit for purpoSe? the review of Low teMpLate dna

The use of Low Copy Number (LCN) DNA in forensic science, and the criminal justice system, has been affected in the wake of Justice Weir’s ruling in the trial of Mr Sean Hoey (The Omagh Bombing Trial) ; “I am not satisfied that the publishing of two journal articles describing a process invented by the authors can be regarded, without more, as having "validated" that process for the purpose of its being confidently used for evidential purposes.”

By Professor Allan Jamieson and Dr Rhonda Wheate, The Forensic Institute

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It seems unlikely that those seeking to qualify and practise as barristers, and indeed the profession itself, have ever confronted a set of more serious, complex, and in some cases contradictory chal-lenges than they do at present.

Over recent years, BVC enrolments have been growing steadily (driven in part by demand from those from the very ethnic and socio-economic backgrounds, that Bar must encourage into the profession if its laudable policies on access and diversity are to succeed).

However, pupillages have been declining, and markedly so. Initially this may initially have been caused by the introduction of mandatory fund-ing for pupils. However, in recent years it has

almost certainly been attributable to some of the fun-damental and long term uncertain-ties which face the “independent” Bar. These include, most notably: the post-Carter chang-es to Legal Aid; the increasing number of solicitors with higher rights (and the likelihood that the SRA will make it even easier to acquire them); and, as p.38

News

From BVC to Pupillage – Routes, Obstacle Courses, or Blocked Paths

TriNiTY TerM iSSUe

eSSeNTiAL reADiNG FOr BArriSTerS

www.barr istermagazine.com

Richard de FriendDirector, College of Law,

London, Bloomsbury

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BVT could result in a shortage of criminal lawyers

est. 1999

Settlement gives Legal Aid Providers certainty and stability for the futureThe Law Society and Legal Services Commission (LSC) recently concluded a negotiated settlement of the litigation brought by the Society to challenge the contract signed by legal practices in April last year.

This settlement stems from the significant success achieved by the Law Society in the original litigation before the High Court. Succeeding on almost all points raised, the Law Society appealed the point that was lost. In reply, the LSC appealled all the points that the Law Society had won. The hearing before the Court of Appeal was regarded as so significant that the Lord Chief Justice sat. The Court found for the Law Society with a costs order in their favour.

It is perhaps significant that the LSC, in defeat, indicated that they had anticipated that result. This caused many practitioners to question why the LSC chose to pursue expensive appeal proceedings if the outcome was “anticipated”.

As a result of inaction on the part of the LSC in

response to the Court of Appeal judgment, the Law Society issued Judicial Review proceedings - with costs escalating, a bold but confident decision.

It was therefore welcome that the LSC and the Law Society finally sat around the table together with the Ministry of Justice and brought this expensive litigation to an end.

The negotiations secured the following:

• An increase of 2% on all legal help fixed fees and underlying hourly rates from 1st July 2008.• Care level 2 fee increases from £347 to £405.• A 5% increase in controlled legal representation (CLR) fees and rates for mental health.• A 5% increase in CLR fees and rates for immigration.• A delay in implementing private law family litigators’ graduated fees.• A closed list of CLACS and CLANS planned for the period ending April 2010.• A moratorium by the LSC in not seeking to recover historic unrecouped payments on account (UPOAs) over 6 years old and

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LSC publishes 'route map' for civil legal aid

03the barrister

In 2008 the Inner and Middle Temple celebrate the 400th anniversary of the grant, by Letters Patent from James 1, of all the freehold land around the Temple Church. 1608 therefore marked the start of the modern history

of the Bar – at least that part of it which has grown up South of the Strand! To mark this important anniversary the two Inns are hold-ing a year long celebration. The “intellectual backbone” to the celebrations is being pro-vided by a series of five symposia, or public meetings, under the general title: “The Law and Society – which is to be Master?”. The world – renowned Greek charitable organi-sation, The Alexander Onassis Public Benefit Foundation, has generously sponsored the series. Why are we holding these symposia and what do we hope that they will achieve?

During the 400 years after 1608, lawyers – the judges, barristers and solicitors - have been central in laying the foundation in England and Wales of the rule of law and in creating many legal principles that we now take for granted. Some examples are: the supremacy of the rule of law over the wishes of the Executive (from which, some argue, is derived the modern remedy of “judicial re-view of administrative action”); the right to free speech (but also its curtailment by the law of defamation); the illegality of slavery in Britain; the general rule of no imprisonment without charge; and the right to trial by jury for serious crimes.

These principles have largely been set out in the decisions of the judges, which make up the common law. The common law’s con-tribution to legal principle is thus unique, be-cause it is organic. It matures over genera-tions and rarely changes abruptly. So, in a lecture in 2006 Lord Justice Laws described the common law as “an emollient regimen”. But its critics suggest that it sometimes lags behind the rapid changes in modern society and its needs.

However, the law is not an abstract construc-tion of rules. Laws are made in order to regulate relationships in the real world; those between individuals and those between individuals and other groups in society; or society as a whole. The law and society have developed together, although not always harmoniously. Sometimes it appeared that there were clashes between the aspirations of groups in society and the law – eg. the fa-mous cases about strikes in the early part of the 20th century. Sometimes it was clear that the law had not caught up with advances in society and had to adapt. A prime example must be the (reluctant) recognition in Dono-ghue v Stevenson that the law had to create a new framework of rights and duties in an era of mass production and mass distribution of goods The purpose of this series of symposia is to explore the interaction between the law (in particular the common law) and lawyers and other fields which also fundamentally af-fect humanity. There are many areas we could have examined. We chose to explore

the relationships between the law and each of: science, religion, politics, commerce and international relations.

When we started to think about the topics to be considered, we became conscious of two facts. First, that many of our fundamental ideas on law and about the other topics iden-tified - and many of the arguments which still rage - stem from the ancient Greece. Second-ly, that many principles from the seventeenth century have also continued fundamentally to affect us in today’s world. The first aim of these symposia is to remind us of this histori-cal context of the common law heritage.

As an example, take Plato’s view, expressed in The Republic, that the judges should be “the guardians of the laws and the servants of kingly power”. James VI and 1 would have approved of this idea. But his Chief Justice of the King’s Bench, Sir Edward Coke, might be said to have been the true heir of Aristotle’s view that there must be “constitutionalism” or a rule of law which binds all; with the mag-istrate being the guardian of both justice and equality before the law. Indeed, it has been argued that the Aristotelian idea of the rule of law “…has permeated the culture of Brit-ish constitutional understanding” . Only last month, the Divisional Court was reminding us that the rule of law must be paramount in a democratic society.

Then take the relationship between law and religion. Plato urged laws to prevent people suggesting “that God, being good, can cause harm or evil to any man” – which implies a control of religious views by law. Aristo-tle recommended that laws should control education and should inflict chastisement and penalties on those who disobeyed (Ni-chomachean Ethics Book 10). Aristotle’s writings on religion and science (particular-ly logic) have remained a basis for modern thinking.

At the time when James VI and 1 granted the land to the two Inns, the common law that emerged from The Temple was fashioning the modern English constitution. Our consti-tutional principles have remained largely the product of the common law, rather than being confined to statutes or codes. Of course, this development did not stop in the seventeenth century, with its famous constitutional cases which were battles between Coke and his successors and James 1 and Charles 1. Nor did it stop in the eighteenth century with such landmark cases as Entinck v Carrington or Somerset’s case. In 2006 the House of Lords had to pronounce on the legality of the Hunt-ing Act 2004 and the scope of the Parliament Acts 1911 and 1949, with Sir Sydney Ken-tridge QC leading the argument that the 1949 Act and, consequently, the Hunting Act 2004, were invalid. Their Lordships’ decision rests, ultimately, on the doctrine of the supremacy of Parliament, a doctrine that originated in seventeenth century English cases.

Developments in early seventeenth century England and Europe were important in other

areas we wished to explore, as a few exam-ples will illustrate. Sir Francis Bacon, James 1’s Lord Chancellor, remains famous for his Essays, but perhaps more important was his work on the development of scientific method and the use of induction as a means of scien-tific proof. Hobbes not only fundamentally questioned the basis and function of state power. He also challenged the traditional relationship between Church and State and foreshadowed Enlightenment notions of re-ligious toleration. In Europe, Grotius’ great work on international law, De Jure ac Pacis, was published in 1625 when the Thirty Years War was creating havoc across the centre of the continent. It remains a leading source of international law today. The economic doctrine of the era, mercantilism, gave rise to the English Navigation Acts and Colbert’s centralised control of economic activity in France. The battle between regulation and the later doctrine of free trade and between state control of commercial activities and laissez – faire continues in the 21st century.

This brings us to the second main aim of these symposia: to explore whether or not the current influence of the law (in particu-lar the common law) on these five aspects of society’s activities is for good or ill. The general question might be: does the law (in particular the common law) simply reflect and follow the developments that have taken place in society in the fields of politics, sci-ence, religion, commerce and international relations; or has the law enabled, assisted or hindered these developments?

In the first symposium, on Law and Science, the distinguished panel of speakers consisted of Baroness Deech (who had been chair of the Human Fertilisation and Embryology Author-ity), Sir Tim Hunt FRS (a Nobel Laureate for medicine), Sir David King FRS, (just retired as the Chief Scientific Advisor to the govern-ment), and the well known scientist Lord Winston. The meeting was held in the Royal Society and chaired by its President, Lord Rees. There was a lively debate on whether scientists needed a legal framework and reg-ulation to guide their research, or whether laws frustrated the advancement of science and so, ultimately, hindered science from benefiting humanity. Opinion was equally divided.

In the second symposium, on Law and Re-ligion, there was an equally distinguished panel of speakers, chaired by Anna Ford, who is a Bencher of Middle Temple. We heard contributions from Professor AC Gray-ling, the philosopher and atheist; Professor Mona Siddiqui, Professor of Islamic Stud-ies at Glasgow University, the Rt Rev Lord Eames, former Archbishop of Armagh, and Lord Justice Rix. There was a keen debate on whether religion should have any part in public life – eg. in politics, or education and what is the proper balance between ensuring religious toleration and maintaining public order.

The next symposium will take place

Law and Society – Which is to be Master?

By Mr Justice Aikens, Hon. Fellow, St John's College, Cambridge

One

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04 the barrister

where the amount outstanding is less than £20,000. • New provisions for the reconciliation of standard monthly

payments (SMP’s), designed to keep changes to a minimum, provide for the right to undertake remainder work on a no fault termination of the contract.• A commitment that there will be no price competitive tendering for civil or family work before 2013.

In addition the LSC agreed to publish a route map that is effectively a 5 year programme setting out its plans for the development of civil legal aid contracts.

This route map sets out principles for consultation and a timetable for proposed changes to fees, contractual arrangements and best value tendering.

The approach to UPOAs will alleviate the administrative burden and financial anxiety that has been felt by many firms. Many practitioners had despaired at demands by the LSC for repayment of UPOAs from many years before. Files had long since been closed or even destroyed leaving practitioners unable to locate information about the payments. In many instances no repayment was due.

The settlement means that firms can agree to make no further claim on the fund and any UPOAs will be treated as a final payment or the firm may report on a case by case basis when the UPOA will be taken into account. Exceptions to this amnesty will include UPOAs in excess of £20k, where recoupment has already been agreed or where a “debit notice “has been issued.

The postponement of BVT for civil or family work does provide at long last some level of stability that is vital for organisations to be able to plan for the future. Some sectors of the profession have felt left out of the process.

For criminal practitioners, the only significant matter to arise from the negotiations is the commitment by the LSC to delay BVT in criminal legal aid by 6 months to a date not before July 2009.

This brings into question why BVT in civil or family work is delayed by 5 years when criminal practitioners need to position themselves to be able to tender for work in a fifth of the time, particularly in light of recent changes, including police station fixed fees, the new litigators fee and the graduated fee. Practitioners will also have to come to

terms with running the single fee for Crown Court work that is also due to be introduced in July 2009 at the same time as the possible start date for BVT in police stations and Magistrates Court work.

Clearly, there is merit in allowing these changes to bed in and thereby enable practitioners to align there businesses to be in a position to properly tender for work. The LSC should be persuaded that there is little argument to postponing BVT in criminal work to accord with civil.

In his review, Lord Carter anticipated BVT being introduced in a stable environment with the availability of increased work loads to allow for realistic tendering. A walk into almost any Magistrates Court in the country today will see the previously extensive lists decimated with court rooms and corridors ghost like. Lord Carter could not have envisaged the paucity of defendants before the Court and the impact upon case loads brought about by means testing, conditional cautioning and fixed penalties, especially those that seem to have been imposed in inappropriate situations.

The financial benefits are welcomed with some caution.

The civil lawyers who will benefit from the increase of 2% on legal help work may regard that as a paltry increase in view of the historic lack of increase over many years but at least it is an increase! Again criminal practitioners see nothing of this. Indeed they may feel particularly disadvantaged when some of those whom they represent who find themselves serving custodial sentences appear to be in line to receive an increase of 20% in their weekly prison income.

The closed list of CLACS and CLANS anticipated to cite 15 areas in which the LSC will work with the local authority and other providers to introduce a CLAC or a CLAN, may give some comfort to providers in other areas. However, it is acknowledged by the LSC that it is crucial to involve the local authorities and they must be looking with some concern at what has recently happened in Cornwall.

Cornwall County Council, who had been working with the LSC and providers in the area with a view to launching a CLAN, recently announced it’s withdrawal from that position. The introduction of a CLAC or CLAN will see the termination of contracts of other providers in the area. The concern of the Council in Cornwall was that the introduction of a CLAN was likely to eliminate

a number of providers, both solicitor and not for profit organisations in their area. The local authority clearly took a responsible view in seeking to secure the sustainability of the provision of legal services in an area that poses significant geographical restraints on clients seeking access to such advice.

The Delivery Transformation proposals are intended to secure a likely saving of £7 million per annum for the LSC in simplifying their processes, expanding electronic communication with practitioners and devolving further responsibilities to practitioners. This raises the concern amongst solicitors that the LSC is divesting itself of administrative tasks and passing them onto providers without reimbursement. There must also be the concern, not only for providers but also for the LSC over the recent disastrous attempt to introduce LSC On-Line. This required the withdrawal of the service by the LSC. A limited pilot will seek to correct the failings in the system before its re-introduction.

Overall the settlement achieved by the Law Society in its negotiations with the LSC is probably the best that could have been obtained for civil practitioners, although some groups representing specialist practitioners have felt aggrieved that they were not more involved in the negotiation process.

Des Hudson, Chief Executive of the Law Society, who led the negotiations, has been at pains to stress that this settlement is not the end but only the beginning of the ongoing work that needs to be done on behalf of legal aid practitioners.

The Court of Appeal judgment will clearly affect the contractual relationships between the LSC and legal aid providers. It means that there can be no unilateral right reserved to the LSC to amend contracts. Conditions will need to be clear and any amendment clauses will need to be narrowly constructed.

Finally, the agreement does provide a period of certainty and stability for civil legal aid practitioners in this extremely difficult time. It can only be hoped that this successful piece of litigation against the LSC will induce a more effective discussion process between the LSC and the various representative organisations.

Roy MorganMorgans Solicitors and Chairman LAPG

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06 the barrister

advice. The question is whether this advice will be adequate. I would suggest that the basic requirements of such advice can be summarised as follows:-

Access to lawyers who can advise:a. On the procedure to which the suspect/accused is already subject.b. The nature and possible outcomes of plea negotiation.c. The consequence of such outcomes:(i) penal, including loss of liberty, loss of reputation, financial penalty, disqualification, compensation orders, confiscation orders, community penalties and costs(ii) civil liability – exposure to third party claims – the effect of aconviction by negotiated plea in any subsequent class action(iii) the loss of employment or employment prospects(iv) possible deportation or difficulties in obtaining a visa to entercertain countries(v) the effect of the plea on investigations in another jurisdiction and the possible heightened exposure to an application for extraditionto a third country(x) debarrment from office or ability to bid for certain contracts (alsoa concern for corporations).

Ideally the corporate or individual would receive all the necessary advice from a one stop firm with the addition of counsel. Corporations may be able to do just that, because they have the means to instruct law firms with these skills if they so choose. Individuals, on the other hand, must rely on access funded by (a) themselves – if their assets are adequate and not the subject of restraint orders which cannot ordinarily be varied to provide for such expenditure, or (b) by insurance through Director and Officer policies which may or may not afford sufficient cover but will often be refused because the insured admits delinquency which is an excluded risk, (c) through the generosity and goodwill of a corporate employer, whose sentiment is very likely blunted by either itself being the victim of the fraud or where the corporation and officer/employee are alleged accomplices will nonetheless be hesitant to assist lest such largesse be criticised by shareholders and/or the agency with which the corporation is co-operating. A salutary reminder of this problem is provided by an ongoing case in the United States involving the former partners of KPMG. In the U.S. –v- Jeffrey Stein the trial Judge dismissed tax fraud charges against a number of former partners of the accountancy practice because he found that they had been deprived of their constitutional rights as a result of the prosecution, so it was alleged, pressuring the firm to stop funding the accused ex partners if they, themselves, wanted to arrange a satisfactory outcome for the firm as a whole. This case is currently under appeal.

