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the barrister

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ESSENTIAL READING FOR BARRISTERS
11 th J anuary 2010 - 31 st M arch 2010
E st . 1999 price
£3.00

HILARY TERM ISSUE www.barristermagazine.com ISSN 1468-926X

Legal services reforms – some unresolved Features


questions
Regulation is an inescapable feature of modern now been enacted.
3 Barristers and Experts

Mark Solon, in The Barrister 21st


December 2009, gave guidance as
society. No longer can any group of service At the same time, it has to be appreciated to practical steps when working with
experts at civil trials. This article will
providers, even a group as ancient and reputable that regulation address some key elements, which
are necessary before the practical
as the Bar of England and Wales, claim to alone, though it steps are reached.

remain exclusively self-regulating. A regulatory may establish By Ben Beaumont, Clarendon


Chambers, FRICS, FCIArb,
framework has to be established so as to ensure a minimum Arbitrator, Mediator

that the public interest is adequately protected standard, is not

in the manner in which barristers provide enough. In the


6 Wake Up, Wake Up

As far as the Bar in England & Wales is


concerned the very structure, from the
their service. Not even MP’s now claim to be end, the only way foundations up, within which business
is done is changing but, to all outward
immune from a statutory system of regulation. in which a client Stephen Hockman QC, Head of appearances, the Bar and its constituent
Six Pump Court Chambers chambers do not seem to be responding
Indeed, recent events concerning MP’s show the can be guaranteed to these changes.

necessity for a statutory framework such as has a good service from his lawyer is if that p.32 By Ian Dodd, Director,
Bar Futures Chambers

8 Legal issues in dementia care:

Incomplete plans to slash advocacy fees the Nuffield Council’s report

When the Nuffield Council on Bioethics


will hit access to justice began an inquiry into the ethical issues
arising in the context of dementia it was
clear that a number of problematic legal
issues would also be raised.
The on-going Ministry of Justice and Legal latest cuts lack clarity, which is worrying when
By Jill Peay, Professor of Law,
Services Commission programme of slicing it will potentially have such a detrimental impact London School of Economics

chunks off the legal aid budget is now in the on an issue of the highest importance – access

process of reaching into defence advocacy fees. to justice.

The MoJ proposals in its Legal Aid: Funding


News
p.20 New professor of law launches first
Reforms consultation, aim to cut criminal defence The key to taking full account of the likely major study on impact of Asbos on
young offenders
advocacy rates, a move which is of concern to the impact of the cuts is to have a detailed impact
p.21 Senior Government Lawyer Joins
Law Society as well as, not surprisingly, the Bar. assessment. The Society is concerned at the Exchange Chambers

It would be surprising to see a MoJ consultation paucity of the impact assessment of the proposals
Publishing Director: Derek Payne
proposing increases in rates, given the well- for cuts to advocacy fees. 0845 5190 176
email: info@barristermagazine.com
known budgetary constraints under which they
Publishers: media management corporation ltd
are operating, but the reasoning behind these The reason given for this is that this is p.10 Design and Production: Alan Pritchard
email: info@soinspire.me.uk

020 7969 5575


Bespoke tax advice for barristers
www.haysmacintyre.com Chancery Lane, London
the barrister 03
Barristers and Experts
Mark Solon, in The Barrister 21st December 2009, gave guidance as to practical steps when
working with experts at civil trials. This article will address some key elements, which are
necessary before the practical steps are reached.

By Ben Beaumont, Clarendon Chambers, FRICS, FCIArb, Arbitrator, Mediator

T
here can be no better researched because he considers that 35 is to facilitate more expeditious and

take guidance than insufficient data is available then this must economic justice. To refuse to accept a joint

the seven key duties be stated with an indication that the opinion report when it is the result of acceptance by

and responsibilities is no more than a provisional one. . . the parties is not productive.

set out by Sir Peter

Cresswell in National (6) if after exchange of reports, an expert Expert instructions.


Justice Compania Naviera SA v Prudential witness changes his view on a material There may be only one area where expertise

Assurance Co Ltd ("The Ikarian Reefer") matter, such change of view should be is needed, or there may be more. Parties

[1993] 2 Lloyd's Rep 68. He said that the communicated . . . to the other side without should not be overawed by the fact that in

duties and responsibilities of expert witnesses delay and when appropriate to the court; a complex dispute a variety of experts may

included the following: be necessary. It is for the parties to put their

(7) where expert evidence refers to case to the judge when seeking permission to

'(1) expert evidence presented to the photographs, plans, calculations . . . survey call these experts to sustain the need for their

court should be and should be seen to reports or other similar documents these reports. It may be that some of the reports of

be the independent product of the expert must be provided to the opposite party at the the various experts will be agreed by the other

uninfluenced as to form or content by the same time as the exchange of reports.' side. However, the other parties may decide

exigencies of litigation; to appoint their own experts to dispute some

These duties and responsibilities have now elements of the claimant’s reports. Where

(2) an expert witness should provide been incorporated in Practice Direction 35. there is continuing disagreement the court

independent assistance to the court by way will order the experts to meet and attempt

of objective unbiased opinion in relation to I want to touch on the following areas of to agree. With experts of experience and

matters within his expertise . . . An expert importance in a dispute requiring expertise: confidence very often there will be agreement

witness in the High Court should never joint reports; expert instructions; expert as to a very large extent of the matters in

assume the role of advocate; qualifications and education; video assistance dispute. Two or three key matters may be

for experts; and finally who instructs the left to be disputed. In that event, it would

(3) an expert witness should state the facts or experts, solicitor or counsel. be unfortunate if any joint expert were to be

assumptions on which his opinion is based. ordered to replace the two disputing experts.

He should not omit to consider material facts Joint reports It would be preferable for the court to hear

which detract from his concluded opinion. . . While it is right to say that judges do not have the evidence on the issues where the experts

to accept expert evidence even where it is disagree and come to a view itself.