There is surely something of a paradox where corporations which are almost always well funded, and which are anyway both immortal and immune to imprisonment, should be best able financially to take care of themselves; whereas, loyal and long serving officers or employees can find themselves exposed to the vagaries and uncertainties of a criminal justice system made more oppressive by the prospect of enforced entry into plea negotiations without adequate professional assistance.

d. Funding may be provided by third party well-wishers. In practice these usually turn out to be few in number, and the suspect’s previously dependable close friends who, if their emotions and wallets are still engaged, would prefer to provide for the suspect’s dependents than enrich a bunch of lawyers.

e. The Public Purse. Little comfort may perhaps be derived from the Attorney

07the barrister

The decision to put the Old Bailey’s cases online reveals that until the mid-19th century judges and juries at that Court could sometimes get through three whole trials

in a day. True, few, if any, accused were represented, but still, such efficiency must inspire those in Whitehall anxious to see a return to such judicial efficiency.

While the inconvenient intervention of representation by counsel, and the necessary complexities of modern fraud cases make this rate of progress a little ambitious, there can still be discerned in the Attorney General’s recent consultation paper, a wish perhaps that this was not the case.

The plain fact is that full-blown fraud trials, with all their guarantees of due process, are no longer seen as affordable. No-one would argue against early dialogue between prosecution and defence, but only if both parties to such dialogue are equally matched in experience and expertise, and both know the strength of the Crown’s case and, indeed, such weaknesses as are known only to the Crown. The preservation of the burden of proof, and the presumption of innocence both impose fundamental constraints on consensual or collaborative justice. That we are in danger of forgetting this truism is due to the failure of successive Governments to implement coherent policies for policing white collar crime. Indeed, this omission is true across the whole criminal calendar.Instead, we have had decades of Royal Commissions, Law Commissions, Working Groups, and One-Man Enquiries, all recommending piecemeal remedies, of which some have been adopted and others ignored, often for reasons of financial economy.

We have been left with a plethora of prosecution agencies, interpreting policies in their own individual ways while dealing with a problem, the increasing threat from large scale fraud, inefficiently and with horrendous losses to the Revenue and the legitimate

economy. We have grafted on ideas from the inquisitorial systems of our European neighbours and borrowed others from civil jurisprudence, while all the while diminishing investigative resources and failing to send a clear signal to those contemplating the commission of these serious crimes. Whether one is caught, and if caught prosecuted at all, has become even more of a lottery than is any way inevitable in a free society governed by the rule of law.

Any reform, particularly one as drastic as introducing negotiated justice must, I believe, be accompanied by an assurance that it would not diminish the public’s trust in the fair and even-handed dispensation of criminal justice. It must be part of a coherent policy which makes transparent why some white collar crime, even when discovered, is met with civil or administrative penalties, while others are not. None are victimless crimes, so why are some visited with naming and shaming, others by financial penalties, and the remainder by criminal sanctions. Why, even after the latest Government Fraud Review, would the reporting of fraud only be encouraged rather than be made mandatory. Why will only some of our 43 police forces be adequately resourced to investigate fraud.

Is it enough to concentrate on the comparatively small number of fraud cases that are brought before the Courts and then either put the blame for the acquittals of some on the ignorance or credulity of juries, or on the absence of a formal plea bargaining regime.

If the answer is that some reform is better than no reform, should we not be astute in assuring that any measures introduced can be seen to be fair rather than just efficient in terms of saving time and money. The Consultation Paper records the extraordinary statistic that in the USA 98% of all criminal cases are resolved by some form of negotiating plea. At the same time, the Chairman of the Fraud Review Working Group is quoted as saying that the proposed UK reform is but a

“distant cousin” of the US system. If this is meant to reassure, it does not. It may be enough to echo the words of the Lord Justice of Appeal in a recent extradition case, when he commented unfavourably on negotiations with a prospective extraditee as follows: “We make no secret of the fact that we view with a degree of distaste the way in which the American authorities are alleged to have approached the plea bargain negotiations. Viewed from the perspective of an English Court, the notion that a prosecutor may seek to induce a plea of guilty on the basis that substantial benefits will be withdrawn if one is not forthcoming is an anathema”.

Indeed Stephen Hockman QC is reported as conceding: “In America, defendants sometimes are coerced into pleading guilty because of the huge sentences that are available to Judges on a guilty verdict, which makes it too dangerous to contemplate a full trial”. Any threat of the deprivation of liberty is huge, but particularly so when an innocent accused is terrified or coerced into pleading guilty with a promise, perhaps, of no custodial sentence. Only the most complacent would believe that our criminal justice system has been, or will become, so perfect that there will be no significant number of innocent persons who plead guilty for a variety of reasons, coercion being not the least of them.

Mr. Hockman goes on to say: “The proposals for England and Wales have the advantage that they do not require parliamentary legislation and can be introduced relatively easily under existing law”. Far from applauding this shortcut, should we not be alarmed by yet another example of parliamentary debate being denied to a fundamental change in our criminal justice policy, particularly when the safeguards which the committee and the Attorney General accept are necessary may not, in reality, be put in place.

There is an acknowledgment in both the Committee’s recommendations and the Consultation Paper that anyone entering upon a plea negotiation must receive legal

Fraud trials: Plea negotiation- Plea Bargaining Any reform, particularly one as drastic as introducing negotiated justice must, I believe, be accompanied by an assurance that it would not diminish the public’s trust in the fair and even-handed dispensation of criminal justice

By Monty Raphael, joint head of the Fraud and Regulatory department, Peters & Peters

08 the barrister

General’s assurance that legal aid will be available because, firstly, it may not be available to cover all the advice required, secondly, if it is, it is certainly not going to provide adequate remuneration sufficient to attract the sort of expertise and experience that is necessary to provide adequate support to a party to plea negotiations. Here again, one must recall the recent confiscation proceedings which collapsed because the legally aided accused could find no senior member of the bar who was willing to undertake the work at the rate offered by the public purse.

Readers of the Barrister will only be too aware that the number of law firms and members of the Bar continuing to offer publicly funded advice and representation in serious and complex fraud matters has significantly diminished, and is likely to diminish further as the full impact of the Carter Review becomes ever more apparent.

It is hypocritical to imply that the American system of plea bargaining is not an example to be followed, while introducing many of its features and exposing a suspect to many of the imperfections of their system. 98% pleas

of guilty in a legal system, where the less well off (the majority) have to use a publicly funded service which, while not universally bad, is acknowledged to significantly fail to provide basic safeguards, and where the system is coercive in the extreme is not a relative to claim even as a distant cousin.

Being able to engage with the prosecution in white collar cases is a laudable reform, but only if it is not implemented as a cheap and inadequate bureaucratic convenience which provides few, if any, safeguards for all, save the unrestrained rich and well funded corporate client.(The views expressed in this article are those of the author alone, and do not necessarily represent those of Peters & Peters, or the Fraud Advisory Panel)

© MONTY RAPHAEL 2008Monty has been with Peters & Peters throughout his legal career, which spans over 40 years. Senior Partner until 30 April 2005, he now remains with the firm as full-time consultant and is joint head of our Fraud and Regulatory department. He is widely acknowledged as one of the UK's leading fraud lawyers

Pro bono work has long been

considered the sine qua

non of a career in law. The

head of pro bono at Clifford

Chance, Michael Smyth,

has stated that “I regard

pro bono activity as the lawyers' equivalent

of the Hippocratic oath”. However, after a

turbulent decade of government reforms to

legal services, it is perhaps worth taking a

moment to reflect of the current and future

role of pro bono work in the legal profession.

Despite the overall fall in levels of litigation

since the reforms of Lord Woolf, there are still

a considerable number of cases which exist

outside the realm of the publicly-funded legal

services market. The number of these cases

may well be set to rise given the problems

with the various proposals made by the Legal

Services Commission, which have been raised

in these pages recently by the Chairman of

the Bar Council, Tim Dutton QC.

Labour’s reforms

The primary role of pro bono work is to

help those who lack the ability to pursue

justice either through private means or

the legal aid system. But to determine the

current relationship between funded and

unfunded legal work, it is necessary to

go back to 1996, when Lord Irvine, then

shadow Lord Chancellor, stated the principles

underpinning Labour’s support of pro bono

work. He argued that “there is no greater

unfairness than the legally unrepresented

applicant against the legally represented

employer in industrial tribunals”. Outlining

Labour’s law reform proposals in advance of

the 1997 general election, Tony Blair accused

the Conservatives of reducing the legal aid

coverage from 79 per cent of the population

in 1979 to just 48 per cent.

Despite this, and in stark contrast to the other

public services, legal aid was not set to receive

a large injection of funding. Lawyers watched

enviously as NHS spending increased from

£34.7 billion in 1997/98 to £90.7 billion in

2007/2008. Lord Irvine set the tone when he

noted that ‘Labour will have no new money

to throw at problems whose solution calls

for structural change’. Instead the focus of

the Woolf reforms was towards improving

alternative dispute resolution, encouraging

pre-trial settlement and better exchange of

information between parties. Pro bono was

seen as a key in the structural reforms that

were to take place over the next decade, with

the establishment of the Bar Pro Bono Unit by

Lord Goldsmith. The position of the Attorney

General’s Pro Bono Envoy was established,

and Mike Napier QC of Irwin Mitchell was

appointed to champion pro bono work.

Plugging the funding gap

Given the emphasis placed on the role of pro

bono, a cynic might be forgiven for concluding

that the government was attempting to rely

on the goodwill of pro bono lawyers, to take

up the slack from cases that would have

previously received legal aid. This view is

supported by the Conservative’s shadow

Attorney General, Dominic Grieve. “I have

always been extremely supportive of the need

for pro bono work, however, I have absolutely

no doubt that the government is using pro

bono to prop up other legal services”.

As he observes, given the sheer scale of

legally funded work in comparison with

pro bono, “the idea you can wheel out pro

bono to plug a hole in legal aid funding is

simply unrealistic”. This reliance is likely to

hit the larger city law firms hardest claims

Michael Smyth. “It seems logical to predict

that increasing pressure will be placed

on larger city firms to take up the slack in

terms of their pro bono responsibilities”.

However this view is strongly refuted by Mike

Napier. “The Attorney-General has always

made it absolutely clear inside and outside

Government that pro bono is not for plugging

holes in legal aid.”

Robert Gill, chief executive of LawWorks

(formerly the Solicitors Pro Bono Group) takes

a different view. "I agree that there is, and

there will always be a slight tension between

government funded legal aid and pro bono,

but this isn't something which should be

shied away from. Unmet need exists and

we try to help meet that need. Arguing over

who should pay or provide is of no help to the

person in need.”

Further problems

Nonetheless, as Dominic Grieve has

recognised, the tension between funded legal

work and pro bono can produce other types

of inequality. “One of the consequences of this

over-reliance is that firms are cherry-picking

the most interesting pro bono work available.

There is considerable anecdotal evidence that

this is impacting upon the uptake of more

routine work.”

The reality of this problem is one which is

already facing the larger city firms. Michael

Smyth argues that "I do worry that with

the Attorney Generals’ well intentioned

recommendation that up to ten per cent of

pro bono be earmarked for international

pro bono, that there will be a drift towards

glamour mandates. If American trends are

any guide, there will inevitably be a tension

between 'trophy pro bono' and traditional

For the greater good? Thom Dyke examines the role of pro bono work and looks at what the future holds for free legal representation.

09the barrister

The barrister magazine cannot accept responsibility

for information supplied by other parties, views expressed

may not necessarily be that of

the editor or publishers.

10 the barrister

'below the line' welfare advice".

The worry that firms will move towards only

taking on ‘trophy’ work is one shared by Kara

Irwin, Director of Pro Bono Services at BPP

Law School in London. “It is a concern, and

it is one that pro bono coordinators on the

whole need to be aware of in order to foster

a balance in the work done by the firms.”

However, these problems have to be weighed

against potential positive effects of taking on

high profile pro bono clients. “International

pro bono work can often capture the attention

of lawyers who might not otherwise be

involved in pro bono at all”.

Student pro bono

It’s not just well established city firms who

have seen changes in the type of work they

take on. As a young barrister, former Attorney

General Lord Goldsmith helped to found

a pro bono legal advice centre in Bethnal

Green in the 1970s. Today, law students are

entering an increasingly competitive legal

recruitment market and it has become more

important than ever to demonstrate a serious

commitment to pro bono work.

Paul Wilmshurst is an English barrister

currently working for McCarthy Tétrault in

Toronto Canada on a Middle Temple Fox

scholarship. He spent time volunteering at

Toynbee Hall’s legal advice centre during his

time as a student on the Bar Vocational Course.

“There are many barristers and solicitors

who began working at Toynbee as students

and there is a real sense of community bound

together by the common desire to help those

who come seeking help.”

However there are issues over how student

pro bono work is funded and supported

through institutions. Robert Gill notes that

“for every pro bono opportunity law schools

are able to offer their students, there are

seven or eight students they don't have

places for”. Law schools are increasingly

recognising the importance of ensuring

students have access to well supported pro

bono projects, by improving their links with

the many community law centres which

already exist, and through aiming to change

the academic culture which exists in some

departments. LawWorks are providing

assistance to universities as Robert Gill

explained. “One of our central challenges is

the need to overcome the notion that law is

a purely academic subject. We are working

hard to get across message that pro bono

is not just a distraction from the law, but

integral to it”.

Alternative Dispute Resolution

Given the pressures which have been placed

upon pro bono providers, they have been

quick to respond to changes in the nature

of the legal system. Following Lord Woolf’s

reforms, the increase for alternative dispute

resolution (ADR) has lead to a demand for pro

bono providers to start providing mediation

and arbitration services. As Robert Gill

states, “there is a growing perception within

the Ministry of Justice that mediation can be

used relieve pressure on the court system and

provide a more equable outcome. Mediation

is now part of the national legal fabric, and

pro bono mediation forms another part

of that natural order”. Given the concerns

raised over whether pro bono is being to

plug a funding gap for traditional litigation,

reliance on pro bono ADR should be treated

with caution.

Conclusion

It is clear that pro bono work will continue

to remain a vital part of the profession. Yet

serious questions remain as to what role it

should be expected to play in a constantly

changing marketplace. The government

would do well to reassure critics that it

is unequivocally committed to a vision of

pro bono services that run in parallel to a

properly funded legal aid system, rather than

as a substitute for it.

The author is a barrister.

Free Representation Unit

www.freerepresentationunit.org.uk

0207 611 9555

LawWorks

www.lawworks.org.uk

0207 929 5601

Law Centres

www.lawcentres.org.uk

0207 428 4400

Bar Pro Bono Unit

www.barprobono.org.uk

0207 611 9500

Toynbee Hall

www.toynbeehall.org.uk

0207 247 6943

11the barrister

12 the barrister 13the barrister

All or nothing? - An overview of restrictions on parents decision-making powers Parents with parental authority are overridden easily once the welfare principle and public policy are considered. The child is ultimately protected – whether by the state or by their call on the welfare principle.

By Penny Booth, Professor of Child and Family Law and Moyra Throssell, Postgraduate student Staffordshire University Law School

Twenty years ago statutes

referred to ‘parental rights and

duties’, ‘rights and authority’

of the parent or ‘parental

powers and duties’. The Law

Commission in Guardianship

and Custody (No172 in 1988) commented

that such terms were misleading and did not

promote the notion that parenting was more

a matter of responsibility than rights. They

preferred the term ‘Parental Responsibility’

and recommended its adoption into English

law. This also recognised the Recommendation

on Parental Responsibilities adopted in 1984

by the Committee of Ministers of the Council

of Europe in R(84) 4:

‘the modern concept according to which

parents are, on a basis of equality between

parents and in consultation with their

children, given the task to educate, legally

represent, maintain etc their children. In

order to do so they exercise powers to carry

out duties in the interest of the child and not

because of an authority which is conferred

on them in their own interests’

Thus was ‘born’ (though not conceived)

section 3 (1):

‘In this Act ‘parental responsibility’ means

all the rights, duties, powers, responsibilities

and authority which by law a parent of a

child has in the relation to the child and his

property.’

What is this thing called Parental Responsibility?

Inadequate definition of the term ‘Parental

Responsibility ’, the meaning of which now

changes on a case by case basis depending

on a number of factors including the age and

maturity of the child, and the lack of a list

of what these ‘rights’ actually encompass,

creates problems. Although in reality

the terminology change from ‘rights’ to

‘responsibilities’ this changes very little in

substantive law but represents a symbolic

shift in the mindset of what parenthood

might be composed. Lord Mackay LC in

introducing the Bill (502 HL Official Report

(5th Series) col 490.) said -

‘[Parental Responsibility]… emphasises that

the days when a child should be regarded as

a possession of his parents, indeed when in

the past they had a right to his services and

to sue on their loss, are now buried forever.

The overwhelming purpose of parenthood is

the responsibility for caring and raising the

child to be a properly developed adult both

physically and morally.’

Parental responsibility provides parents

with the required duties and rights to bring

children up, and, subject to state interest and

law, parents have the freedom to do what

they will in accordance with the welfare

principle. Despite a lack of definition, in

practice the courts have deliberated over

many different issues that are concerned

with a child’s upbringing and that list is by

no means exhaustive.

Who are the chosen few?

A child may only have two parents but more

people may have parental responsibility for

that child; in modern families perhaps the

only person ‘guaranteed’ to automatically

acquire parental responsibility is the mother

when she gives birth. Others may also acquire

parental responsibility and includes a father

in accordance with section 2 of the Children

Act 1989 and section 111 of the Adoption

and Children Act 2002, non-parents such

as those appointed as guardians or granted

a residence order, step-parents or local

authorities when a care order is granted in

accordance with section 31 of the Children

Act 1989.

……… and what do they have to do?All holders of parental responsibility to

consult and agree if the best interests of

the child are to be served, but this can

undermine the decision making abilities of

a parent and in reality there is no hierarchy.

On a daily basis the parent with whom a

child resides can make decisions without the

need to consult or seek agreement from other

interested parties, in accordance with s2(7)

of the Act. To do otherwise is complicated

and litigious, but it curtails the parental

decision making authority.

The trauma of medical decision-making

This is an area of child law where both the

child him or herself and/or the state can

intervene and halt decision making capacities

of those with parental responsibility. A

Gillick-competent child with sufficient

maturity and understanding has the ability

to make decisions for him or herself. This

parental authority where it is exercised only

lasts as long as the child needs protection

or assistance in making a decision. It does

not give a child ‘carte-blanche’ to effectively

‘divorce’ their parents on the basis of being

Gillick-competent. The case did lean towards

the empowerment of children but did not go so

far as to give complete child autonomy rights.

A number of factors in determining Gillick-

competency may be relevant. This includes

the child’s understanding of the moral and

family issues involved, as Scarman pointed

out in Gillick v West Norfolk and Wisbech

Area Health Authority [1986] AC 112 at 189.

The question of life experience may also

be relevant in determining competency. For

example, a child who has been raised in a

strongly religious home with little interaction

with other viewpoints is likely to be viewed

as living a relatively sheltered life and so not

judged to be competent. (See Re L (Medical

Treatment: Gillick Competency) [1998] 2 FLR

810.)

One type of situation where the state becomes

concerned involves cases of medical consent

where there is conflict between the child’s

wishes, the parents’ wishes and possibly

the medical profession’s wishes, particularly

in cases where a child refuses treatment. It

is not enough that a child may understand

the nature of their medical condition but

they must also have an understanding of

what the treatment entails and possible

side effects, similarly in refusing treatment

a child must show an understanding of the

consequences. In Re R (A Minor) (Wardship:

Consent to Medical Treatment) 1992 1

FLR 190 the Court of Appeal unanimously

sanctioned the treatment given to the child.

Lord Donaldson MR said, albeit obiter, that

Gillick had decided that a competent child

could consent to treatment but it did not

decide that a competent child could veto

treatment. It was his view that all those

with parental responsibility (and the court!)

reserved the right to consent to treatment

even of a Gillick-competent child. A child’s

power of veto was further scrutinised in Re

W (A Minor) (Medical Treatment: Court’s

Jurisdiction [1993] 1FLR 1). The limiting

effect of the first case in applying Gillick

was confirmed when a 16 year old refused

treatment without which she would die. The

differing factor here was that at that age the

girl had a statutory right in accordance with

the Family Law Reform Act 1969 section 8

to give valid consent. The question before

the court was whether the statute or Gillick

give the child a power of veto. The court held

unanimously that neither the precedent not

the statute gave such a power. A parent only

loses exclusive rights to consent on a child

becoming Gillick-competent and a court will

consider a child’s wishes but may dismiss

them in the best interest of the child. Re

W (A Minor) (Medical Treatment: Court’s

Jurisdiction) [1992] FCR 785 went on to state

that where a doctor wishes to treat a child

then he needs a ‘flak jacket’ of consent (see

John Eekelaar ‘White Coats and Flak Jackets

– Doctors, Children and the Courts Again’

(1993) 109 LQR 182) and this consent could

be given by either the parent or the Gillick-

competent child. Doctors are sufficiently

covered by the ‘flak jacket’ to avoid liability

in either criminal or tortious proceedings. In

Re M (Medical Treatment: Consent [1999] 2

FLR 1097) the refusal of a fifteen year old

to a heart transplant was overridden by her

mother consenting to the treatment; the Court

of Appeal authorised the treatment without

the need to consider Gillick-competency as

the ‘flak jacket’ had been provided by the

mother in the best interests of her daughter

and the girl’s views were therefore considered

(legally) irrelevant.

The state can override the wishes of those

with parental responsibility where they refuse

to consent to a child’s medical treatment.

Parents are not permitted to make martyrs

of their children (Black J, Re MM (Medical

Treatment) [2000] 1 FLR 224) and the courts

will authorise treatments where it is in the

best interest of the child and ultimately, the

state can intervene and substitute its own

decision in place of either parent or child

or both.

Can parents ‘pass the buck? Or have it removed?

Whilst parental responsibility cannot be

abandoned it can be delegated to others

and in some cases ‘extinguished’. The

status of special guardianship was created

by the Adoption and Children Act 2002

which amended the Children Act 1989 by

the insertion of ss14A-G governing special

guardianship orders. This gives the special

guardian parental responsibility for a child

while at the same time the child’s parents

retain their parental responsibility (although

greatly curtailed). A private law remedy

has been created to give a more permanent

status for non-parents where adoption is

not an appropriate option. The Explanatory

Notes to the 2002 Act say that a special

guardian once ordered by a court will, for

the duration of the order, take responsibility

on a day-to-day basis for the child and have

the ability and authority to make decisions

affecting the child’s upbringing without

the need, save in very few circumstances

(eg adoption), to consult with others with

parental responsibility. Such an order has

an impact on the decision making abilities

of those with parental responsibility and is

another example of how the state can take

steps to inhibit the rights of those holders

who are not deemed suitable to make

decisions in the best interest of the child.

The Children Act 1989 encourages a sharing

of parental responsibility so a local authority

(unlike a special guardian) is required to

consult and agree with others holding

parental responsibility. In order to safeguard

the welfare of the child however the Act does

permit the local authority to determine the

extent to which a parent or others holding

parental responsibility can exercise their

parental responsibility rights and duties in

section 33 yet a local authority cannot make

decisions to change a child’s religion, agree

to an adoption or appoint a guardian. This

mirrors the same extent of decision making

a sole carer with parental responsibility can

also undertake without the need to consult

other holders. There are clearly issues that

are too important to ignore parental wishes

and consultation, and agreement from all

holding parental responsibility is required

on the most fundamental issues affecting a

child’s upbringing.

Perhaps just some of it?

It seems to be that parental responsibility

as a concept comes second in importance

value to the welfare of the child and the state

retains the statutory right to restrain the

decision making abilities of all those with

parental responsibility if it considers the

holders unsuitable to make decisions in the

best interest of the child or to hold the child’s

welfare as paramount. It has been argued by

academic writers (eg John Eekelaar, ‘Parental

responsibility: State of Nature or Nature

of the State?’ [1991] JSWFL 37) that the

concept of parental responsibility represents

two ideas; the first being that parents must

behave dutifully towards their children and

the second that the responsibility for raising

children lies with the parents not the state.

The second idea in particular upholds the

notion of non-intervention and that raising

children is a ‘private affair’, yet the state

and the child can intervene in the process

of decision making. When a child acquires

sufficient capacity and maturity it is possible

that the child can make decisions that affect

his own well being; as a child grows older

he acquires more rights and responsibilities

and assumes more control over his decisions

yet is still afforded the protection of an adult

holding parental responsibility for him. It

can be perhaps envisaged as a set of balance

scales that as the child matures his rights

increase and the parents’ decrease until they

diminish. With this image it can perhaps

then be understood why the courts have

interpreted Gillick so restrictively; a child

may be competent prima facie to make a

decision affecting his own well being but he

may not have the capacity to understand its

affect on others at that moment or indeed

how such a decision would affect his future

status or even if he would feel the same

way in the future, so to tip the balance early

would be of detriment to the child’s welfare.

The state does recognise the private domain

of the family and is reluctant to involve

itself but holds the authority to intervene

in the name of protecting the welfare of the

child. In all the parents holding parental

responsibility do retain rights albeit limited

in some circumstances, and in this it can be

seen that the child, and moreover the state,

can limit the decision making abilities of

those holding parental responsibility.

14 the barrister

Fit for Purpose? The Review of Low Template DNABy Professor Allan Jamieson and Dr Rhonda Wheate, The Forensic Institute

The use of Low Copy Number (LCN) DNA in forensic science, and the criminal justice sys-tem, has been affected in the wake of Justice Weir’s ruling in the trial of Mr Sean Hoey

(The Omagh Bombing Trial)1 ; “I am not sat-isfied that the publishing of two journal ar-ticles describing a process invented by the authors can be regarded, without more, as having "validated" that process for the pur-pose of its being confidently used for eviden-tial purposes.”

So began a sequence of events that leaves the UK as one of the only adversarial justice sys-tems in the world to routinely use LCN DNA as evidence. Professor Brian Caddy recently released his much anticipated review of “Low template” DNA profiling2, a technique pio-neered by the Forensic Science Service Ltd® and used in thousands of prosecutions across Great Britain. The Review was commissioned and has now apparently been endorsed by the new Forensic Regulator in response to the intense criticism leveled at the technique and its purveyors, and voiced by Weir J in the Omagh Bombing Trial. His Honour found that there were “very many unsatisfactory matters” to do with the DNA evidence and LTDNA in particular. This article reviews the problems with LTDNA and explores how they have now been compounded by the Review, which in our opinion failed in its remit to the Forensic Regulator and has provided an un-sound basis for the continued use of LTDNA profiles in criminal prosecutions.

The LTDNA technique, at least so far as the UK and the Review are concerned, encompasses two different approaches to the recovery and analysis of extremely low amounts of DNA. The technique called LCN was developed and is currently sold by the Forensic Science Service Ltd®. Another technique, using a dif-ferent principle, was developed by LGC Fo-rensics Ltd. The standard DNA profiling kit used in the UK (SGM+) is designed and vali-dated to work using a specific amount of DNA (nanogram amounts, or 0.000000001g). Low Template DNA profiling pushes the amount of DNA used as a starting point to 1,000 times below that limit (picogram amounts, or 0.000000000001).

Three problems emerge from this extreme sensitivity. First, it is frequently impossible to know how such a small amount of DNA came to be in the place where it was discovered

and second, it is difficult to achieve repro-ducible results, and even then, to know what the results mean in terms of the contributing profile(s).

Transfer and ContaminationThe first problem arises because each of us has about 1014 cells in our body, each with a full DNA profile packed inside them. Eve-rywhere you go you leave your DNA, and your DNA goes places you have never been. DNA can be transferred from you to some-one else, and from that someone to someone or somewhere else that you may have never been. This process is called transfer. It is yet to be established how extensive transfer can be and what factors and influence it and to what extent. The LTDNA technique is there-fore very susceptible to identifying DNA that is not truly related to the crime under inves-tigation.

Furthermore, if crime scene samples are not handled using extremely thorough precau-tions, the risk of contaminating a sample with DNA from other crime scene samples, from police, from forensic scientists or from any-one who may have had (perfectly innocent) contact with the scene or sample is extremely high. The defence must now carefully exam-ine the continuity of such evidence (and in-deed this was a focal point of the outcome in the Omagh Bombing Trial).

ReproducibilityNo agreement exists, even among the few providers of the service, about how the re-sults of LTDNA profiling should be interpret-ed. In effect, the DNA profiles reported for LTDNA cases are likely to depend on which laboratory the material is sent to, which is clearly not the hallmark of a “robust” scien-tific technique3.

There is no doubt that current technology is capable of amplifying very small amounts of DNA, and certainly other laboratories have developed methods to do so. The question is whether we allow our enthusiasm for ground-breaking science to overcome the fundamental principles of good science – that a technique should be validated, reliable and reproducible. The Sally Clark case, the Bir-mingham Six and the Guildford Four are just a few of the cases which provide a stark re-minder of the weight which scientific evidence and experts can carry in criminal trials.

The ReviewThe Caddy review was released in April 2008. Despite the limited time frame and the fact that the review panel chose to consult only with the FSS Ltd® and the police, it conclud-ed that the FSS Ltd’s® LTDNA technique was “robust” and “fit for purpose”, although that purpose was never defined.

Worryingly, the contents of the Review read like a directory of the problems with, and shortcomings of, the LTDNA technique. Of even more concern is the fact that the con-clusions of the Review appear to ignore the contents in order to provide a completely un-justified clean bill of health to the technique. If this Review is to represent the scope and the depth of the work of the new office of the Forensic Regulator then we should not be optimistic for the future of the quality, and in particular the reliability, of science appar-ently approved by the Crown for use in Brit-ish courts.

The Review team did not consult anyone who had expressed contrary opinion on the merits of the FSS Ltd’s® LTDNA technique; in fact, the panel admitted to speaking with only the organisations selling the technique and to the police as ‘customers’. This is de-spite the Home Office’s own stated view that where commercial products are being “sold” to the police, “the police and others are not well placed to evaluate the quality of the serv-ice provided across the range of scientific dis-ciplines…there needs to be a mechanism to identify poor providers or services and pro-tect the police and Criminal Justice System (CJS) from them before procurement…and the police are not the only user of forensic science and the quality standards must reflect the needs of other stakeholders in the CJS4.”

The degree of involvement between the FSS Ltd® and the Review is not clear, however a scientific report produced for a criminal ap-peal case by the FSS Ltd® in March 2008 contained the statement: “Preliminary indi-cations are that [the Review] makes no sig-nificant criticisms of the LCN technique”. This means that the FSS Ltd® and its staff had knowledge of the results of the Review at least three weeks prior to its release. This de-spite the fact that the Home Office specifically called for the Regulator to be “independent of any forensic science provider”,5 which presumably was meant to include the pur-veyors of the techniques and theories being scrutinised.

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15the barrister

When Rod Morgan resigned as Chair of the Youth Justice Board in January 2007 he made a number of striking comments about the failure of the Board and the Government to turn around the looming crisis in the youth justice system.By Sally Burnell, Nacro

Setting out some of the reasons

behind his decision to resign

in an article a month later,

Prof Morgan made reference to

the “low-hanging fruit” being

picked by the police to meet

Government-imposed targets, “the lowest of

which comprises juvenile group behaviour in

schools, residential homes and public spaces,

offences that could be dealt with informally,

more effectively, speedily and cheaply, and in

former times were”.

This phrase resonated across the youth justice

field. Morgan had summed up the concerns

of practitioners and academics alike: children

and young people were being criminalised

simply to make up the numbers.

Background

In 2002 the Government set the Home Office

a PSA (public service agreement) target to

“increase the number of crimes for which an

offender is brought to justice to 1.2 million

by 2007-08” (from a baseline of 1,002,204 in

March 2002).

Each of the 42 Local Criminal Justice Boards

reports its performance against PSA targets

to the National Criminal Justice Board. The

latest quarterly statistics reveal the target had

already been well exceeded before the March

2008 deadline. In the twelve months to

December 2007 there were 1.449m offences

brought to justice (OBTJ) – an increase of

45% on the baseline of March 2002.

Nacro, along with many other experts in the

criminal justice field, has long held the view

that the implementation of the OBTJ PSA has

resulted in increasing numbers of children

and young people entering the criminal

justice system, particularly younger children

and girls.

Since 2002 the issue has been raised by many

professionals citing both anecdotal evidence

and criminal statistics showing an increase

in the use of disposals usually reserved for

minor offences – cautions, penalty notices

for disorder (PNDs) and official warnings for

cannabis possession.

In its report into police funding in July 2007,

the Home Affairs Select Committee found that

the OBTJ figures in the 12 months to March

2006 included a high number of cautions and

PNDs: 38% were petty offences and only 53%

resulted in conviction.

The Committee

concluded that the

OBTJ target “is not

a good indicator of

success in relation

to the types of crime

which the public

fear most” and

recommended that

summary offences

be excluded from the

target.

By April this year

figures became

available to allow

us to take a much

more detailed look

at the impact of the

PSA target on the

numbers of children

and young people in

the criminal justice

system.

Nacro’s report Some

facts about children a n d

young people who o f f e n d

– 2006, published in April,

acknowledged that it is difficult to

ascertain the extent to which changes in

police practice to meet targets are responsible

for the inflation in the figures for detected

youth offending.