(4) an expert witness should make it clear given by a court-appointed joint expert it will Expert qualifications and education

when a particular question or issue falls be an unwise judge who ignores the report

outside his expertise; and evidence of the joint expert, preferring Many experts will be recommended to parties

his own expertise to that of the appointed or known to parties. Other experts will be

(5) if an expert's opinion is not properly expert. The whole point of Practice Direction unknown to the parties. Who so ever these
04 the barrister

experts are they will not be afraid of producing not become the appointed experts. However,
The barrister magazine
originals or certified true copies of all their they assist the solicitors to focus upon the
cannot accept responsibility
qualifications. Parties should be aware that areas of expertise that either are immediately for information supplied

second to none.
there are experts with considerable court apparent or will become apparent. Although by other parties, views
expressed may not
there is an initial increase in cost by reason of
experience, who has been eventually found to necessarily be that of
have little or no qualification. The time taken
this appointment the subsequent cost savings the editor or publishers.
as well as increase in confidence by reason
to verify qualifications is well spent. If the
of knowledge that the litigation team are
expert is too proud or embarrassed to comply
focusing on the right issues are more than
willingly with the request the party has the
counterbalanced. On this point, it may well
wrong expert.
follow that when counsel is appointed he and

the expert or experts may identify different


Video assistance.
aspects of the issues in dispute, which need
It has proved very worthwhile whether expert opinion. This is another reason, where
the expert is of 20 years experience or 2 possible, to appoint counsel at the earliest
weeks for the party to invite the expert for a possible opportunity to gain substantial cost
confidence building meeting. At that meeting saving benefits in the long run as balanced

the instructing solicitor will ask the expert to against the initial brief fee.

answer two or three questions as if at a trial

and view the result, which has been recorded Ben Beaumont, Clarendon Chambers FRICS,

by videotape. The only persons present will FCIArb, Arbitrator, Mediator

be the expert and instructing solicitors, or

sometimes counsel. It is then that personal

projection, mannerisms and other matters

which can detract from the image of an

otherwise perfect expert can be identified.

A simple example was an expert, whose

evidence cost $1 million in preparation came


What is JustCite?
to trial and chewed gum throughout the trial,
JustCite is a legal search engine and citation index that cross-references case
much to the intense irritation of the trial
law, legislation and journal articles, then automatically links to full-text sources.
judge.

Why has JustCite become so important to barristers?

• Legal Journals on line • For any given case, JustCite clearly displays how other cases and legislation have
been considered and applied, along with subsequent cases and related articles. This
Instructions to experts.
• Law & Politics Links • comprehensive overview means you can prepare legal arguments with complete
Frequently a client will be certain as to what confidence.
expertise will be necessary. Solicitors will • International Law Journals •
act upon that certainty and appoint expert or
• Research Material •
experts accordingly. As the case develops it

may well be the case that the appointed expert • Expert Witnesses •
Citation innovation
discovers that an area expertise has moved
• Tenancy Vacancies • +44 (0)20 7284 8080 www.justcite.com
away from his own. It is recommended that

solicitors appoint expert advisers from the www.barristermagazine.com


outset. These expert advisers may or may
06 the barrister the barrister 07
Wake Up, Wake Up
bringing cash into the firm? The Bar needs go nowhere near the fundamental reforms this fully yet and that no chambers has

to be alongside its clients as this happens and which are required to enable The Bar to installed this useful arrangement. Whilst

contribute positively and constructively. compete with and work alongside its solicitor many chambers have recruited experienced
As far as the Bar in England & Wales is concerned the very structure, from the foundations The regulatory regime for the Bar looks clients. Barrister only partnerships (BoPs) business managers with backgrounds other
up, within which business is done is changing but, to all outward appearances, the Bar and its set to be overhauled and there needs to are restrictive and discriminatory and the than the Bar there is the risk that these will
constituent chambers do not seem to be responding to these changes. be some determination and urgency about signal failure to address the management be a wasted asset unless they are given the

the considerable reforms required to the training and experience needs required to authority to go with their responsibilities.
By Ian Dodd, Director, Bar Futures Chambers way the Bar is regulated if barristers are to ensure that barristers are fit to be managers Seemingly, one such recruit recently resigned

T
be empowered to compete with those who of LDPs is staggering. The recently published after a short period as a chambers CEO
he Legal Services Act has significant problems and they are all to do savings, cutting support staff, marketing, would do their work for them. A modern Bar Training Regulations comprehensively saying, “I didn’t get an MBA to be a janitor”.
laid out the landscape with the lack of money. There may be rear- training and bonuses and putting pressure code of conduct and more flexible approach and definitively covers all the professional
for the legal profession guard actions by the Bar which might make on suppliers’ prices, then had to move into to the way chambers are structured and how requirements but there is, as yet, no Ian Dodd, Director,
and allows ingenuity the cuts in fees more palatable but the plain losing fee-earners in areas where worked they can best deal with clients are needed companion publication on commercial and Bar Futures Chambers 3rd Floor
and entrepreneurial fact is that cuts are here to stay and will had collapsed, conveyancing, property etc, to allow forward-looking chambers to take business matters. 5 New York Street
adventure wide scope. A deepen. Whichever government is in charge then into making savings in core areas like advantage of the opportunities presented Manchester
few chambers are rising to the challenge and the pleas of the Bar will go largely unheard salaries, paying commission only, losing good by the LSA. The BSB recently announced The LSA allows for a Head of Legal M1 4JB
new initiatives and markets, some overseas, as the gaping chasm in the nation’s finances fee-earners etc. When all that proved not to that they had accepted the recommendations Practice (HoLP) and a Head of Finance and DX:709046 Manchester 7
are being explored with commendable and the ever-growing National Debt cannot have worked those partners who had, for of their ABS Working Group concerning Administration (HoFA) to run chambers in
vigour. Most, though, seem to have missed be ignored. With the prospects of a 20% good corporate reason, left their own client barristers and Partnerships. Welcome, even a professional and business like way. It is
the advent of the LSA, failed to realise its VAT rate, more and more taxpayer’s money base behind and couldn’t support themselves though they were delayed, as these are, they significant that the BSB have not addressed
potential and consequences and have slipped required to improve basic services and all the on their own fee income came in for a culling.

back into a light torpor hoping that it will all other more urgent calls on the public purse The legal press has carefully catalogued all of

just go away. the chances for improvements in fees looks this and also the demise of those solicitor’s

bleak. Any utterances from the Conservative firms for whom it was all too late. This may

The bad news is that it won’t and those who party to right the wrongs need to be regarded not be the deepest recession the UK has

think it will could be lost as other providers as election promises and treated with care suffered but it’s been the best reported.

of advocacy and services hitherto associated and suspicion.

with the Bar are planning to take over. The All these pressures will, if they haven’t

good news is that there are tremendous already, work through to barristers’ fees and,

opportunities for the Bar to forge new and unless fees are set or capped, clients will be

durable links with clients, find new markets The Bar’s main client base, solicitors, have looking to save money from their work with

and income streams and create a profitable gone through a bad time and the survivors the Bar.

future. will emerge leaner, meaner and determined

to get more value for money. The growth Additionally, many major solicitors’ firms