However, it found that it is possible to

hypothesise about the trends in youth crime

that might be expected if it were the case that

targets were perversely impacting on youth

crime trends.

Nacro identified three areas – types of

offences and populations of offenders – that

would likely see disproportionate rises in this

scenario:

o f f e n c e s

c o m m i t t e d

by younger

people; less serious

offending; and

offences committed by

girls.

In each of these areas the

young person might otherwise

have received an informal response

and a disproportionate rise in these

types of offences and offenders would

suggest that they were being targeted by

the police.

In all cases a comparison was made between

2006 (the most recent figures) and 2003 (the

first full year that the PSA target took effect).

The results are compelling, revealing a sharp

departure from statistical trends prior to the

introduction of the targets.

Not only was the review conducted on the ba-sis of an unsatisfactory consultation process, but there has been no opportunity for the in-ternational scientific community, nor anyone other than the three members of the Review panel, to assess the data claimed to support the validation of the technique. Many jurisdictions apply a series of tests to all scientific evidence before it is allowed into court:6 Has the science been tested? Has it been published and peer reviewed? Is the error rate of the technique measurable and known? Is the theory or technique generally accepted within the relevant scientific com-munity? Although these tests are not directly applied in the UK, this kind of scrutiny is used by the law to try to identify when a scientific technique or theory has not been properly verified or validated.

Except for the Netherlands, LTDNA profil-ing has not been purchased by any forensic science service providers outside the United Kingdom and is not used for evidentiary pur-poses by laboratories in any of the jurisdic-tions with equivalent legal systems to ours (such as the USA, Canada, Australia). Claims that the UK is simply leading the field are scoffed at by scientists internationally (and by some in the UK). Scottish and Irish state laboratories have no plans to introduce the LTDNA technique. The senior scientist at the FBI warned of the problems years ago. To suggest that the FBI and similar organisations have neither the resources nor the exper-tise to do what they already do, (as the LCN technique requires no more than the routine equipment), and that they have lagged behind for the last ten years, is stretching credibility to the limit.

Mixtures and InterpretationAmong several problems identified by critics, and repeated by the Review, DNA in foren-sic work frequently involves mixtures. Even standard DNA profiling methods (using large samples of DNA) present difficulties for scien-tists trying to determine how many contribu-tors there may be in a mixed DNA sample. The problems are exacerbated in LTDNA pro-filing when swabs are taken to detect samples which aren’t even visible to the naked eye. If further evidence was needed, the Regulator kindly provides it;“2.5.6. I agree there needs to be an agreed approach to the interpretation of suchprofiles. The intention will be to produce a single proposal which addresses the issues of stochastic effects and mixture interpretation. This will include, but not be limited to, the following:• the process by which the analytical results are interpreted to produce profiles;• the manner in which profiles, and

in particular mixed profiles, are interpreted to generate evidential weight;• the manner in which issues around transfer and persistence of DNA are ad-dressed;• the manner in which issues of ex-trinsic or contaminant DNA are addressed;• the way in which all of these factors are considered in relation to the circumstanc-es of the case;• the reservations or limitations that have to be considered and how these are to be reported to the court in the light of the case circumstances; and• the scientific and statistical basis for the approach adopted.”Only the devotee could, as stated by the FSS representative on Radio 4’s Today pro-gramme, consider this a ‘ringing endorse-ment’ of the method.

Despite this, the Review mentions mixtures only three times in 35 pages, and airily rec-ommends “more work” be done on the inter-pretation of mixtures. In these circumstanc-es, surely LTDNA profiling is far from being a “robust” technique that is fit for the purpose of identifying and prosecuting alleged offend-ers.

ConclusionsThe Review lacks sufficient authority to allow any weight to be attached to its findings un-til all of the defects identified by the Review and other scientists have been rectified, and the clear disagreements among providers and scientists nationally and internationally have been resolved. The Report can not be accorded any scientific significance until the data upon which the opinions are based are made available to all, and have met general scientific approval.

Even by the most generous interpretation, there is clearly no general agreement in the scientific community about the reliability of LTDNA analyses as performed by the FSS Ltd®. The most basic legal tenets regarding the acceptability of forensic science evidence in court, such as peer review, measurable er-rors and acceptance by the scientific commu-nity, have not been met in relation to LTDNA. The puzzling endorsement of LTDNA by the Review may now mean that the UK will see evidence presented that would not meet the standard of other comparable technologically and legally advanced systems.

The description of the LTDNA technique sold by the FSS Ltd® as “robust” or “fit for pur-pose” is a denial of the serious scientific ques-tions which remain about the reliability and validity of the technique. Taking the review as the ‘final word’ on the technique is an er-ror with potentially serious consequences for

the reputation of British science and for the Criminal Justice System.

The Home Office and CPS appear to have adopted an attitude of judging LTDNA (LCN) on a case by case basis. To paraphrase, “It’s evidence, Jim, but not as we know it.”

Professor Allan JamiesonDr Rhonda WheateThe Forensic Institutewww.theforensicinstitute.com

1 R v Hoey [2007] NICC 49 (20 December 2007).

2 The technique is also commonly called “Low Copy Number” (LCN) DNA profiling. The terms are used interchangeably in this document.

3 The National Measurement System Chemi-cal and Biological Metrology Website, part of the Department of Universities, Innova-tion, and Skills http://www.nmschembio.org.uk/GenericArticle.aspx?m=108&amid=586 states: “Analytical measurements made in one location should be consistent with those elsewhere. Why Is It Important? Disagree-ments between companies or other organi-sations over analytical measurements waste time and cost money. If a supplier and pur-chaser reach different conclusions about a product or a service in which they are trad-ing, both will have to bear costs in resolving their differences. The laboratories used may lose business or face legal costs if the dis-pute escalates. Regulations cannot be fairly enforced if the relevant analytical data show inconsistencies.”

4 Home Office Consultation Document “Stand-ard setting and quality regulation in forensic science” 31 August 2006 at para 12.

5 Home Office Consultation Document “Standard setting and quality regulation in forensic science” 31 August 2006 at para 23: “The core proposal is that the Regulator would be independent of any forensic science provider”.

6 For example, see Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

16 the barrister 17the barrister

18 the barrister

The Rule of Law is an ever-debated idea, a notion, depicting a symbolic ideal1

or institutional morality inherent in any constitutional democracy, seen to be of great

significance in the promotion of fair decisions and preventing abuse of power2. The Rule can be traced back as far as Aristotle and theories of Natural Justice and Divine Law; but even today interpretations are still attempted as to its exact meaning. As the development of the Rule owes chiefly to historical progression; it is necessary to start with Dicey’s 18853 interpretation due to the immense authority he still exercises over the perception of our constitutional arrangements4 . Dicey’s theory consisted of several detailed statements describing the English Constitution, however he highlighted three distinct elements regarding the Rule – remarked by others as echoing the common law principle that the executive cannot lawfully assume powers which are not known to the courts5, with some deriving from preceding theorists. Dicey’s theorem can be seen to be, firstly, an absence of arbitrary power on the part of the state – individuals ought not be subject to the power of officials wielding wide discretionary powers6 7; secondly, equality before the law8; and, thirdly, the supremacy of ordinary, or judicially made common, law9 – moreover the common law as guardian of the individual10 11 12 . Dicey’s authoritative interpretation must however be given requisite analysis and criticism in its application to society (past and present), as he was after all writing at a particular historical period with a particular political perspective13. Criticisms came from William Robson in 192814, echoed later by Professor Jennings in 193315, which drew attention to a contradiction to Dicey’s Rule in the ever-increasing discretionary powers (statutory and non-statutory) available to the Executive, now and in Dicey’s time, which are necessary to carry out their various functions 16 17. Moreover with reference to Dicey’s first principle, the term ‘arbitrary’ power has been questioned with regard to Dicey’s perceived scope of ‘arbitrariness’ due to modern governments’ wide ranging powers, some of which, arguably beneficially, affect the rights of the individual18. What’s more, if Dicey’s rule seeks to discount any

government department/public authority of any discretionary authority; no modern constitution can comply, as a body with some discretionary powers is unavoidable19, if not necessary, in a complex society such as todays. This is especially true in that modern legislation tends to be more open-textured, granting wide-ranging discretionary powers (for example to make subordinate legislation20), resulting in reduced power to the courts to control such activity – albeit despite judicial review21. It has been remarked however, in Jennings opinion, that Dicey’s views were based around the rights of the individual as opposed to powers possessed by public authorities22. Due to these intricacies, and Britain’s unwritten constitution; the Rule of Law is exceptionally important as against which the conduct of the government can be measured, albeit without forceful consequences.

There has also been copious criticism of Dicey’s second principle (‘equality before the law’) both in Dicey’s stated exemptions of soldiers and clergymen – although Dicey did not see any conflict with the Rule23; and also the evident inadequacy of this rule today. Dicey has clearly made exception for those with additional legal obligations but not those who have authorised legal immunity, for example, policemen; children under ten (doli incapax); foreign diplomats; judges; and MPs24. Moreover, legislature clearly distinguishes between certain categories of people (such as landlords - tenants, employer - employee, to name a few), assigning differing powers to each due to various social, economic or legal factors; not only in our British constitution but in other jurisdictions such as Canada, India and Germany25. It could also be argued that with reference to our modern social security law, anti-discrimination laws, and the Terrorism Act of 2000; certain races, ages, and genders are given unique rights26 in today’s society. In Dicey’s defence, it must be argued that such a varied, multi-cultural society as today, did not exist in Dicey’s time of writing, with his main differing demographic employment, or ‘social standing’. With regard to Dicey’s third principle, Dicey’s faith in the supremacy and power of ‘ordinary’/common law cannot be seen to apply, then or most noticeably now; as another of Dicey’s theories, Parliamentary Supremacy, openly conflicts with the supposed supremacy due to Parliaments unmistakable

ability to legislate in contradiction with Common Law principles or decisions as the State does not need express authority for its actions provided they do not breach common law or statute27.

“The willingness of the judiciary to uphold the Rule”28 , upholding Dicey’s second principle, is seen in their holding that even the Executive is not above the law29 30 as part of their duty to prevent their abuse of power, even extending to the staying a prosecution due to abuse of process 31. Moreover this is most prevalent post 199832 due to the Courts ability to declare a statute incompatible with the Human Rights Act33 thereby rendering the governments acts subject to increased scrutiny, beyond that of residual rights and liberties before the Act34. English Courts are also prepared to apply customary international human rights law35, moreover, with reference to cases involving perceived terrorist threats; the incorporation of the ECHR36 into our law has provided further status to the values underlying the Rule37. In recent years, senior judges have spoken extra-judicially on the Rule38, as for example Lord Hope stated that the Rule “is the ultimate controlling factor on which our constitution is based39”. The Courts however have not felt able, outside directly applicable EU law, to disapply law on the basis that it offends ‘the Rule’40 despite the Constitutional Reform Act 2005 laying down statutory recognition of the Rule of Law.

Despite arguments that many of Dicey’s notions are fallible and may have delayed the development in this country of a coherent public law, his genius was to recognise that our constitution contains unwritten implied principles41 which are arguably never outdated.

When Edward VII came to the throne in 1901, the constitutional function of a British monarch had been firmly settled but by the years immediately preceding the outbreak of the First World War, there was growing disregard for the established Rule of Law, mainly attributed to the irresponsible conduct of the majority in the Second Chamber42.

Furthermore following Dicey and considerable societal change; many others offered interpretations of the Rule, each arguably reflecting the developing diverse society. The Law Commission for example, in 1959, ruled the Rule

p.22

Is the Rule of Law dead in modern society?By Jemma Queenborough, first year Law (LLB) student and aspiring barrister, Cardiff University

Offences committed by younger children

There is much debate about the age of

criminal responsibility with many voices in

the field arguing for a raising of the age in

line with other European countries. Although

the age of responsibility currently stands

at ten, we might reasonably expect that

children at the lower end of the scale (those

aged 10 to 14) would be dealt with more

informally by the police.

Before the introduction of the OBTJ target

this was probably the case, but since 2003

there has been a disproportionate increase

in the number of younger children receiving

a formal sanction, which is consistent with

our hypothesis.

Analysis shows that there has been a

significant, age-related shift in the three years

since detected youth crime started to rise in

2003. While the number of young people

aged 15 to 17 who received a reprimand,

final warning, or conviction for an indictable

offence grew by 15.8% between 2003 and

2006, the equivalent increase for younger

children, aged 10 to 14 years, was 25.6%.

Seriousness of offence

As each recorded offence type covers a range

of behaviours, it is difficult to determine the

relative seriousness of offences committed

over a period of time. However, we are able

to use the legal distinction between summary

and indictable offences to make a judgement

about the gravity of the crimes committed.

If, as the hypothesis suggests, police targets

meant that less serious offences were being

dealt with formally to meet those targets we

could expect to see a disproportionate rise in

detected summary offences (ie less serious

offences) compared to indictable offences (ie

the most serious offences).

Again the statistics support the hypothesis:

between 2003 and 2006 detected summary

offences committed by young people rose

considerably faster than indictable offences –

38.9% against 19%.

In reality this might mean incidents such as a

child breaking a neighbour’s window with a

football being charged with criminal damage

rather than simply being asked to pay (or

more likely their parents being asked to pay)

for the repairs. It is a sledgehammer used

to crack a nut and sadly it can have a long

lasting and potentially devastating effect on

the child’s future.

Offences committed by girls

Girls are consistently less likely than their

male counterparts to come into contact with

the youth justice system, and as with younger

children we would expect them to be more

likely to be dealt with through informal

warnings and measures.

Between 2003 and 2006 girls’ detected

offending rose significantly faster than boys’

– a 31.7% increase compared to just 16%

– indicating a far more formal response to

girls’ misbehaviour in order to fulfil the PSA.

Other factors

Very little work has been done to consider

the impact of Safer Schools Partnerships

(SSPs), where police are based in schools, on

the number of children and young people in

the criminal justice system. Also launched in

2002 covering areas targeted by the Street

Crime Initiative, the scheme has now grown

to over 500 SSPs across the country. The

Government hails them as a huge success

and is encouraging all schools to get involved

in a partnership with their local police.

Existing analysis of the partnerships

understandably focuses on their impact

on truancy rates and crime and antisocial

behaviour in and around the school. More

work needs to be done to ensure that police

presence enhances the ability of schools to

deal with low level problematic behaviour

informally through mediation and other

restorative measures, and that it does not

become yet another way for children to be

dealt with more formally behaviour that

would previously have warranted an informal

in-school response.

Rather than being given search wands

and knife arches, teachers would perhaps

benefit more from better training in dealing

with misbehaviour and a belief that they

are supported in dealing with it themselves,

without recourse to the youth justice system.

Conclusion

Last year the YJB publicly acknowledged

that police targets are adversely affecting

their ability to reduce youth custody. The

Towards a Youth Crime Prevention Strategy

consultation paper said: “Although not

mutually exclusive, there is some tension

between the target for justice agencies to

increase the number of offences brought to

justice and our corporate target of reducing

the number of first-time entrants to the youth

justice system.”

This year the YJB had to admit that it not

only missed that corporate target to reduce

by 10 per cent the number of young people

in custody between 2005 and 2008, but it

has actually presided over a 10% rise in that

period as custody figures reached 2,942 in

March 2008.

The Board also acknowledges that it expects

the total number of children and young

people incarcerated will be even higher by

the summer.

In the consultation paper the YJB suggests

that the OBTJ target be refocused on

more serious offices; something which the

Association of Chief Police Officers has also

supported (and the Home Affairs Select

Committee, as outlined above). There are

also plans to increase the use of restorative

interventions and consider how they may be

counted against police performance targets.

Both of these proposals offer some small

hope to struggling youth justice practitioners

that their concerns are finally being listened

to. But as everyone involved in the criminal

justice field is painfully aware, the proof is

very much in the pudding and it will take

far more radical thinking to begin to turn

around the pervading culture of punishment

in this country.

Morgan’s article went on to reveal that in

recent years the YJB has had “no option but

to spend seven times as much on custody

as on early prevention schemes, the cost

benefits of which are proven”.

At some point surely the combination of such

compelling financial and moral arguments

for reducing custody must win out.

19the barrister

20 the barrister

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NEWS NEWS NEWS NEWS NEWS NEWS NEWS

NEWSROUND

UP

International Conference on Digital Evidence: 26th- 27th June 2008, LondonConference: Vintners' Hall, London Cocktail & Dinner: 26th June 2008, The Honourable Society of Gray's Inn

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Best Practice & Principles for Judges, Lawyers, Litigants & Technology, Security, Investigations & Digital Evidence Specialists…

Digital evidence is set to become the dominant form of evidence in legal proceedings. Judges, lawyers and in-house counsel and experts must rapidly recognise and respond to the changing environment.

MIS Training Institute in partnership with Stephen Mason is pleased to invite you to the dynamic inaugural International Conference on Digital Evidence, which will convene on 26th and 27th June 2008 at The Vintners’ Hall. This is the first conference of its kind to treat the subject in such a global context, and without the traditional sole focus on e-disclosure.