Well before the current economic problems of some solicitor’s firms in the past few are refining their money-saving general

commercial financial pressures were growing years has seemed unstoppable and even the business process outsourcing (BPO) activity

but some businesses chose to disregard them. smaller players were taking on the expensive to more specific legal process outsourcing

Those in charge of publicly funded work did trappings and staff levels of some of the Magic (LPO) solutions. Whilst these are, currently,

react quickly, though, and the reduction in Circle. As hard times bit many seemed not to restricted to things like secretarial, research,

fees for family and crime work began long appreciate the possible depth and length of file preparation tasks etc more solicitors will

before Lehman Brothers catapulted world the recession and planned only for the near sign up and begin to move their LPO search

economies into free-fall future and failed to take the opportunity to up the complexity/value chain. How long

redesign their businesses for the aftermath. might it be before advocacy work becomes

Even the slightest acquaintance with the Consequently, some are suffering death by an outsourced activity as solicitors’ fee-

Bar’s client base reveals systemic and a thousand cuts and, having taken the easy earners relinquish jobs that aren’t core to
08 the barrister the barrister 09
Legal issues in dementia care:
future care, we suggest this is best achieved guidance available. We recommended that being ‘like a non-person’. Dementia needs
with early planning and that such plans the Office of the Public Guardian work to become an accepted, visible part of our

the Nuffield Council’s report should be reviewed regularly. together with the Department of Health to
produce such guidance; and that the UK
society, and people with dementia should
be enabled to take part in the activities they
Welfare attorneys Health Departments generally should draw enjoy.
When the Nuffield Council on Bioethics began an inquiry into the ethical issues arising in the Lasting powers of attorney enable people to attention to the importance of providing
choose others to act on their behalf either in support to carers to obviate the need for the Service providers such as shops, leisure
context of dementia it was clear that a number of problematic legal issues would also be raised. respect of their property and financial affairs use of restraint. facilities and restaurants have a legal duty
or in relation to their health and welfare. under the Disability Discrimination Act
By Jill Peay, Professor of Law, London School of Economics The report acknowledged the advantages Regulations governing restraint in care 1995 to make ‘reasonable adjustments’ to
of individuals appointing someone to make homes make clear that it is only to be enable people with dementia to use their

W
decisions about their future care, since such used on an exceptional basis. The Mental services. Often they may not realise this.
hilst the Mental can’t. In many cases it will be clear whether may be quite different. Both are an expression arrangements can be sufficiently flexible to Welfare Commission for Scotland has issued Moreover, under the amendments made to
Capacity Act 2005 a person with dementia does or does not of a person’s autonomy and neither can take account of changing circumstances, detailed practical guidance on what this ‘last the Act in 2005, public bodies, such as the
has been widely have the capacity to make a particular automatically take precedence. something that an advance refusal of resort’ use of restraint might entail and we NHS and local authorities, have a general
welcxomed by decision. However, there will be times when treatment might find problematic. Appointing recommended that such advice be made duty to promote equality of opportunity
those working in the person’s ability to make a particular We concluded extra guidance was needed in a welfare attorney can be a good way for available to all those working in care homes, between disabled and other persons. We
the field, it was decision will be difficult to determine. The the Code of Practice on how past and present people to plan for a time in the future when particularly since the evidence suggests that recommended that the Equality and Human
evident that areas remained where extra implications of this are significant: for if wishes and preferences should be taken into they cannot make decisions themselves, and restraint is widely used in practice. Rights Commission should highlight these
guidance would be helpful, particularly for people are assessed as having capacity they account where these appear to conflict. The a way in which autonomy can be enhanced. legal duties to ensure people with dementia
those working day-to-day in caring for people will be free to choose their own course relative strength of the person’s wishes, the are not subject to unjustifiable discrimination.
Confidentiality
with dementia. of action, whereas if they are assessed as degree of importance of the decision, and the There are concerns, however, that some Indeed, relatively minor adjustments could
The MCA Code of Practice stipulates that
lacking capacity they become subject to the amount of distress being caused should all be people may find it too expensive or do much to make services more accessible
health and social care staff should only
The Council set up a Working Party, chaired MCA and decisions will be made for them, important factors to consider. complicated to nominate a welfare attorney. to people with dementia, such as clearer
disclose information about somebody who
by Professor Tony Hope, Professor of Medical albeit those decisions must be considered to In principle, we believed that the process signage, strong lighting, and an increase in
lacks capacity if it is in the best interests
Ethics at the University of Oxford, in 2007. be in their best interests. Advance decisions and advance care of appointing a welfare attorney should be staff awareness of dementia.
of the person concerned to do so. The
The Working Party, of which I was a member, planning free of charge, and that where people are
Code of Practice also suggests that carers
included medical experts in dementia, but Problems, of course, remain with the issue The MCA makes specific provision for first diagnosed with dementia, there should In conclusion, law and ethics manifestly
should not normally need to receive such
also drew on other relevant expertise, so of borderline capacity. To avoid, or at least people to make ‘advance decisions’ to refuse be a mechanism actively to support them in intersect in the area of dementia care. Yet
information from professionals as they will
as to consider the ethical, legal and social reduce, these the Working Party concluded treatment, even if that treatment may be nominating a welfare attorney if they wish so greater clarification of how the law should
already have their own knowledge of the
issues. To inform our deliberations we held a that greater emphasis should be put on joint life-saving. It is right for the law to allow to do. We also recommended that the Office be applied by those who juggle with the day-
person to guide their decisions. The Code
public consultation and spoke to people with decision making with trusted family members. people to make an advance decision to refuse of the Public Guardian should be monitoring to-day dilemmas entailed in such care could
therefore appears to place an emphasis on
direct experience of living with dementia and In practice, few of us make decisions without treatment if they wish to do so. However, whether the current practical arrangements both alleviate carers’ anxieties and promote
withholding information, rather than sharing
those working in the field. The response the consulting others or seeking out relevant an advance refusal of treatment may not are hindering those who might otherwise autonomous decision-making by those with
it, and fails to focus on why carers could
Council received from the public during this information. In this sense ‘autonomous’ always work in the way the person expected. wish to appoint such an attorney. dementia.
need information. In contrast, the Scottish
process was unprecedented, confirming our decision-making is rarely done in isolation: We therefore welcomed the recent NHS
Code of Practice for professionals simply
view that dementia is an issue that causes decisions are supported by those close to guidance2 that provides a model advance Using restraint Jill Peay was a member of the Nuffield Council
notes that it will be necessary to consider
real ethical dilemmas for those involved us and in the light of those relationships. refusal form and suggests a number of Being restrained in the absence of consent can on Bioethics’ Working Party on dementia.
the adult’s right to confidentiality and any
in care. The Working Party’s conclusions And the MCA recognises this insofar as it helpful safeguards. We were also concerned be distressing and demeaning: and restraint For more information and the Council’s
previously expressed wishes about disclosure
were published on 1st October 2009 in the requires both consultation with others, and about the uncertain legal position that could can come in a number of forms, including the conclusions in full, see:
of information, reflecting a more nuanced
report Dementia: ethical issues.1 The report that everything should be done by way of arise where a person acted inconsistently use of medicines and ‘innovative’ strategies www.nuffieldbioethics.org/dementia
approach.
makes policy recommendations in a number assistance to enable individuals to take their with their advance decision once capacity such as leaving a person in a low seat that
of areas, including diagnosis, access to care, own decisions. Our report recommended had been lost: we recommended that the they cannot get out of without help. Whilst 1 Nuffield Council on Bioethics (2009)
We think that the guidance in the MCA
tackling stigma, and providing support for that the Code of Practice made under the Department of Health act urgently to clarify it may be legal for a person to be restrained Dementia: ethical issues (London: Nuffield
Code of Practice on when it will be in a
carers. This brief article summarises the MCA should be amended to emphasise the this with additional guidance in the Code of if this would prevent harm either to the Council on Bioethics). Available at: www.
person’s best interests to share information
Council’s conclusions in relation to mental importance of good communication and Practice. person or others, such restraint needs to nuffieldbioethics.org/dementia
is too restrictive. We recommended that
capacity and disability discrimination supportive relationships with families, so be a proportionate response to the harm 2 NHS End of Life Care Programme and
the requisite professional bodies should
legislation. that joint decision-making is encouraged In end of life care, the term ‘advance care envisaged, and there is insufficient guidance National Council for Palliative Care (2008)
reconsider this guidance and give greater
wherever appropriate. planning’ is used for a broader approach in England and Wales on what would Advance Decisions to Refuse Treatment: A
weight to the legitimate reasons why sharing
Making decisions to future planning. As well as the kind of constitute a proportionate response. guide for health and social care professionals
may be necessary to enable carers properly
Joint decision making Past and present wishes medical treatment the person would want, or Carers, in particular, may find that a lack of (Leicester: NHS End of Life Care Programme;
to care for their loved ones.
The Mental Capacity Act (MCA) sets out not want, an advance care plan may include outside help can leave them little choice but London: National Council for Palliative Care).
how a decision can be made if a person is When deciding what course of action is in their wishes about particular likes and to restrain the person for whom they care,
not able to make that particular decision a person’s ‘best interests’, both their past dislikes, where they would like to be when in order to get on with essential household Including people with dementia in
for themselves. It must, however, always be wishes and feelings and their wishes and they are dying, and who they would most tasks. This can cause anxiety to both the society
assumed that a person does have capacity to feelings now must be taken into account. want to be with them. Where individuals carer and the person with dementia, an Dementia still carries a stigma. We heard
make a decision, until it is shown that they However, sometimes past and present wishes wish to make such decisions about their anxiety that might be allayed were better one person describe having dementia as
10 the barrister the barrister 11
the first of a two-stage consultation, order to ensure a continued supplier base of to what the Ministry concludes, this does Most worryingly, it found that only 48 per
p.1
and that the detailed rates, together sufficient quality – an argument, incidentally, not mean that the fees are acceptable or cent of solicitors’ firms said they were likely

with a full impact assessment, will that applied equally to solicitors’ fees, but sustainable. to be conducting legal aid in five years time.

be provided in a second consultation. was not accepted in respect of our side of the The reasons given by firms proposing to pull

profession. Many practitioners work in mixed practices, out included unprofitability, the prospect of

However, we feel that an initial impact meaning better paid work subsidises the tendering and retirement.

assessment should have been undertaken at The conclusion that prosecution fees must less profitable, but this, together with the

this stage, to assist the Ministry in deciding be acceptable because advocates continue cab rank rule, also often makes it difficult to Therefore the future of criminal legal services

whether or not to continue with the proposals, to undertake the work is simplistic and decline prosecution work. is already at risk, adding to it with the current

and in determining how to moderate them to illogical. Prosecution advocates do not work proposals will only create a shortfall in this

mitigate any adverse impacts that may be in the same way as defence advocates; The Ministry has accepted that advocacy area of service provision.

identified. many of them are employed as ‘in-house’ costs have been brought under control by the

advocates, and the way in which preparation AGFS, and it is therefore unclear what has

The prime basis put forward for reducing is undertaken by the defence and prosecution now changed which would require further The Society will continue to put the interests

advocacy fees is that the Crown Prosecution is very different. drastic cuts. If the Ministry needs to introduce of legal aid solicitors and the overarching

Service has been working to fees that are less new cuts to address its budgetary constraints, issue of ensuring access to justice first and

than defence fees. The prosecution often have the benefit of a we would have thought that there were other encourage the MoJ and LSC to work with us

whole team working on one case, compared targets that could be looked at first. to address the problems faced by the criminal

There is an attempt to justify this with to the defence who may only have one or two defence services sector as highlighted in the

reference to concerns expressed by the lawyers. The Law Society does not therefore Cuts to defence advocacy fees risk dealing NAO report. We would urge the Ministry to

Criminal Bar Association at ‘the marked accept it as proven that this is a ‘like for like’ another blow to access to justice. We are look again to find ways to mitigate the impact

discrepancy’ between prosecution and comparison. fighting against the introduction of best value of these proposed cuts.

defence fees. We understand from the Bar tendering for criminal legal aid contracts and

Council however that this concern was in fact We also understand that far from finding a range of other plans which look to control Desmond Hudson is Chief Executive of the

raised with regard to the fact that prosecution the current fees viable, CPS advocates have the legal aid budget by attacking fees, rather Law Society

fees were too low, and that these should be in fact been ‘hanging on’ in the reasonable than by addressing the true drivers of costs

raised to bring them into line with defence expectation following the Carter review that – new laws, new processes and increased

fees – not the other way round. their fees would be negotiated up to bring volumes of cases as a result of the recession.

them into line with the levels in the Advocates The National Audit Office recently published