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BAR STANDARDS BOARD ANNOUNCES NEW DIRECTOR

The Bar Standards Board (BSB) has announced the appointment of Mandie Lavin as its new Director.

Ms Lavin, currently Director of Fitness to Practise and Legal Affairs at the Royal Pharmaceutical Society of Great Britain, will take up the post on 23 June.

Prior to joining RPSGB, Ms Lavin, a barrister, held senior roles at the Chartered Institute of Management Accountants and the UK Central Council for Nursing, Midwifery and Health Visiting (the predecessor organisation of the Nursing and Midwifery Council).

Commenting Ruth Evans, BSB Chair, said:'I am delighted that Mandie will be joining the BSB. She led a strong field of candidates and will bring to the role a broad background in regulation and a strong management focus.

Mandie’s experience and enthusiasm will be critical in driving forward our challenging programme of work to deliver high quality regulation of the Bar in the public interest'

Mandie Lavin said:‘I am thrilled about my appointment and look forward to building on the excellent work already undertaken by the Bar Standards Board.’

Hemant Patel, President of the Royal Pharmaceutical Society of Great Britain said: 'I would like to thank Mandie for her hard work and endeavours on behalf of the Society and the wider pharmacy profession. Mandie has made a significant contribution to the modernisation of the Society's fitness to practise procedures, work which will lay the platform for the creation of the new General Pharmaceutical Council. On behalf of the Society's Council I would like to wish Mandie all the very best in her new role.'

BVT could result in a shortage of criminal lawyers

Criminal legal aid lawyers will be at risk of extinction if best value tendering (BVT) is introduced as law firms abandon training programmes to cut costs, says the Law Society.

Figures obtained under the Freedom of Information Act reveal that on average only one new duty solicitor for every four criminal legal aid law firms was recruited last year*, and the Law Society fears a worsening crisis in legal aid as practitioners available to those who cannot afford representation will become even fewer under BVT.

Legal Services Commission proposals to introduce BVT into criminal legal aid procurement will force law firms to cut overheads such as train-ing to be able to offer low tenders.

Andrew Holroyd, president of the Law Society, says:'We could see a situation where the tendering process is so competitive firms have no choice but to abandon what is one of the most important elements of legal aid practice – the training of the next generation.''Even where training is maintained, there will be little in the pot to pay trainees. Numbers of new legal aid lawyers is already dangerously low and with the number of people being arrested and brought to justice rising, the need for these practitioners is high.'

Katherine Gibson, president of the Law Society Junior Lawyers Division, adds: 'Many young lawyers enter the profession because they want to work in legal aid and help those who might not otherwise have access to justice. These plans will effectively wipe out opportunities to train and work in legal aid and will deter many from entering the profession.'

'The knock on effect is that we will eventually see criminal legal aid solicitors become an extinct breed, leaving those in need of legal advice and representation without a voice.'

The Law Society points out that it might not be just new recruits who suffer as a result of BVT. Those already practising face new threats.Andrew Holroyd says: 'There is already a battle for talent in the legal profession. Legal aid practices will struggle to hold onto their staff and put in a competitive enough tender at the same time. It could easily be a choice between one or the other.''There is a misconception that everyone in the legal profession is handsomely rewarded. Many of those firms working in legal aid are already stretched and cannot pay staff well. BVT could worsen the situation.'

Bar Council Working to Design New VHCC Scheme

The Bar Council has been working hard to design a VHCC scheme which would come within budget, but would ensure proper remu-neration for members of the Bar. Complex data has been analysed for this process by Professor Martin Chalkley.Further details are provided in the Chairman's Letter dated 2 May 2008.http://www.barcouncil.org.uk/assets/documents/DOC080502VH-CCS.pdf

First Manchester Legal Executive Advocate Takes Centre Stage

Stuart Cartwright, a Legal Executive lawyer in the Crime and Regulation Department of Manchester law firm, JMW Solicitors is one of the first Legal Executives in England & Wales to be trained as a defence Legal Executive Advocate, and is now preparing to make his first ap-pearance in court.

As a Legal Executive Advocate, Stuart will be able to offer a seamless service to clients taking their case right through to the magistrates court and, in the case of appeal and bail applications, the Crown Court without the need to instruct a solicitor, something ILEX Fellows have not been able to do in the past.

In October 2007, Altior Training, based in Cardiff, became the first ILEX accredited organisation to deliver training courses and assessments to members enrolled under the revised ILEX Advocacy Qualification Scheme. Over 400 ILEX Fellows and Members have already expressed an inter-est in obtaining rights of audience and in the training to become advocates

"I am proud to have obtained rights of audience and to have qualified as an Advocate,” says Stuart. “This is the end of a very long road for myself and the Institute of Legal Executives and I would encourage anyone in a similar position to grasp the opportunity to take the Advocacy course. I found the course extremely challenging but equally rewarding and hope to play my part in putting Legal Executive Advocates firmly on the map."

Prior to enrolling onto a course, Fellows and Members have to apply to ILEX for a Certificate of Eligibility which requires them to show that they have the necessary level of legal knowledge and experience before they can undertake the six-day course.

“I am delighted that Stuart is one of the first Legal Executive Advocates to complete the training course and is now ready to hone his skills in court ” said ILEX President, Lesley Graham, who is also based in Manchester. ”And I am sure he will be the first of many.”

“Extended Advocacy rights are something which ILEX has campaigned long and hard for. The expertise and knowledge of Legal Executives has long been recognised and Rights of Audience is the first of many forthcoming important changes within the legal profession that affect ILEX members and will enable them to broaden their areas of practice and status.”

LSC publishes 'route map' for civil legal aid

As part of the settlement with the Law Society, the Legal Services Commission (LSC) has published what it describes as a 'route map' for civil legal aid for the next five years. Current civil contracts will run to March 2010 and amendments to the contract will be restricted to ‘give stability’ to providers. From September 2008, the LSC will consult on the terms of a new civil contract which is intended to run from April 2010 to 2013.

In a move that is likely to impact on family barristers, the LSC will seek to change the anomaly in family graduated fees which means that, cur-rently, barristers receive different payments for cases than solicitors. The report said that there are plans to review the operation of graduated and fixed fees. The LSC wants to reduce the number of exceptions and to introduce more graduated fees; this would cut down on the need to cost exceptional cases.

While the agreement with the Law Society guarantees that best value tendering (BVT) across all face-to-face civil legal aid contracts will not be-gin until 2013, the LSC is adamant that it sees BVT as the ‘best way’ forward for civil legal aid services. A trial in two or three geographical areas for face-to-face services will take place to inform a consultation for the LSC’s proposals for the roll-out of BVT for civil legal aid.

Civil legal aid contracts: the next five years is available at:http://www.legalservices.gov.uk/docs/civil_contracting/civil_route_map_100408.pdf

NEWSROUND

UP

Review of Criminality Information (ROCI)The independent Review of Criminality Information (ROCI) is examining how information about criminals and criminality can be better recorded, used and shared in the interests of public protection.

For these purposes, criminality information is any information which is, or may be relevant to the prevention, investigation, and prosecution or penalising of crime.

This independent review, led by Sir Ian Magee, aims to make recommendations which, as well as improving the safety of the public, will increase the efficiency of the whole public protection system and provide direct benefits for staff on the front line.

Further information is available on the Home Office Police website.http://www.police.homeoffice.gov.uk/operational-policing/review-criminality-information/

21the barrister

22 the barrister 23the barrister

of Law as a ‘dynamic concept which should be used as a safeguard and to advance the political and civil rights of individuals within a free society’.

The most notable attempts however emanate from more recent times, in the 1970s which, whereas Dicey’s Rule operated in terms of abstract rights and duties, formal equality and formal justice; new attempts address concrete issues and questions of substantive equality and justice43. FA von Hayak in 1971, echoed Dicey’s perspective44 however exceeded him in attempting to set out the form and content that legal rules need comply with to be compatible with the Rule, therefore implying “limits on the scope of legislation” to general laws, applying to all and benefiting none in particular. Hayak heavily criticised the present situation regarding efficiency, individuals should be given leave to make their own choices; and also morality, since their freedom is inescapably restricted. It has been remarked however that Hayak’s views stem from that of the Rechtsstaat due to his Austrian background, thereby perhaps incorporating a more continental viewpoint45. The Marxist Historian prevalent in 1975, EP Thompson, was – although congruous in his belief that the Rule is an “unqualified human good” (despite being conversely left-wing) – particularly concerned about State control in the legislative process to undermine civil liberties in the pursuit of its own concept of public interest therefore further than demanding the law be of limited scope, required a limiting of State power46. Joseph Raz, in 197747, however, in contrast to those before him recognised the importance of government aswell as law, and that the attainment of particular social goals may require both general and particular laws – differing starkly from Hayak. Raz did however develop Hayak’s interpretation in that he stressed the purpose of the Rule to be ‘a guide to the individuals’ behaviour’, albeit also criticising him for disguising a political argument as a legal one. Despite sharing preceding concerns surrounding discretionary State power; some of the most important principles to be derived from Raz’s interpretation were that that law should be prospective48/proactive, with the individual able to adapt their behaviour to comply with the law; the law should be flexible but stable and clear49 to avoid confusion; the independence of the judiciary be guaranteed to avoid bias and undue influence; and also the Aristotelian principles of Natural Justice be observed50. Unger’s interpretation, in 1976, loosely followed on from Razs’ ideas of autonomy, viz the freedom of the judiciary from any external pressure, as is a prevalent

demand today; and also generality, law applying equally to all – thereby echoing the Dicey. He did however criticise the development of the Rule as a product of Western Capitalist society, thereby arguably echoing the German sociologist Max Weber51. Weber’s interpretation can be seen to strengthen Raz’s recognition of the importance of the government, however echoes Raz and Unger in his belief that the State should ‘set goal posts’ leading to judicial autonomy52.

According to Dicey, the Rule of Law was one of the key features which distinguished the British, or ‘English’ as he preferred53, constitution from its continental counterparts; a “democratic from a despotic constitution”54. It can however been seen in modern understanding that the Rule of Law is no longer, as Dicey would say, ‘unique’ to the English constitution but can be seen to have been integrated into many other countries, even establishing a role in the European Union55 shown as the ECJ56 ruled that “the Community constitutes a new legal order…” (…for the benefit of which the States have limited their sovereign rights”) which has been compared to a “Community Rule of Law” due its role in ensuring individuals certain rights protecting against the arbitrary use of power, not only national government, but by the Community57.

Formally the strength of the Rule of Law in Britain had emanated from its universal acceptance and from the ardent desire of the people to preserve it unblemished58 however due to recent measures to combat the threat of terrorism59, and seemingly increasing State control; it could definitely be suggested that we, as a society, are contradicting all Dicey, and others’, carefully placed theories. For example, in modern understanding there have been many breaches of the arguably indefinable Rule. In Britain, examples include Northern Ireland in the 1990s with the questionable operation of the Diplock Courts; the effects of the abrogation of the right of silence; allegations of ill-treatment by detainees of the Royal Ulster Constabulary; and the Casement Park trials60 61 . It could be argued that due to society’s ever changing moral and social values, the Rule of Law will either become obsolete, merely a historical notion; or inevitably must continue to change as we do. “It would however be utterly fallacious to conclude that the Rule of Law in Britain will be in any real or immediate danger so long as the leaders of national life and the ordinary men and women in the street retain their ardent passion for democratic freedom, and the infinite regard for constitutional

government which they have inherited from their forbears”61.

1 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd, 2004) 152 Jeffrey Jowell, ‘The Rule of Law and its underlying values’, in ‘The Changing Constitution’ (6th ed, O.U.P., 2007)3 ‘Introduction to the Study of the Law of the Constitution’4 Jeffrey Jowell, ‘The Rule of Law and its underlying values’, in ‘The Changing Constitution’ (6th ed, O.U.P., 2007)5 Entick v Carrington (1765) 19 St Tr 1029, in, Bradley & Ewing, ‘Constitutional and Administrative Law’ (14th ed, Pearson Education Ltd, 2007) 96 6 Dicey – “no one is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established by before the ordinary courts of the land”.7 R v Inland Revenue Commissioners, ex parte Rossminster Ltd (1980) AC 952 (CA) in Allan & Thompson, ‘Cases & Materials on Constitutional and Administrative Law’ (2005, O.U.P., Oxford)8 Case of Wolfe Tone (1798) 2 St.Tr. 614; and Stroud v Badbury (1952) 2 All ER 76 in R. F. V. Heuston, M.A., ‘Essays in Constitutional Law’ (1964, Stevens & Sons, London)9 Dicey – Constitutional Law “is the result of the judicial decisions determining the rights if private persons in particular cases brought before the courts”10 Derbyshire CC v The Times Newspapers Ltd (1993) A.C. 53411 Art O’Brien (1923) AC 603 in R.F.V. Heuston, M.A., ‘Essays in Constitutional Law’ (1964, Stevens & Sons, London)12 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd, 2004) 1513 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd, 2004) 1514 In his book, ‘Justice and Administrative Law’15 ‘The Law and the Constitution’ in Neil Parpworth, ‘Constitutional & Administrative Law (4th ed, O.U.P., 2006)16 Liversidge v Anderson (1942) AC 206 in R.F.V. Heuston, M.A., ‘Essays in Constitutional Law’ (1964, Stevens & Sons, London)17 Neil Parpworth, ‘Constitutional & Administrative Law (4th ed, O.U.P., 2006)18 Bradley & Ewing, ‘Constitutional and Administrative Law’ (14th ed, Pearson Education Ltd, 2007) 9819 Bradley & Ewing, ‘Constitutional and Administrative Law’ (14th ed, Pearson Education Ltd, 2007) 9720 See Donoughmore Committee - Report of the Committee on Ministers’ Powers (1932) Cmd 4060

21 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd, 2004) 2022 Neil Parpworth, ‘Constitutional & Administrative Law (4th ed, O.U.P., 2006)23 Neil Parpworth, ‘Constitutional & Administrative Law (4th ed, O.U.P., 2006)24 Neil Parpworth, ‘Constitutional & Administrative Law (4th ed, O.U.P., 2006)25 Bradley & Ewing, ‘Constitutional and Administrative Law’ (14th ed, Pearson Education Ltd, 2007) 9826 Bradley & Ewing, ‘Constitutional and Administrative Law’ (14th ed, Pearson Education Ltd, 2007)27 Malone v Metropolitan Police Commissioner (No. 2) (1979) Ch.344 in Spencer and Spencer, ‘Nutcases – Constitutional and Administrative Law’ (4th ed, Sweet and Maxwell, 2006, London)28 Neil Parpworth, ‘Constitutional & Administrative Law (4th ed, O.U.P., 2006)29 R v Secretary State for the Home Department ex parte Pierson (1998) AC 539 in Allan & Thompson, ‘Cases & Materials on Constitutional and Administrative Law’ (2005, O.U.P., Oxford)30 M v Home Office (1994) 1 A.C. 377 in Allan & Thompson, ‘Cases & Materials on Constitutional and Administrative Law’ (2005, O.U.P., Oxford)31 R v Hourseferry Road Magistrates’Court Ex p. Bennett (1994) A.C. 42 (HL) in Spencer and Spencer, ‘Nutcases – Constitutional and Administrative Law’ (4th ed, Sweet and Maxwell, 2006, London)32 Human Rights Act33 s.4 Human Rights Act 199834 Neil Parpworth, ‘Constitutional & Administrative Law (4th ed, O.U.P., 2006)35 R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No. 3) in Spencer and Spencer, ‘Nutcases – Constitutional and Administrative Law’ (4th ed, Sweet and Maxwell, 2006, London)36 European Convention of Human Rights37 Starrs v Ruxton (2000) SLT 42 in Allan & Thompson, ‘Cases & Materials on Constitutional and Administrative Law’ (2005, O.U.P., Oxford)38 Lord Bingham, ‘The Rule of Law’, (Sir David Williams Lectures, Cambridge, December 2006); Sir John Laws, ‘The Rule of Law: Form and Substance’, (London School of Economics, November 2006)39 Jackson v Her Majesty’s Attorney General (2005) UKHL 56 at 107 40 Jeffrey Jowell, ‘The Rule of Law and its underlying values’-‘The Changing Constitution’ (6th ed,O.U.P.,2007) 1741 Jeffrey Jowell, ‘The Rule of Law and its underlying values’-‘The Changing Constitution’ (6th ed,O.U.P.,2007) 1742 Anthony Babington, ‘The Rule of Law in Britain from the Roman Occupation to the

Present day’ (Barry Rose Publishers, 1978)43 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd,2004) 1844 In that “government in all its actions is bound by rules fixed and announced beforehand” ‘The Road to Serfdom’ in Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd,2004) 1645 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd,2004) 1646 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd,2004) 1847 ‘The Rule of Law and its virtue’ (93 LQR 195)48 Phillips v Eyre (1870) 6 QB 1, Exchequer Chamber in Allan & Thompson, ‘Cases & Materials on Constitutional and Administrative Law’ (2005, O.U.P., Oxford) 49 Merkur Island Shipping Corp v Laughton and Others (1983) 2 AC 570 (CA) in Allan & Thompson, ‘Cases & Materials on Constitutional and Administrative Law’ (2005, O.U.P., Oxford)50 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd,2004) 1951 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd,2004) 2052 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd,2004) 2053 Jeffrey Jowell, ‘The Rule of Law and its underlying values’-‘The Changing Constitution’ (6th ed,O.U.P.,2007) 654 Jeffrey Jowell, ‘The Rule of Law and its underlying values’-‘The Changing Constitution’ (6th ed,O.U.P.,2007) 555 Gary Slapper and David Kelly, ‘The English Legal System’ (7th ed, Cavendish Publishing Ltd, 2004) 1556 European Court o f Justice57 Lord Mackenzie Stuart, ‘The E u r o p e a n Communities and The Rule of

Law’ (The Hamlyn Lectures, 29th series, London, Stevens & Sons, 1977)58 Anthony Babington, ‘The Rule of Law in Britain from the Roman Occupation to the Present day’ (Barry Rose Publishers, 1978)59 A & Others v Secretary of State for the Home Department (2004) EWCA Civ 1123, (CA) ‘Cases & Materials on Constitutional and Administrative Law’ (2005, O.U.P., Oxford)60 The Haldane Society of Socialist Lawyers, ‘Upholding the Rule of Law – Northern Ireland: criminal justice under the “emergency powers” in the 1990s’ (1992, London)61 See also, Inaugural lecture by Prof. M. J. Goodman, M.A., PhD, ‘The Rule of Law in Twentieth-Century Britain’ (1973, University of Durham)62 Anthony Babington, ‘The Rule of Law in Britain from the Roman Occupation to the Present day’ (Barry Rose Publishers, 1978)

p.19

25the barrister

'No further action' on cohabitation: a missed opportunityBy Jane Craig, on behalf of the Family Justice Council. Jane Craig is Head of Family Law at Manches LLP and is a Private Law Solicitor Member of the Family Justice Council.