The discrepancy arose when Lord Carter, Graduated Fee Scheme (AGFS). details of their review into value for money

whose brief did not include prosecution fees, into criminal defence services, which

advised Ministers that defence advocacy There are numerous ways in which both revealed a Legal Services Commission which

fees needed to be increased to take account defence and prosecution lawyers can manage has little understanding of its suppliers (law

of inflation over the many years since the to continue to work within a fee regime that firms) and a poor record in trying to manage

previous time the fees had been increased, in does not pay at reasonable levels. Contrary change.
12 the barrister the barrister 13
Locked up and locked out: Revealing the shocking
programmes do not have the listening of speech and language disorders amongst therapists, reflecting their specialist skills
and speaking skills that the programmes young people in custody. It recognises in enabling effective communication to take
demand3.
facts about offenders with communication disability
the importance of the current speech and place within the court process.
language research that demonstrates the
• Studies have shown that around impact of such a service on young men whilst In order to raise awareness and bring about
35% of offenders have speaking and listening in custody. They will use the outcomes of change, the RCSLT has recently established
By Jane Mackenzie, Policy Officer, Royal College of Speech and Language Therapists (RCSLT) skills below level 1 of the National Curriculum. the study in an attempt to influence possible a Children’s Communication Coalition (CCC)

T
This is equivalent to that of five year old child. further developments in this area.” which brings together national organisations,
experts and service users who are speaking
he National Association understanding of the centrality of speech, a short attention span. Children who find
I’d also like to draw your attention to the fact • Bradford youth offending team: out for children with communication
Probation Officers (NAPO) language and communication among policy it difficult to concentrate and remember
that communication disability can present October last year, a 6-month pilot project disability in the justice pathway. We are
recently released the makers and commissioners nationally and information and may have problems in
as disruptive anti-social behaviour. The was completed which examined the speech working with the government to seek for the
results of a study carried locally, professionals and service providers, understanding what is said to them.
following case study illustrates this: and language needs of their clients. Their following changes within the justice system.
out with support from the and sometimes parents and families
conclusions found that:
Royal College of Speech themselves. It follows that insufficient priority These are the very basic foundation skills
In Red Bank secure children’s home, five out • Put in place an holistic
and Language Therapists (RCSLT) which is attached to addressing speech, language needed by children when they start school in
of seven young offenders in one section had a Over 74% of the case load had communication communication screening for all pre-school
highlights the urgent need to address the and communication needs.” order to enable them to learn, read, write and
learning difficulty and challenging behaviour, disability. children in order to identify these vulnerable
poor communication skills of offenders. socialise.
all had a communication disability. Staff children early on and provide the support
Communication disability includes speech
were involved in physically restraining these Their communication disability was nearly they need;
NAPO’s findings reveal that the vast majority and language difficulties. It is the underlying We know that communication disability is
young offenders on two to three occasions always undiagnosed, and both the young
of those on probation or parole supervision and most pervasive feature of many disorders much more common amongst pre-school
every day. After receiving communication people and the staff were unaware of the • Develop a communication screening
have low educational attainment, learning such as autism, dyslexia, learning difficulty, children from disadvantaged backgrounds,
training and guidance from the speech and difficulties and how to address them. process for children on entering the justice
difficulties, problems expressing themselves learning disability and challenging behaviour as high as 55% in some areas.
language therapist, the staff were able to pathway in order to identify these vulnerable
or even understanding what is being said to
reduce the number of restraints used to two YOT staff recognised a need for the children at the earliest point possible and
them. Up to 10% of young children in society have a Research shows that a third of children with
per week. This example of a positive practical assessment and intervention with clients provide the specialist support they need;
communication disability. enduring speech and language difficulties
intervention has been repeated many times with a communication disability, but lacked
As a barrister, or other legal professional, do will go on to develop mental health problems.
throughout Red Bank. the confidence in doing this. • Provide communication skills
you sometimes notice that clients or witnesses Shockingly, this figure leaps to over 60% of Studies show that they are also at higher risk
training for everyone working with children
seem to have communication difficulties? In children and young people in contact with of school failure and associated antisocial
So the use of targeted therapy, delivered by Speech and Language Therapists are uniquely who offend;
fact, a large number of people of all ages who youth justice services in England, having behaviour, which can lead to truancy and
speech and language therapists can rapidly trained to assess communication skills,
are in contact with criminal justice services communication difficulties2. This mirrors exclusion from school and with resulting
make a significant, measurable difference diagnose language difficulties and design • RCSLT model of service delivery of
have significant communication difficulties. international evidence from Australia, the criminal involvement in over half of cases.
both to the vulnerable young person, and the therapy programmes. They are able to work speech and language therapy services within
This article will explain why this is, and will USA and Canada showing similar levels of
staff working with them. directly with individuals and indirectly with the Justice Pathway should be adopted.
outline how various approaches, especially difficulty within each county. The reality is that too many children fall
other staff to create a better communication
speech and language therapy, can assist through the net, their needs are not identified
International evidence demonstrates the environment. I would be delighted to hear from anyone
these disadvantaged individuals. There is no doubt that this figure is even early enough, and therefore they don’t receive
benefit of speech and language therapy with reading this article who would like to get
higher with adults who offend. the intervention they so desperately need.
this group of vulnerable children. Their added value is acknowledged wherever involved with the work of the CCC. Please
We all recognise that there are complex
they work along the justice pathway, and one contact me for information on how we can
reasons, including health, social and At Rampton high security hospital the Further along the pathway, the screening
• Improving literacy and social of their crucial contributions is in designing work together to improve the life chances of
emotional factors, why some people are born well established speech and language and identification of these children once they
skills is essential to reducing re-offending. and delivering communication skills training children with communication difficulties.
disadvantaged. therapy team screen all new patients for come into contact with the justice system
Research shows that speech and language for all justice staff, tailored to meet local
communication disability. They report: would enable targeted help to be given for
therapy targeted at improving the language needs.
Born primed to fail. both the child and the team working with
skills of individuals can significantly reduce The RCSLT is currently supporting the 1 Dec 2008
“The vast majority have persistent them. Sadly this does not happen.
the number of them who go on to offend5. development of a national training package, 2 Bryan et al
One area which has been neglected until communication needs which haven’t
based on the experience and expertise 3 Learning and Skills Research Centre for the
recently is the strong relationship between previously been identified or addressed” Communication disability has a profound
• Polmont YOI in Scotland: SLT of expert forensic speech and language Prison Service
communication disability and offending impact on the individual’s ability to benefit
intervention was shown to enable offenders therapists. 4 Snow and Powell Developmental Language
behaviour. This may largely be due to the As a society we need to ask ourselves from, and indeed cope with, the prison
to engage with educational and training This training will provide an excellent Disorders and Adolescent Risk Current Issues
fact that this is a hidden disability, but it is why do offenders have such high levels of regime. It is very difficult for people with
provision offered by the Prison Service opportunity for justice professionals to in Criminal Justice 16(2) Australia (2004)
one which has a massive impact on all other communication disability, and why has it a communication disability to access
once their ability to communicate had been improve their communication skills in a 5 Hamilton 1999
areas of development and emotional well- not been previously identified and diagnosed educational and rehabilitation programmes
improved . targeted and appropriate way.
being. earlier in their lives? or to cope with a regime that relies heavily
In 1999, The Youth Justice and Criminal
on information presented in a written form
• Brinsford YOI and Werrington Evidence Act provided for a number of
The Bercow Review1 stressed the fact that One of the most significant factors in which is beyond their capacity to understand.
juvenile centre: Two-year research project measures to assist vulnerable or intimidated
the ability to communicate is a basic human predicting future disadvantage and antisocial
was carried out in 2004, led by Professor witnesses to give their best evidence in court,
right , which is sadly often not recognised as behaviour in young children is a delay in • Over 60% of young offenders do
Karen Bryan SLT, University of Surrey, to including provision for the examination
being such. developing communication skills. It may not have sufficient verbal skills to cope with
measure the need for and benefit of SLT. of a witness to be conducted through an
surprise you to hear that communication the regime or to benefit from education and
intermediary approved by the court.
“The ability to communicate is an essential disorder is the most common disability seen rehabilitation programmes because of their
The Prison health service concluded: This paved the way for the successful
life skill for all children and young people in childhood. poor language and literacy skills.
Witness Intermediary Scheme, which has
and it underpins a child’s social, emotional
"Through Professor Bryans' previous work now been rolled out nationally. Over 80%
and educational development. Evidence By this I mean children with poor vocabulary, • Over three quarters of all those
Prison Health is aware of the high prevalence of intermediaries are speech and language
illustrates that there is insufficient who are slow in starting to speak, often with taking part in enhanced thinking skills
14 the barrister the barrister 15
Although the Ministry of Justice has spent the
Ashworth’s suggestion would also recognise hand, wraps up the criminality in a single a bridge which struck a train as it passed
that we do not have complete control over word, merging the defendant’s act with the beneath and killed the guard (DPP –v-

last two years reviewing homicide law, there still


the outcomes of our actions, that there is ultimate consequence and that fails to reflect Newbury and Jones [1977] AC 500). There
almost inevitably an element of luck as to the the true limitations of the defendant’s moral is no material distinction between throwing

remains a serious problem around “one-punch


precise consequences of what we do, as well culpability. stones at windows (or trains) which result in
as bringing a sense of proportion between the death and throwing a punch at a person, with

killers” which means punishment for bad luck,


risk and the ultimate outcome for which the A final suggestion the same outcome.
defendant is held liable. But the gap between
according to Barry Mitchell, Professor of Criminal Law and Criminal Justice, what was foreseen or foreseeable and the In the writer’s view this proposal is a step If therefore, the prevailing wisdom is that it is
victim’s death would obviously be reduced. in the right direction, but it is unnecessarily right to convict the one-punch killer of some
Coventry University Law School

N
Clearly, many one-punch killers would not and unjustifiably narrow. Some academics sort of homicide offence (rather than just
foresee a risk of serious harm, some might. have argued that it is right to convict one- the common assault which the single punch
early three years ago the fatal assault was a punch to the head or way.
Consider a very sober defendant and very punch killers of manslaughter because the would normally constitute), then it should be
the government set face). Whilst there's no doubt that A should
inebriated victim. The defendant throws a punch is of the same family of wrongs as of committing “an unlawful and dangerous
up a review of the not have punched B in the face, B's death was Obviously, the precise circumstances of a
single forceful punch at the victim who is causing death, namely they are both crimes act causing death”. The adjective “dangerous”
homicide law following a extremely unlikely - no-one would expect B to homicide will vary from one case to another,
overtly unsteady on his feet and off balance. against the person. But whilst that is true, here would mean that the defendant’s act
recommendation by the suffer anything more than a bruise or slight and some activities are inherently much
The victim falls heavily backwards, cracking its significance is purely descriptive: there is created a risk of causing serious, though not
Law Commission in its cut. No serious injury is foreseeable, let alone more dangerous than others. Compare,
his head against a brick wall, fracturing his no significance in the similarity of a punch necessarily fatal, injury. Conviction should
report on Partial Defences to Murder (Law death. The element of luck is so great that for example, driving – which is invariably
skull, and he dies shortly afterwards. In those and causing death to the defendant’s moral also depend on the defendant being aware of
Com No. 290, 2004, London: TSO, at para. many criminal lawyers are unhappy about a potentially fatal activity – with punching
circumstances it would not be reasonable culpability. The justification for holding the the risk when he throws the punch. The gap
1.12). The vast majority of the debate since holding A criminally liable and punishing someone in the face. Even one-punch cases
for a jury to infer that the defendant knew defendant liable for killing the victim is that between what was foreseen and the harm
then has focussed on the more serious cases him for killing B. A does not deserve to be will differ from one another in this respect.
that the victim might be seriously injured. he should not have thrown the punch because for which the defendant is held criminally
– how murder should be defined and what treated as a manslayer. The precise degree of risk – the degree of
The chances of causing serious harm might of the risks it created. A defensible argument liable would be much less than the law
partial defences which would reduce the dangerousness – will fluctuate from one
not be that high, but the defendant might be for holding the one-punch killer criminally currently allows, but the moral basis and
offence to manslaughter should be recognised In favour of the present position, it is said instance to the next. It may be possible
aware, at least subconsciously, of the risk liable for killing must surely be founded on thus the rationale for this offence would be
by the law, though the Law Commission that we cannot entirely control the outcome for experts to provide an arithmetical
nonetheless. moral blameworthiness, and not simply on considerably stronger.
did acknowledge that there should be “a of our actions and thus must recognise the calculation of the likelihood that in a given
an (albeit understandably) emotional reaction
limited review of the law on involuntary possibility that something unexpected might set of circumstances someone would die,
The Irish Solution to the fact that someone has been unlawfully
manslaughter”. The Coroners and Justice Bill occur. The fact that A threw a punch means but it would be profoundly unsatisfactory to
killed. Throwing
currently being debated in the House of Lords he effectively crossed a moral threshold and identify a particular statistical probability
In a relatively recent report, the Irish Law a punch creates
would amend the law on provocation and (to cannot complain when he is held criminally as representing the boundary between
Reform Commission shared the writer’s a risk – a risk
a lesser extent) diminished responsibility, but liable for the consequences. Moreover, whilst what was and was not legally acceptable.
reluctance to treat all one-punch killers as which is likely to
consideration of offences at the bottom end of we would not normally expect a single Any such figure would be wholly arbitrary
manslayers and suggested a new crime cause relatively
the spectrum is deafening by its silence. The punch to result in the victim’s death, we are and thus indefensible. In deciding whether
be created for these cases called "assault minor injury but Your home is an individual expression of yourself and
government has said nothing on the subject subconsciously aware that the unexpected a defendant should be criminally liable for Creating the way you live. Conquest can enhance your study,
causing death"; (see Irish Law Reform one which, as we office, kitchen, living room or bedroom so that it
since its brief paper in 2000, (Reforming does occasionally happen. On the other hand, killing another, we should look at the nature the perfectly reflects the ‘true you’. We’ve been providing
Commission, Homicide: Murder and know, might in perfect
the Law on Involuntary Manslaughter: The the main argument against the existing law is of the risk created by what the defendant the very highest quality, bespoke, fitted furniture for