The Government’s recent

long awaited response

to the Law Commission’s

July 2007 Report -

Cohabitation: The

Financial Consequences

Of Relationship Breakdown - was received

with considerable disappointment, and

even dismay, in many quarters. The Report

recommended the introduction of new

legislation to protect cohabiting couples

on relationship breakdown. After a wait

of nine months, the Minister for Justice,

Bridget Prentice, made a written ministerial

statement on 6th March 2008 in which she

praised the Commission’s “…thorough and

high quality report…” – but went on to say

that “…for the time being, the Government

will take no further action...”

The Minister said that the Government wants

to seek research findings on the cost and

efficiency of the Family Law (Scotland) Act

2006, which came into force in Scotland in

2007, before deciding whether to implement

the Law Commission’s recommendations.

This decision seems timid, however, given

the breadth of the work undertaken by the

Law Commission and the high level of public

support in England and Wales for reform of

the law in this area.

Anyone who has read the Law Commission’s

Report in its entirety (all 204 pages of it) will

know how much care and thought went into

its recommendations. A detailed Consultation

document was published the previous year

and there were responses from a very wide

range of individuals and organisations.

The Commission considered the legislative

provision for cohabitants in numerous other

jurisdictions, to see what could be learned

from the experiences of those in other

countries. It took account of the findings

of recent research projects. Two of these

projects examined outcomes for cohabitants

following separation under the current law,

with or without the assistance of lawyers

and courts: R Tennant, J Taylor and J Lewis

Separating From Cohabitation: Making

Arrangements For Finances And Parenting

(2006) Department for Constitutional

Affairs Research Report 7/2006 and G

Douglas, J Pearce, H Woodwood, A Failure

Of Trust: Resolving Property Disputes On

Cohabitation Breakdown (2007). Another

study examined the impact of information

obtained by cohabitants who have visited

the Living Together Campaign website – A

Barlow, C Burgoyne, J Smithson, “The Living

Together Campaign – An investigation of

its impact on legally aware cohabitants”

Ministry of Justice Research Report (2007).

The Commission also took account of some of

the findings of the most recent British Social

Attitudes Survey, to which it had access prior

to publication of its Report.

The conclusion drawn from all of this detailed

work was unambiguous: there is a clear and

urgent need for reform of the law in this

area.

Findings from the British Social Attitudes

Survey published by The National Centre

for Social Research in January 2008 showed

that there is strong public support for legal

reform so that cohabiting couples in certain

circumstances are treated similarly to

married couples. Public support for treating

married and cohabiting couples increases as

the relationship lengthens, particularly when

children are involved: nine out of ten people

think that a cohabiting partner should have

a right to financial provision on separation if

the relationship has been a long-term one,

includes children and has involved prioritising

one partner’s career over another.

The rise in cohabitation

The Office for National Statistics reported

earlier this year that marriage rates are the

lowest they have been for 110 years. Year

on year more people are choosing to cohabit.

According to the Government’s Green Paper

“Parental Separation: Children’s Needs and

Parents Responsibilities” (2004), from 1991

to 2001 the number of married couples with

dependent children fell by 13% while the

number of cohabiting couples with dependent

children rose by 102%.

There are now over two million couples

cohabiting in the UK. Nearly three quarters

of a million of such couples have a dependent

child or children and there are one and

a quarter million children dependent on a

cohabiting couple. It is predicted that by

the year 2031, one in four couples will

live together without marrying. The law

needs to be reformed so the vulnerable can

be protected, when the inevitable happens

some of these cohabiting relationships break

down.

The current legal remedies for

cohabitants

The court has no discretionary power to make

orders when cohabitants separate, to deal

specifically with the financial consequences

of relationship breakdown. There are certain

statutory remedies available in certain limited

circumstances, such as occupation orders and

tenancy transfers under the Family Law Act

1996, applications under the Child Support

Acts and applications for capital provision

and periodical payments for children under

the Children Act 1989, but when these do not

apply, the courts have to use the general law

of contract, property and trusts.

The result of this is that when cohabiting

couples separate and seek legal redress

they are faced with complex legislation, the

arcane remedies of implied, resulting and

constructive trusts and proprietary estoppel,

uncertain outcomes and potentially high costs

that can exceed those of a fully contested

divorce.

The “common law marriage” myth

The myth of the “common law marriage”

remains prevalent, despite the best efforts

of the Government funded “Advice Now”

campaign. The British Society Attitudes

Survey found that 51% of the population

still believe (wrongly), that there is such a

thing as a “common law marriage” which

gives cohabitants the same rights as married

couples. Only four in ten people correctly

know that this is untrue. This is almost

identical to the proportion of people who

thought this in 2000, despite the Advice Now

campaign and despite all the media attention

that this issue has had.

Interestingly, cohabitants are no more or

less knowledgeable than anyone else: 53%

of cohabitants still believe that “common

law marriage” exists, and 39% correctly say

that this does not. Possibly because of their

ignorance of the fact that they do not have

the same rights as married couples, very

few current cohabitants have taken steps to

safeguard their position. Only around one in

six of those who own their accommodation

have a written agreement about their share

in the ownership, and only one in five have

sought advice about their legal position.

The way in which the Social Security system

and other official bodies refer to people being

married or “living together as husband and

wife”, perhaps gives people a false sense of

security and feeds the myth of the “common

law marriage”.

Injustice

The present law provides no proper

protection for cohabiting couples on

relationship breakdown and instead leaves

people vulnerable to significant injustice.

The famous case of Burns v Burns illustrates

the problem. Mr & Mrs Burns (so called) lived

together for 19 years and had two children

together, but never married. They lived as a

family and pooled their resources, but when

the relationship broke down Mrs Burns was

found by the court to be entitled to nothing.

Mrs Burns was not entitled to an interest

in their home because the court could not

find evidence of a common intention of joint

ownership either by agreement or by virtue

of financial contributions to the purchase

price of the property or the mortgage. The

court could not, therefore, construe a trust

in her favour. Because she was not married,

the court did not have jurisdiction to consider

what she might reasonably need or expect.

Recommendations

When the Law Commission’s Report was

published last year, the press coverage

was to say the least, not entirely accurate.

There were headlines in the tabloid press,

particularly, trumpeting the Government’s

intention to introduce legislation giving

cohabitants identical rights to those of

married couples. That is not what the Law

Commission has recommended.

The Law Commission’s recommendations are

for a separate statutory scheme different to

the existing divorce legislation, which would

enable one cohabitant or former cohabitant

to claim relief following separation if he or

she has suffered an economic disadvantage

as a result of qualifying contributions made

to the relationship, or if the other party has

a retained benefit. A qualifying contribution

would be any contribution arising from the

cohabiting relationship which is made to

the parties’ shared lives or to the welfare of

members of their families. Such contributions

are not limited to financial contributions and

include future contributions, in particular to

the care of the parties’ children following

separation. A retained benefit could take the

form of capital, income or earning capacity

that has been acquired, retained or enhanced

as a result of the cohabiting relationship. An

economic disadvantage would be a present or

future loss, which could include a diminution

in savings as a result of expenditure, or of

earnings lost during the relationship, lost

future earnings or the future cost of paid

child care.

Why reform now?

Failure to act on the Law Commission’s

recommendations now will mean that the

more vulnerable partner – very often a

woman and mother of any children of the

relationship – is left to face injustice and

financial hardship on the breakdown of a

cohabiting relationship. In some situations

she is left homeless, without any claims at

all over the property where she may have

lived for many years. If this happens, the tax

payer has to fund welfare benefits and public

housing to support those who should not be

left in this position. It is not clear how this

fits in with the Government’s commitment to

equality and protecting the disadvantaged.

Of course, the Government has to take

account of the cost of introducing social

reform legislation. Concern about exposing

the Legal Aid fund to further demands is

understandable. However, given the nature

of these cases, there will be assets which

the Legal Services Commission can use to

recover costs.

The world has changed dramatically in the

last twenty years. Cohabitation is with us to

stay and the law should now catch up with

changing family structures and reflect the

needs of society as it is.

24 the barrister

27the barrister26 the barrister

The Dangers of The Online WorldMatthew Jackson Provides an Overview of the Complexities and Importance of Experts in Cases Involving Digital Evidence.

To most people, a computer could not be described as Dangerous. We use them on a daily basis to type letters, perhaps browse the Internet, play games or store holiday photos. However,

for some, data contained on a computer or mobile phone can provide enough evidence to form the basis of legal proceedings against them.

As computer forensic specialists, Fields Associates is currently involved in criminal and civil cases involving an array of different subjects, including corporate data theft and espionage, murder, drugs, fraud, theft, employee misbehaviour, child access applications and even probate. These are not just legal cases either; for example, we regularly we receive instructions relating to marriage disputes that involve computers and digital media.

Increased media attention over the past ten years in cases such as those within Operation Ore (relating to 7,000 individuals who allegedly subscribed to websites displaying sexual images of children) and more recently, terrorism and ‘happy slapping’ incidents, have provoked a greater public interest in proceedings where digital evidence has formed a crucial part of the case.

Not only is there now a greater general awareness of the capabilities of digital evidence and its potential within legal cases, additionally, reports of websites containing indecent images of children are also continually rising each year (The Internet Watch Foundation reports that the number of websites confirmed as containing unlawful material has increased by 62% over the last three years. It would, therefore, appear that the use of this type of evidence is set to continue to rise.

Increasing resources are now being spent on examining data of this type as part of legal cases where previously it was thought unnecessary. In the past it was commonplace for a Police investigator to restrict an investigation to simply identifying ‘evidence’. Upon inspection of this investigation by an independent party, as part of a more in-depth review, it was frequent for the evidence as a whole to have been misinterpreted and the case against the Defendant was not as it first appeared.

Over recent years, the majority of criminal cases for which we received instructions have attracted greater attention from the Police. We now frequently encounter cases involving supportive evidence (such as

user and/or Internet history) as well as the basic evidence that is relied upon as part of the Prosecution case. However, it seems inevitable that an increase in the number of cases limits what can be achieved within a Police Force’s Hi-Tech Crime Unit. Even today we identify the presence of new and previously unconsidered relevant material within approximately 80% of the cases in which we are involved.

For the majority of the time, this is the result of the initial question asked of a Police Hi-Tech Crime Unit investigator, being “What’s there?” The question “How did it get there?” is normally asked only when the Defence looks to respond to the initial allegations. Consequently, that question is normally answered until well after the case has been initiated.

Identifying the basic origins of a file is normally relatively straightforward. For instance, the location of the file normally provides the biggest clue; the activity surrounding its creation is another indicator. However, clearly, the presence of a file and even the identification of its origins do not confirm that the accused deliberately caused its creation nor was aware of its presence. To examine that point normally requires far greater levels of investigation, including the piecing together of items of data in order to build a history of that given file and the activity associated with it.

When dealing with cases involving indecent images of children, for instance, there are various methods for an image to have been created on a computer hard drive, including, but not limited to, websites accessed whilst browsing the Internet, received e-mails and peer-to-peer software, such as KaZaA. Within each of these originating sources several possible mechanisms can cause the creation of a file without the deliberate and intentional actions of the user.

One such example is a case in which I was involved within the last 18 months. This related to a 19-year old male who, like most 19-year olds, lived at home with his parents. However, unusually, this young man faced allegations of making and possessing 9 static and 11 moving indecent images of children. The images had been stored in two folders within his ‘user’ profile on the family’s home computer. After two years of investigation by the Police, that included an examination of the family computer by the Force’s Hi-Tech Crime Unit and an externally sourced expert computer consultant as well as a number of interviews and Court appearances, the accused still had not made any admissions

of guilt and claimed that he was simply unaware of the presence of the images.

The Prosecution relied upon the fact that the unlawful images were contained within manually created folders of the Defendant’s ‘user’ profile and they also identified the presence of keyword searches for terms that were likely to result in the creation of unlawful material.

I examined the case and noted that the 9 static images had arrived via a small number of web pages containing legitimate adult pornography and had been created automatically by image downloading software. This software, I noted, had searched for and downloaded any images present on any web page that it encountered. A number of further observations were made as to the apparent lack of awareness of the user regarding the presence of the images following their creation.

The 11 moving images had appeared to have originated via the peer-to-peer software named Limewire. The software had been used to download a significant amount of pornography, including these unlawful moving images. Furthermore, a review of the operation of the software confirmed that dubious keyword searches had been conducted and these specific images had been downloaded to a folder that was located within the ‘user’ profile of the accused.

It was only after a careful review of the system activity that was contained on the hard drive did it transpire that another user of the computer had been frequently accessing the folder containing the target images and had been viewing its contents, including the unlawful images. After 9 months of our involvement and nearly three years of investigation, the case was eventually dropped shortly before the set Trial date.

This case is not an exception. In approximately 20% of the cases in which we are involved we have been responsible for identifying crucial new evidence that has caused the case to be withdrawn. Due to the level of examination required to recognise such evidence, this figure is unlikely to diminish. For the Police, an examination of this detail is irrelevant for the majority of cases. Having previously worked within at a regional Hi-Tech Crime Unit, I noted that while I was there, for approximately 85% of the cases in which evidence was identified, the Defendant would plead prior to Trial. Only a small percentage of cases involved a Trial and even fewer were party to a review by an independent examiner.

Cases involving files encountered and downloaded via websites are also frequent areas of misunderstanding. The presence of a web page or file on a hard drive can be the result of intentional user access, or alternatively, the operation of one of a number of different scripts and software. These scripts can cause the user’s Internet browser to be automatically forwarded to web pages containing certain material or cause certain files to be added to the hard drive without the user’s knowledge.

As even legitimate websites contain scripts, the majority of computer users will have experienced (and may have found annoyance in having to close them) ‘pop-up’ windows. These are normally used to forward a user to an advert that often will comprise of a service vaguely relating to the content of the page that was visited (e.g. the autotrader website regularly contains pop-up scripts to websites for car loans or car manufacturers). However, identifying the presence of these types of scripts and software is often difficult. Furthermore, once a suspect item has been found, making the determination as to its nature, ability and activity can be even more complicated.

As digital media increases in capacity it allows users to store more data but also

increases the possibility of software or anomalous mechanisms causing the creation and movement of files. This brings with it a corresponding increase in the amount of resources and time required to examine the greater number of processes and, clearly, the amount of data to be examined in order to identify such mechanisms.

Additionally, the increased use in the court room, within both criminal and civil proceedings, of digital evidence brings with it a greater need for the presentation skills required to provide simple explanations of a subject that can not only be difficult to comprehend but also to convey accurately, clearly and without prejudice.

Clearly, the prevalence of digital technology will increase as it becomes even more accessible, usable and capable. This will undoubtedly result in a continuous increase in the number of cases involving and relying on digital evidence as well as increasing the pressure on Police Forces to examine and collate evidence from a larger number of items of digital media.

My concern is that, as nearly happened with the case of the 19-year old highlighted earlier, potentially, the critical facts of such cases will go unnoticed and items of evidence

will be missed as a result of the restricted budgets and timescales placed upon a computer examiner. In this regard, the dangers of computers and the online world, for an increasing number of unsuspecting individuals, could be great.

Matthew Jackson, Director, Senior Forensic Consultant and Expert Witness at Fields Associates. 0845 301 5778 e-mai:l mjackson@fieldsassociates.co.uk

sequential chunks for portability where oth-

ers create one contiguous file. A forensic ex-

aminer will carry many evidence drives and

many Write Blocking devices to enable fast

and efficient copying of target hard drives.

These evidence drives are typically 750 Gb

so can hold the image of around 9-10 com-

puter systems. Utilising the latest high speed

write blocking imaging devices provide the

capability to securely copy data at speeds in

the region of 2-4 Gigabyte per minute, which

results in a typical hard drive of 80 Gb tak-

ing between 20 to 40 minutes to complete.

Technology is a large part of the forensic ex-

aminers role to keep up with the demand of

the ever increasing size of hard drives to be

imaged in a timely fashion. Imaging devices

work independently of operating system or

software installed on the target hard drive.

Once a target hard drive has been identified a

photograph is taken of its location and what

connections it has plugged into it. Details of

where it is located, who normally uses it, the

type of computer, model number and serial

number, colour and if it displays any distin-

guishing marks, i.e. broken case or sticky

label on the front. Once this has been done

the computer is disconnected from its cables,

keyboard, mouse and screen all of which are

duly noted. If the raid is with law enforce-

ment the computer is either placed within

an evidence bag, dependant on size, or a

tamper-proof evidence tag is attached and

the number of the bag or tag is entered in

the exhibit log by the exhibits officer before

being signed over to the forensic examiner.

Examination is regularly done away from the

scene of crime.

In the case of a non-law enforcement inves-

tigation or to reduce the impact of collateral

intrusion, the computer system case will be

opened and the hard drive photographed

in situ and its details noted. The hard drive

will then be removed and photographed and

the details of the make, model, size, serial

number, model number and details of any

distinguishing marks taken. It is important to

also make a note of the physical character-

istics of the hard drive such as the number

of heads, cylinders and jumper settings to

ensure that during analysis the forensic soft-

ware detects the same details in case the disk

BIOS has been modified to provide a ‘hidden’

partition. The drive will be imaged and re-

turned to the system or placed in an evidence

bag and removed.

The forensic examiner also has to take into

account that within any premises only cer-

tain computers may be involved in any al-

leged wrongdoing and there are issues of

collateral intrusion as defined in the Regula-

tion of Investigatory Powers Act 2000 (RIPA)

if working in conjunction with law enforce-

ment. Collateral Intrusion is the unwarranted

or unauthorised intrusion into the privacy of

innocent third parties. The forensic examiner

would be advised to detail exactly what steps

will be taken to minimise collateral intrusion

when obtaining the data requested although

this is not a legal requirement for a private

company providing computer forensics serv-

ices. A good example of this would be to turn

off a corporate email server containing thou-

sands of global users to acquire the contents

of one staff member accused of wrongdoing.

Encountering encryption on hard drives is

becoming more commonplace. Often whole

hard drives are encrypted by the computer

literate criminal. This does not cause an is-

sue to a forensic examiner when acquiring

the target disk image as the disk will be im-

aged in the normal way but when the data

is analysed and it is found to be encrypted

the examiner will rely on the owner of the

disk divulging the password. Failure to pro-

vide this to law enforcement may lead to

prosecution. In some cases it is possible to

decrypt encrypted disks without the original

password.

Having knowledge of the perpetrator is very

useful to understand if he is computer liter-

ate enough to encrypt his hard drive or at-

tempt to destroy evidence. A cunning and

computer literate perpetrator would be able

to destroy evidence beyond what is possible

to recover forensically but this will need to

be performed extremely thoroughly through

a manual process using many different com-

puter applications and with a deep technical

knowledge of computer operating system in-

ternals. These techniques are known as anti-

forensic techniques. Using just one applica-

tion to erase Internet usage does not erase

other associated files used by the operating

system which could still provide evidence to

show which sites were visited and when.

With all the target hard drives imaged se-

curely and the computer systems themselves

placed in evidence bags and removed or re-

turned to their original systems along with all

other computer media, mobile phones, PDAs

imaged and bagged and the exhibit log com-

plete the forensic examiner has the task of

analysing sometimes a huge quantity of data

ahead of him.

Rob Trevelyan is a computer forensic exam-

iner at the security and intelligence company

Thamesbridge.

01256 840002

rob@thamesbridge.com

29the barrister

Forensic Investigations – How a Raid is Planned and Executed By Rob Trevelyan, computer forensic examiner at the security and intelligence company Thamesbridge

As in most disciplines

that include an ele-

ment of the unknown

the planning stage of a

forensic investigation is

an important exercise.

To ensure a successful and well executed raid

it is necessary to understand as much as pos-

sible about the nature of the investigation.

Identify whether it is to take place during the

day in open view of other staff or out of hours

away from prying eyes or even with law en-

forcement when the element of surprise is

absolutely needed.

Information about the physical location to be

visited is essential to ascertain whether it is

possible to gain access with ease. Access to

the building or area where the computer sys-

tem of interest is located will nearly always

require some form of access control device

and potentially with assistance of an internal

staff member. Gaining the trust and requiring

the assistance of local IT or security staff will

need to be assessed if there is a possibility

of their involvement of any alleged wrongdo-

ing.

To have a thorough understanding of the type

and quantity of computer equipment to be

encountered is extremely important in the

planning stage. A list of questions or a check-

list helps to determine what the computer of

interest is likely to be. This checklist needs to

be comprehensive and if the forensic investi-

gation is to be conducted with assistance or

information from IT staff, it is possible to un-

derstand the exact system configuration. In

the event of a raid situation it is unlikely that

any detailed information about the quantity

or configuration of the computers systems to

be encountered will be available. In this event

the planning stage must take this into account

and the forensic examiner must be equipped

to deal with any system and media.

In general a computer forensic examiner

typically will encounter four types of com-

puter system; laptop, desktop, tower and

rack mounted. The examiner will be able to

identify which type of system is more likely

to be encountered in the environment he is

planning for. In addition to the computer sys-

tems likely to be encountered the examiner

will also need to plan for all computer medi-

um. These media devices are found in many

types, quantity and capacity but these are

often; CD/DVD, USB memory stick, memory

card, external hard drive although devices

such as an Ipod have been used to store data

and would therefore be subject to examina-

tion and imaging.

In general terms a typical home environ-

ment will contain laptop and/or desktop type

computers or mini-tower systems (desk side).

There are likely to be multiple laptops and

multiple desktops systems in many homes

but these are nearly always configured as

they left the computer store and offer no

issues to an examiner. These systems will

utilise operating systems such as Microsoft

Windows predominantly or Apple MAC and

occasionally Linux.

In a small to medium size business, along

with laptop and desktop systems, tower

computers and small rack mounted systems

are likely to be encountered. These again

offer no real issue to an examiner who will

be equipped to handle multiple systems of

varying sizes. Operating system likely to be

encountered would be Microsoft Windows,

some Linux and the occasional Apple MAC.

Design and creative companies use predomi-

nantly MAC.

In a large business, corporation or govern-

ment department laptop, desktop, tower and

rack mounted systems are used. These are

in large quantities and numerous makes and

models. Operating systems tend to be Micro-

soft Windows and Linux or other UNIX de-

rivatives. The planning around such a large

organisation is imperative as a rack of com-

puter systems can contain a huge number of

computers or a massive array of hard drives.

The most important thing to take into ac-

count with any computer forensic investiga-

tion is to keep within the ACPO (Association

of Chief Police Officers) guidelines for compu-

ter based electronic evidence which requires

all computer forensic examiners to produce

computer evidence that is no more and no

less than when it was first taken into the pos-

session of the forensic examiner i.e. the data

was acquired securely using an accredited

write protecting device.

When a forensic examiner takes an eviden-

tial image of a computer system’s hard drive

he does so using what is known as a Write

Blocker. This device allows data to pass from

the target hard drive to an evidence drive to

create an exact bit-for-bit copy of the original

but additionally protecting the target drive

from being written to and therefore preserv-

ing the evidential integrity of the original. If a

target hard drive of 80 Gb (Gigabytes) is im-

aged using a write blocker an evidence file of

80 Gb is created on the examiner’s evidence

drive. Some software will split this 80 Gb into

28 the barrister

31the barrister30 the barrister

NEWSROUND

UP

Banking on Intangibles: Taking Security over Intellectual Property

The value of intellectual property denotes more that just legal rights – it represents an important aspect of business finance.

By Akalemwa wa Mubiana ni Munalula Ngenda, Lecturer, Brunel Law School, Brunel University

1. Introduction

Taking security for provi-

sion of credit offers many

advantages. In insolvency,

secured creditors stand

better chances of getting

their money back than un-

secured creditors. In practice, lenders may

be unwilling to lend without security. Secured

credit is also advantageous to borrowers in

that financiers will almost inevitably lend at

lower interest rates to those who can give

security. When it comes to valuable security,

intellectual property is now considered as an

attractive business asset. Security could be

over a securitisation of the intellectual prop-

erty vis-à-vis royalties or licensing fees. The

commercial value of intellectual property un-

derlines its rapidly growing significance to

lenders as well as borrowers.

While the interface between secured finance

and intellectual property may create synergy

in business, it also raises a number of legal is-

sues. The borrower’s priority to secure credit

must be balanced against the credit provider’s

interest in procuring a realisable form of se-

curity. Similarly, the lender’s desire to retain

significant control over the intellectual prop-

erty needs to be aligned with the borrower’s

ability as a going concern.

2. Forms of Security

Due to the nature of intellectual property as

personalty, the security taken over it is non-

possessory, i.e., in the form of a mortgage

or a charge. The kind of security taken will

depend on a number of issues including the

nature and status of the intellectual property

in question. There are major differences be-

tween the types of security, and these have

important significance for enforcement of

rights and priorities in insolvency. In general

terms, a mortgage is disposition of property

to secure a debt, whereas a charge is appro-

priation of assets or class of assets for the

satisfaction of a debt, whereby the chargee

is entitled to the asset or its proceeds to dis-

charge the incurred liability1. A charge does

not transfer title, but creates a transmissible

interest2 by virtual of a right of sale. Enforce-

ment of mortgage is of course by foreclosure,

while that of a charge is usually by sale.

2.1. Mortgages

A disposition of an asset as security for a debt

can either be legal or equitable. A legal mort-

gage will conditionally assign the ownership

or legal interest in the intellectual property to

the lender until repayment. The mortgagor is

entitled to a reversionary interest which will

be preserved by the equity of redemption –

an express or implied condition fulfilled upon

discharge of the secured debt. In other words,

the borrower will retain a beneficial equitable

interest in the intellectual property. Where

personalty is assigned by way of mortgage,

‘the right to redeem includes the right to ob-

tain a reassignment.’3 The right to redeem is

an inseparable characteristic of a mortgage

and can only be terminated by judgment for

foreclosure4. Since title passes to the lender

under a legal mortgage, an agreement can

be negotiated for the lender to license all

or some of the intellectual property back to

the borrower especially where lawful use of

rights is necessary to carry on business.

An equitable mortgage will not transfer own-

ership to the lender, but establishes an eq-

uitable interest5 by creating a charge on the

asset in question. So where there is an equi-

table mortgage the lender only takes benefi-

cial interest in the intellectual property.

2.2 Charges

A charge can be fixed or floating. The former

requires a succinct definition of the specific

asset to be charged, and also specifying who

will exercise control, and how, over the asset.

A floating charge is important business device

as provides some form of security interest to

the lender while ensuring that third parties

can acquire rights in the subject matter of the

floating charge6 by obtaining a title free from

the charge. In Illingworth v. Houldsworth7,

Lord Macnaghten explained the difference

between fixed and floating charges as fol-

lows:

A specific charge I think, is one that with-

out more fastens on ascertained or definite

property or property capable of being ascer-

tained and defined, a floating charge, on the

other hand, is ambulatory and shifting in its

nature, hovering over and so to speak float-

ing with the property which it is intended to

affect until some event occurs which causes

it to settle and fasten on the subject of the

charge within its reach and grasp.

A floating charge does not prevent the carry-

ing on of business in the ordinary way8. This

allows the debtor to make further charges in

an attempt to secure more funds9. The debt-

or is free to dispose of the property charged

through sale or exchange provided the future

event by which the floating charge is caused

to settle on the charged property has not tak-

en place. However, the authority to deal with

the assets in the ordinary course of business

may be curtailed where a third party has ac-

tual notice of restrictions within the charging

document10. In the end, whether a charge is

a floating charge or not is a question of fact to

be determined by the court.

3. Negotiating and Choosing the Secu-

rity Instrument

Several factors will influence the choice of

security. It is important for the financier to

weigh which form of security affords better

protection or latitude than another. The cri-

teria for selection of the appropriate security

instrument will take into account the needs of

the borrower while guaranteeing repayment

for the financier. The divisibility of intellec-

tual property allows the lender to make an

assorted demand, say, for the right to: audit;

proceeds; collect payments; consent to licens-

ing; and enforcement.

Both the lender and borrower may require

greater freedom in dealing with the intel-

lectual property. The lender may insist on a

right to sell the intellectual property, by way

of power of attorney or sale, in order to better

respond to the exigencies or favourable con-

ditions of the market. We have already seen

that a borrower wishing for some flexibility

could negotiate for the intellectual property to

be licensed back to them. It is prudent to as-

certain whether there are any pre-existing li-

censing arrangements in order to investigate

the debtor’s ability to transact since the pow-

ers to do so could be limited by some prior

restrictive covenants. Generally, the lender

should seek to obtain as much information

about the intellectual property in question

regarding ownership, validity and duration

of rights.

As a financial service provider, the creditor

must also establish the legality of the transac-

tion being entered into. In some cases official

authorisation maybe required. The enforce-

ability of the security is another matter to

consider. This may depend on whether there

are any adverse interests affecting the lend-

ers position vis-à-vis subsequent encambrac-

ers and unsecured creditors, or indeed, rank-

ing in a winding-up. Here, it is significant

whether the security is fixed or floating and

whether it is required to be registered.

4. Perfection and Priority

Creditors taking security must make a point

to establish by due diligence that there are no

pre-existing interests to which their own se-

curity would be subordinated. They also need

to take appropriate measures to perfect their

security interest to avoid being overridden

by a debtor’s subsequent disposition. While

subordination to competing security interests

may not be fatal, the existence of an absolute

superior opposing interest could extinguish

the security interest altogether11.

Perfection consists in taking of steps required

beyond mere attachment to make a security

interest enforceable against a debtor, and also

to make the same effective against third par-

ties12. The latter often requires performance

of an act which puts third parties on notice of

the security interest13. Such additional step

is designed to give notice of the security inter-

est to the world and any would-be purchaser

or encumbracer of the secured asset. Taking

possession of the security is the safest meth-

od of perfection as it puts all those dealing

with a debtor, of whom possession has been

divested, on inquiry and is thus as good as

notice to the world at large14. Registration

or filling is also an important mode of per-

fection of security interests. It is more appro-

priate to refer to registration as lodgement

of the particulars relating to the security and

filing as lodgement of the security instrument

itself or a copy thereof15. However, since it

is common for some statutes to refer to reg-

istration of documents we shall use the terms

interchangeably.

4.1. Registration under the Companies

Act

The Companies Act 198516 creates two

methods for registration of charges. The

company is required to maintain its own reg-

ister where particulars must be entered of all

charges over its property17. The register is

open for inspection to members of the pub-

lic and creditors. The Registrar of Compa-

nies also keeps a register of all particulars of

charges affecting the property or undertaking

of every company.18 Section 396(1) gives a

list of security interests required to be regis-

tered in the in terms of s 395. In particular,

all charges on the goodwill or on any intel-

lectual property of a company must be regis-

tered. According to section 396(1) the charge

together with its particulars must be lodged

for registration within 21 days of the date of

creation. In this context ‘charge’ includes a

mortgage19 and intellectual property refers

to a patent, trade mark, registered design,

copyright or design right and any licence un-

der or in respect of any such right20.

If a company fails to file the particulars of a

registrable charge the company and every

officer in default, is liable to a fine21. Sec-

tion 395 also provides that the charge would

be ‘void against the liquidator or adminis-

trator and any creditor of the company.’ In

that event, the money secured by the charge

becomes payable immediately.22 So while

registration is the company’s obligation, it is

clearly in the lenders’ best interest given an

unregistered security interest is ineffective

against subsequent secured creditors and the

liquidator and creditors in a winding up23.

Therefore, registration of a security interest

is necessary to preserve its validity vis-à-vis

third parties regardless of it being registra-

ble in another (specialist) register. Otherwise,

through no fault of their own, creditors face

the risk of taking security under a charge

which has become void. The CA 1985 ap-

propriately provides a voluntary registration

scheme under section 399(1) which allows

for registration at the behest of any person

interested in a registrable charge24.