Government’s Proposals, London: TSO) and that although a moral threshold was crossed, did and the victim’s death. Only if the gap
Involuntary Manslaughter, [ LRC 87 – 2008] exceptional cases, home over 4 decades and our reputation for customer
service is second to none.
at para 5.39). Whilst accepting that the result in much
it is understood there are no plans to review there is still the problem of the significant gap between the two is sufficiently close might FREE 72 PAGE COLOUR BROCHURE AVAILABLE
puncher should not have thrown the punch more serious
any other parts of the homicide law. between what was foreseen or foreseeable liability be merited.
in the first place, the Commission was harm. But the
(namely some relatively minor injury), and
concerned that ordinary people would not point is that such
The problem of the one-punch killer what the puncher is held liable for (namely What should be the bottom line for
want to put him in the same category as a risk might arise
causing death). Furthermore, there is manslaughter?
other, more deserving, manslayers. In this from other forms
One of the criticisms the writer and others the quite separate argument against the
respect the Commission were supported by a of seemingly minor
have of the current law is that it makes current law, that the offence of involuntary In deciding how close it should be, one of our
small-scale study the writer conducted in this wrongdoing; it is
it too easy for a person to be convicted of manslaughter is being stretched too far. At most eminent criminal lawyers, Professor
country about ten years ago; (see “Further not confined to
manslaughter, essentially because the law the upper end of the spectrum there are those Andrew Ashworth (Oxford University),
Evidence of the Relationship Between Legal minor assaults
pitches the minimum level of culpability too who only just avoid a murder conviction – recently argued that the defendant should, as
and Public Opinion on the Law of Homicide” against the
low. A typical example of this is what's often cases such as Hyam, where the defendant set a minimum, be aware of the risk of causing
[2000] Criminal Law Review 814 at 819, person. Thus, an
called a one-punch manslaughter. A punches fire to a house knowing that death or serious serious harm, albeit not necessarily fatal harm,
820). At the same time the Commission act of criminal
B once in the face. B stumbles over a crease harm to any occupants was highly probable, (see “’Manslaughter’: Generic or Nominate
thought that people would want the fact that damage such as
in the carpet on which he was standing, hits would now be treated as examples of reckless Offences?”, in C.M.V.Clarkson and Sally
someone had been killed to be reflected in the throwing a stone
his head against the wall, fracturing his skull manslaughter. Is it really justifiable to treat Cunningham (eds) Criminal Liability for Non-
offence. Substituting a conviction for assault at a window might
and he dies. A is guilty of manslaughter by an one-punch killers as guilty of precisely the aggressive Death (2008) Aldershot: Ashgate,
causing death would obviously separate out create the same
unlawful and dangerous act. Such cases are same offence? The reckless manslayer chapter 11). That would create a symmetry
the one-punch killers from more serious kind and level of
not unduly rare – the writer has just completed displays a far higher level of moral blame between murder and manslaughter – murder
cases, and structuring the new offence in this risk – recall the
a survey of 127 manslaughter cases since for killing his victim. Of course, the sentence only requires an intent to cause (non-fatal)
way would show much more accurately and two teenage boys
1995 and there were at least two cases where for the one-punch killer will be more lenient, serious injury, and it seems that will still be
the only violence consisted of a single punch, but that misses the point: he should not be true after the government has completed
precisely what the defendant had done – he who pushed a
CALL
NOW 0800 975 1199
www.conquest-uk.com
assaulted his victim and as a result the victim paving stone off
(as well as a small group of other cases where formally and publically labelled in the same its review of the homicide law. Professor BM1/10
died. The label “manslaughter”, on the other the parapet of
16 the barrister the barrister 17
After the War on Drugs: Blueprint for Regulation
safer products, safer behaviours, and safer by freeing up limited drug-policy resources an Impact Assessment before it comes before
using environments – the precise opposite of for proven public health interventions. Parliament, but this was not the case when
what has happened under prohibition. the MDA was enacted. As we stated during a
Unfortunately, as the sacking (as ACMD private meeting with the Prime Minister, we
“If you have had a policy in place for half a century and all it has done is increase the number of Five basic models are proposed; medical chair) of Professor David Nutt shows, there believe it is time to correct that anomaly.
drug addicts and the number of tribes associated with drugs, then it’s time to rethink that policy.” prescription and supervised using venues for remains resistance from some politicians to
Lord McCluskey, former solicitor general for Scotland the highest risk drugs and most problematic accept evidence of what actually works and Of course, the devil is in the detail and
users; a specialist pharmacist sales model, an unwillingness to engage in this debate. We inevitably different social environments will
combined with named/licensed user access believe the way forward is through the UK require different approaches in response to
By Steve Rolles, Head of Research, Transform Drug Policy Foundation and volume sales rationing for mid-risk drugs, Government commissioning a comprehensive the specific challenges they face. The book