4.2. Under other Legislation

In the case of patents, trade marks or reg-

istered designs, it is important to establish

their registration status at the UK Intellectual

Property Office before taking any security.

These rights are not valid unless they are

registered. However, note that a patent appli-

cation is considered as personal property ca-

pable of being assigned or mortgaged25. The

registrability of a security interest at the UK-

IPO depends on whether it affects registered

or unregistered rights. Any mortgage or se-

curity interest granted over registered rights

must be registered26. Failure to register will

result in loss of priority in case of conflict27.

33the barrister32 the barrister

at Westminster School, on Monday 7 July at 6.30 pm. The panel of speakers will be: Lord Bingham, Professor Peter Hennessy, the historian of post – war Britain, Professor Vernon Bogdanor, professor of government at Oxford and Sharmi Chakrabarti, Direc-tor of Liberty. They – and the audience - will have much to discuss. Is there a conflict be-tween the law, civil liberties and democracy? Are “unelected judges” and their judgments wrongly taking precedence over the judgment of democratically elected politicians. Have the “rules of the game” changed as Tony Blair stated in August 2005; or have politicians, fearful of the consequences of a terrorist at-tack on the UK, become irrational in their approach? The Lord Speaker of the House of Lords, Baroness Hayman, will chair this meeting, which promises to be lively and en-tertaining.

The fourth symposium will be on Law and Commerce and will be held, suitably, in the City, at the Guildhall Museum, on Monday 29 September. The speakers will be Lord Phillips, Lord Chief Justice and a former Commercial Court judge; Lord Browne of Madingley, the former Chief Executive of BP, Sir Andrew Large, chairman of a hedge fund and formerly Deputy Governor of the Bank of England and Jan Paulsson, an internation-ally renowned commercial arbitrator. This meeting will be chaired by Stephanie Flan-ders, the well – known economics journalist and television broadcaster. English com-mercial law developed during the years of Britain’s economic ascendancy in the 19th century. But today traditional common law

notions of “freedom of contract” are much circumscribed by statute, European Regula-tions, international economic treaties and commercial conventions. In this context one inevitably asks: do the lawyers and leg-islators know enough of how economics and commerce work to make appropriate laws in those spheres – whether on the international scale or for the consumer? Did the law help or hinder in the recent “credit crunch” crisis? Or was it a helpless bystander? Come and de-bate it in September!

The last symposium will be on law and inter-national relations. It will take place in King’s College, on the Strand, on Monday 8 Decem-ber 2008. The speakers there will be Gener-al Sir Mike Jackson, former chief of the Gen-eral Staff, Professor Sir Basil Markesenis QC, an international lawyer, Sir Konrad Schie-mann, formerly a Lord Justice and now a Judge of the European Court and Sir Malcolm Rifkind QC MP, formerly Foreign Secretary in John Major’s government. The meeting will be chaired by Dame Rosalyn Higgins, who is the President of the International Court at the Hague. Since Grotius and Vattel’s writing in the 17th and 18th centuries, it has been said that there are fundamental principles of international law: that states are equal, in-dependent and entitled to maintain their ter-ritorial integrity. But how far do – or should - the principles of international law govern relations between states; or is international law simply an amorphous body of opinions which are ultimately unenforceable? And how are individuals’ rights to be protected in the sphere of international relations. The

traditional attitude of the English courts has been that actions by states or international organisations “on the plane of international law” cannot be questioned in domestic courts. To some degree that has been changed by International Conventions, eg. The Torture Convention 1984. But even there, the House of Lords has recently held that this Conven-tion does not side step a foreign state’s right to immunity from suit in the English courts where its agents are accused of being party to torture outside the UK. So, is the sphere of international relations a “lawless world” as Professor Phillipe Sands has described it? Come and argue the point!

We hope to publish the speeches of the main participants in these symposia. They will be a record of some serious thinking on the devel-opment of the relationship between law and society. It should provide a fitting record of the 400th anniversary of the start of the modern Bar, which we hope will continue for another 400 years!

Mr Justice Aikens was educated at Nor-wich School and St John's College Cambridge (now Hon. Fellow). Barrister (Brick Court Chambers)1974 - 1999; QC 1986. Special-ised in commercial, particularly shipping, insurance and banking. Recorder 1993 - 9. High Court Judge and nominated to Com-mercial Court 1999. Presiding Judge of the SE Circuit 2001 - 4. Judge in charge of the Commercial Court 2005 - 6. Chairman of the Commercial Court Working Party on Long Trials 2007.

Determination of priority for unregistered

rights, such as copyright, goodwill, unregis-

tered designs and database rights, abides the

normal rules established at common law. It

is important to reiterate that registration of

a security interest over unregistered rights is

merely a perfection requirement. It does not

constitute a priority point.

4.3. Priority at Common Law

The general rule is that among competing

interests, priority is determined by the order

of creation, provided that a legal estate has

preference over an equitable interest. Gen-

erally, where there are competing equitable

interests the first in time prevails28. Because

of the powers of disposition retained by the

debtor under a floating charge, it will in prin-

ciple be subordinated to a later fixed charge,

whether legal or equitable29. Where a sub-

sequent floating charge is created over identi-

cal assets, it will be ineffective in relation to

an existing floating charge if it goes against

the intention of an earlier charge30. How-

ever, the company may create a prior rank-

ing floating charge over part of the assets31.

Here, the specificity of charge and not the

specificity of its subject matter will influence

priorities32.

Even where the floating charge has a negative

pledge clause against the creation of higher

ranking charges, not all third parties taking

with notice of the security interest are neces-

sarily affected by the said pledge33. The bona

fide holder of a later legal charge still has pri-

ority over an earlier equitable charge as long

as they are without notice. Similarly, where a

floating charge contains a clause restricting

or prohibiting prior or pari passu ranking, a

subsequent mortgage or fixed charge will still

have priority provided there is no notice of

the restrictive covenant34. Mere registration

of the floating charge does not constitute no-

tice that it contains a clause with a negative

pledge35. In any event, notice of a document

is not necessarily notice of its contents36.

6. Conclusion

While registration may assure priority, it also

clearly serves to protect the security from be-

ing void against subsequent encumbrances.

Although registration under the companies

Act is the borrower’s responsibility, ultimately

it behoves creditors to protect their interests

by, among other things, effecting registration

to preserve validity. On the other hand, reg-

istration at the UK-IPO assures priority of the

security interest. The call to diligence also de-

mands that financiers do their part in main-

taining the value of the security and ensure

the periodic renewal of registered rights.

1 Re Cosslet (Contractors) Ltd [1998] Ch 495

at 507–8, CA, per Millet LJ.

2 ibid, 508.

3 Halsbury’s Laws of England, 4th ed. (Reis-

sue) vol 32 para 307, fn 1 (mortgagor’s right

of redemption).

4 ibid, para 767.

5 See Re Sharland, Kemp v Rozey (No 2)

(1896) 74 LT 664, CA.

6 Goode, Commercial Law, 689.

7 (1904) AC 355 at 358, HL. Also, see Govern-

ments Stock and Other Securities Investment

Co v Manila Rly Co Ltd (1897) AC 81 at 86,

HL.

8 See per Romer LJ in Re Yorkshire Wool-

combers Association Ltd (1903) 2 Ch 284 at

295, CA: J. R. Lingard, Bank Security Docu-

ments (London: Butterworths, 3rd ed., 1993),

155.

9 Wheatley v Silkstone and Haigh Moor Coal

Co (1885) 29 Ch D 715.

10 Lingard, Bank Security Documents, 156.

11 R. Goode, Commercial Law (London: Pen-

guin, 2004, 3rd ed.), 51.

12 R. Goode, Principles of Corporate Insol-

vency Law (London: Sweet & Maxwell, 2nd

ed., 1997), 419–21.

13 Goode, Commercial Law, 647.

14 ibid.

15 Report of the Committee on Consumer

Credit (HMSO: Cmnd 4696, 1971), para

5.7.13. According to Roy Goode, ‘[t]he dis-

tinction is of substance, for the filing of a

security instrument or copy is public notice

of its contents, whereas according to the or-

thodox view registration of particulars of the

security interest constitutes notice only of the

existence of the security and of the other par-

ticulars registered.’ Goode, Commercial Law,

650 n 25, 664.

16 Note that all the company law provisions

of the 1985, 1989 and the 2004 Acts have

been brought into the CA 2006. The Govern-

ment has since announced the postponement

of the final implementation date of the CA

2006, from 1st October, 2008 to 1st October,

2009. This discussion is based on the Compa-

nies Act 1985.

17 Section 407, Companies Act 1985.

18 Section 401.

19 Section 396(4).

20 See s 396(3A).

21 Section 399.

22 Section 395(2).

23 Section 395(1).

24 Section 339(2) provides that such a ‘per-

son is entitled to recover from the company

the amount of any fees properly paid by him

to the registrar on the registration.’

25 Patent Act 1977, s 30(1), (2).

26 Patent Act 1977, s 32(2)(b); Trade Marks

Act 1994, s 25(2); Registered Designs Act

1949, s 19(1).

27 PA 1977, s 33(1)(a), (3)(b), TMA 1994, s

28 (3)(a).

29 Dearle v Hall (1828) 3 Russ 1; [1824–34]

All ER Rep 28; R. Megarry and H. W. R. Wade,

The Law of Real Property (London: Stevens &

Sons, 1977, 4th ed.), 959.

30 Governments Stock and Other Securities

Investment Co Ltd v Manila Pty Co (1897) AC

81, 86; Re Hamilton’s Windor Ironworks, ex

p Pitman and Edwards (1879) 12 Ch D 707.

28 Re Benjamin Cope & Sons Ltd, Marshall v

Benjamin Cope & Sons Ltd [1914] 1 Ch 800;

Re Household Products Co Ltd (1981) 124

DLR (3d) 325.

31 Re Automatic Bottle Makers Ltd, Osborne

v Automatic Bottle Makers (1926) Ch 412.

32 J. H. Farrar, N. E. Furey and B. M. Han-

nigan, Farrar’s Company Law (London: But-

terworths, 1991, 3rd ed.), 277.

33 Goode, Commercial Law, 666, 686–7.

34 Dearle v Hall (1828) 3 Russ 1; Wheatley

v Silkstone & Haigh Moor Coal Co (1885) 29

Ch D 715.

35 See Re Valletort Sanitary Steam Laun-

dry Co Ltd, Ward v Valletort Sanitary Steam

Laundry Co Ltd [1903] 2 Ch 654; Re Standard

Rotary Machine Co (1906) 95 LT 829.

36 16 Halsbury’s Laws (4th ed.), para 1327.

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UP 38 the barrister

1 “Route to Pupillage” in It’s Your Call: a Career at the Bar” Appendix 2

a result of the Legal Services Act, the introduction from 2009 of Legal Disci-plinary Partnerships, and from 2012 of Alternative Business Structures.

Aspirant barristers have, of course, always risked not being able to obtain pupillages, then tenancies, and then sufficient work to establish viable practices. However they now face a double, perhaps even a triple whammy: the high costs of the BVC (inevitable granted the levels of staffing and other resources re-quired to deliver a programme of this kind, and to the standards rightly demanded by the BSB) on top of the debts they are already carrying from their undergraduate degrees; a marked and long-term decline in pupillages; and an ever-narrowing base for traditional, independent practice.

It is therefore incumbent on all those re-sponsible for the qualification-process, and especially of course the Bar Council, the Bar Standards Board (BSB) and the BVC provid-ers, to do all that they can to ensure that those who opt for a career at the Bar do so on the basis of informed consent.

For that reason alone, the BSB’s decision to publish a table1 which compares, for each provider, the number of students who started pupillages in 2005 and 2006 with the number who completed the BVC in the same years, was welcome, timely and generated a great deal of interest, witness the front-page cover-age it received in the Lawyer.

However, research conducted by the College of Law’s Careers Service, suggests that the BSB’s figures need to be treated with some caution and, if they are really to be of much value to those considering the BVC, need much further refinement.

Firstly, they do not show when the students who started the pupillages had taken their BVCs. Therefore, unlike the annual “First Destinations” surveys which many Careers Services (including the College’s) carry out, they can provide only a very rough guide to the “pupillage-acquisition rate” (PAR) of a giv-en cohort of each provider’s BVC students.

In particular, the BSB’s figures will tend to un-derstate the PAR of any provider, such as the College, whose BVC numbers had increased appreciably over the relevant period; and, for the same reasons, overstate that of any pro-vider whose BVC numbers had decreased.

Secondly, and much more importantly, a sim-ple “inter-provider” comparison such as that presented in Routes to Pupillage, fails to iden-tify the factors which really determine wheth-er or not BVC students obtain pupillages.

To investigate these, the College conducted research in 2007, which:• Matched the information supplied by ex-

BVC students who responded to its 2006 and 2007 “First Destinations” survey, with that held on its records system about the respond-ents’ “pre-BVC” academic record, age, and, where available, ethnic background;• Organised the respondents into bands based on a combination of their degree class and A level scores (or equivalent). So for ex-ample, some bands combined high degrees with high A levels; others high degrees and lower A levels; others lower degrees and high A levels; and one lower degrees and lower A levels”; • Discovered the PAR for each band; and fi-nally• Discovered how far the PAR rate for each band varied when the respondent’s age and ethnic background were factored in.

Though perhaps predictable, the results were nevertheless striking and potentially of some value both to aspirant barristers and to those who are carrying out the current BVC review, and for that reason have been shared with the BSB.

The key headlines were as follows:• The best PAR is for those with both top de-grees and high A level scores, and if anything A level counts more than degree. So for ex-ample:o The vast majority of those with a 1st and 340+ UCAS points from A level had obtained pupillages, whereas the PAR was significantly lower for those with a 1st but less impressive A level scores. o The PAR for respondents with a 2(1) and less than 340 points was only slightly high-er than the PAR for those a 2(2) and 340+ points.• In each band the PAR for Russell group graduates was significantly higher than that for graduates of other universities. Indeed, almost certainly reflecting the weight which pupillage committees attach to A level scores, Russell Group 2(2)s fared far better than oth-er universities’ 2(1)s.• Age seemed to make little difference• The picture on ethnic background is some what contradictory.o On the one hand, minority ethnic students in the top bands had an even higher PAR than their white counterpartso On the other, a much higher proportion of all minority ethnic students than of all white students are in the “lowest” PAR bands (eg have relatively weaker degrees and/or A level scores).

For those considering a career at the Bar, the messages from these findings are pretty clear and will, almost certainly hold true, no mat-ter which provider they select for their BVC:• Think once, even if you have (or can con-fidently predict) a 1st class degree and left school with at least 340 UCAS points. Though you’ll almost certainly obtain a pupillage and to practise as a successful independent bar-rister will prove a hugely challenging and at-

tractive way of making a living, yet prospects for the Bar have never been more uncertain and you’re very well qualified for a wide range of other jobs.• Think twice if your degree is lower than 2(1) or you left school with less than 340 UCAS points.• Think twice again (and then some) if your degree is lower than 2(1) and you left school with less than 340 UCAS points• Think one time less if, even though your de-gree is lower then 2(1), you obtained it from a Russell Group university.

For those in the BSB and the Bar Council who are currently reviewing the BVC, and entry to the Bar more generally in the wake of the Neuberger Report, the messages are, per-haps, more complex. So too are they for the BVC providers who are nervously awaiting the outcome of this review.

This is most especially the case in relation to the debate over whether the raise the entry requirement to a 2(1) degree.• At first sight the findings seem to lend strong support to those who have been urg-ing the BSB to do just that.• However, because only a very small pro-portion of “2(2)s” – almost all of them with 340+ UCAS points and Russell Group degrees – now obtain pupillages anyway, it would have little impact on the overall numbers or the academic standards of those entering the profession.• It would certainly reduce the number of BVC students, and by the same token the number of unwelcome applications which pupillage committees have to wade through each year.• However if the intention is to protect those with little or no prospect of pupillage from embarking on the BVC with all its associated costs and risks, then the College’s findings suggest that any change in entry require-ments ought to be expressed more in terms of UCAS points than of degree classes.• In either case, for the reasons given above, it would have a disproportionate impact on the number of BVC students from minority ethnic backgrounds.• The overall impact upon BVC providers will, of course, depend on a wide range of factors, including, most importantly the academic profile of their BVC students.

So, whatever the BSB eventually decides about entry standards, the content of the BVC, or the rules which will govern barris-ters in independent practice, LDPs, or ABSs, a career at the bar is not for the risk averse, not for those with low self-esteem, and not for those who see a proper work-life balance as requiring a 9-to-5 day and a 5-day work-ing week. No change there then.

Richard de Friend,Director, College of Law, London, Bloomsbury-of Legal Disciplinary Partnerships, and from 2012 of Alternative Business Structures.

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