D
such as amphetamines, powder cocaine, and Impact Assessment of the Misuse of Drugs does not seek to provide all the answers – but
ecstasy; various forms of licensed retail, and Act 1971 (MDA). An Impact Assessment rather to move the debate beyond ‘should we
rug prohibition in various all tiers of the criminal justice system. The drugs in society. Therefore we must choose
licensed premises for sale and consumption would compare the economic, social and end the drug war?’ to ’what will the world
forms has been in place prisons crisis - with over half of prisoners the policy approach that delivers the best
(familiar with pubs and Dutch-style cannabis environmental costs and benefits of current look like after the war on drugs’? Criminal
for over 100 years now, its inside for drug, or drug-related offending outcomes from our limited criminal justice
coffee shops); and unlicensed sales for the policy, and all the alternatives, at the national Justice professionals who work daily on the
historical roots traceable – being the most high profile, but the same and public health resources; in terms of
least risky products such as caffeine drinks, level, and the UN should carry out a similar coal face of the drug war, and who can bear
back to the temperance stress being carried through the police, minimising harms associated with drug
or coca tea. exercise at international level to incorporate witness to its consequences at first hand,
movement. This punitive courts and probation systems. production supply and use. The evidence
impacts on producer and transit countries. represent a vital expert voice of reason in this
criminal justice-led approach, premised on from the failure of prohibition demands that
Regulation cannot produce a drug free world debate, and we hope this book will provide a
the understandable but simplistic concept The vast sums generated by the illicit we meaningfully explore the options for legal
or indeed a harm free world – in the short To ensure this process is one behind which basis for more proactive engagement. Please
that drugs are a threat, therefore we must trade, particularly in producer and transit regulation.
term it can only seek to reduce the problems everyone genuinely interested in evidence- contact us to find out more.
fight them, and thence that drugs are bad, countries, are frequently used to corrupt
that stem from prohibition and the illicit based policy can unite, the alternatives
therefore we must prohibit them, was state institutions, police, judiciary, and Transform has now produced a detailed
trade it has created. Neither can it address modelled need to range from stepping up ‘After the War on Drugs; Blueprint for
enshrined as global policy under the UN politics, as well as providing a ready source discussion of how the legal regulation of drug
the underlying drivers of problematic drug prohibition, leaving things as they are, Regulation’ available in hard copy or free pdf
single convention on drugs 1961. The UK’s of funding for armed insurgency (fuelling civil markets could operate, proposing specific
use although it is argued it would create a far through Portuguese-style decriminalisation, download from www.tdpf.org.uk
domestic response was the Misuse of Drugs war in Colombia for example) and terrorism models for a range of currently illicit drug
better environment for doing so in the future, to legal regulation, for which Blueprint could
Act 1971, which, 39 years on, remains the (most obviously the Taliban) that can in turn products, and providing the rationale behind
by removing political obstacles and moving to be a guide. In the UK, it is now a statutory
central plank of UK drug policy. become a very real domestic UK threat. them.
a more rational evidence-based footing, and requirement for all new legislation to undergo

For a policy that has the very specific aim of It is vital not to forget that our domestic ‘After the War on Drugs: Blueprint for
creating a ‘drug-free’ society, criminalising response to drugs, not the use of drugs per Regulation’ considers the menu of options for
drug production, supply and possession se, is inadvertently helping to destabilise controls over products (dosage, preparation,
has been a remarkable failure on its own countries across the world. Widespread price and packaging), vendors (licensing,
terms. Consistently under the legislation, use human rights abuses and environmental vetting and training requirements), outlets
and related harms have risen, drugs have destruction in sensitive ecosystems can be (location, outlet density, appearance), who
become cheaper and more available, and added to litany of prohibition’s disastrous has access (age controls, licensed buyers) and
illicit production has easily met the growing secondary consequences. where and when drugs can be consumed. It
demand. then rationally explores options for different
Much of this analysis will be of little surprise drugs and different using populations to
Worse still, this policy approach, (one that – there is a growing consensus that the ‘War suggest the regulatory models that will
we must remember is fantastically and on Drugs’ has been a counterproductive deliver the best outcomes on key health and
increasingly expensive), has delivered a series failure. In the UK we have seen a succession wellbeing indicators. Lessons are drawn
of catastrophic consequences associated of thoughtful and detailed analysis emerging from successes and failings with alcohol and
with the sprawling international illicit trade form high level policy forums highlighting tobacco regulation in the UK and beyond, as
controlled by violent criminal entrepreneurs, precisely this including: The Police well as controls over pharmaceutical drugs
now turning over in the region of $300 Foundation (2000), The Home Affairs Select and other risky products and activities that
billion each year, around five billion pounds a Committee (2002), The Prime Minister’s are regulated by government. Introducing the SpeechMike Air –
year in the UK alone. Strategy Unit Drugs Report (2003), The Royal
Society of Arts (2006), The UKDPC (2007). Moves toward legal regulation of drug markets the new wireless digital dictation device.
The criminal justice community, despite would naturally be phased in cautiously over
sitting centre stage amidst this unfolding A historical stumbling block in the debate has a number of years, with close evaluation and Efficiency is wireless. The brand new SpeechMike Air from Philips Speech Processing takes desktop
legal and policy disaster, has been been the fact that no clear vision of a post monitoring of impacts and any unintended dictation to a new level. Experience the world’s most popular dictation microphone now wireless. Enjoy
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if ever matched by any concerted efforts by met with a lack of clarity, with myths and across the spectrum of products, with the Digital dictation workflow solutions from Philips are engineered for simple integration with your PC network.
the many professional bodies in the field. misrepresentations filling the void. more restrictive controls deployed for more Find out how you can improve your business IQ by putting Philips solutions to work for your firm.
This silence is no longer a tenable position; it risky drugs or drug preparations, and, less
Transform Drug Policy Foundation argues restrictive controls for lower risk products. If
www.philips.com/dictation
gives tacit support for a demonstrably failing
policy and legal infrastructure. Prohibition is the choice is clear; drug markets can remain implemented intelligently such an approach dictation.systems@philips.com
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crime has placed an intolerable burden on no third option under which there are no encourage patterns of use to move towards

180x125-IQ-SMA-en-UK.indd 1 28.10.09 10:24


18 the barrister the barrister 19
Controlling the Beast: how to manage the media
in one case, assumptions were made by a result the super-injunction had the opposite a good understanding of how the courts and
PR team that a judgment had been handed of the desired effect - rather than suppressing cases work

around cases down in court and was ‘public’, because it


was scheduled to at a particular time, and
the story, it became headline news in a
mainstream media storm kicked off by the
• Hire in specialist PR help if you
realise you are having to deal with other
arrangements were made with a leading legal social networks. What can be done to avoid journalists covering the case
By Clare Rodway, Managing Director of specialist professional services consultancy Kysen PR weekly magazine for it to be posted on their such disasters? The best advice is to make • If you are not on the ‘right’ side of

L
website. That morning a severe traffic jam sure you are plugged in to these networks, the case in the journalist’s eyes, (ie David’s

itigation PR is the art of substantial?• Is the case symptomatic the case in the court. The best do all of this, delayed the start of the day’s proceedings, and that you encourage your clients to do rather than Goliath’s) then find creative ways

managing media coverage of a wider trend, eg sexism in the City? wrapping up their comments in dramatic which meant the judgment was not public so, before an issue arises: should you need to win busy journalists over by being the

around cases, either to • Is the claim particularly unusual or sound bites. Unforgettable of course in this when the magazine posted it online. This to push a counter-message out fast, you need most helpful party in the case to them

influence the outcome (eg shocking? category was Ian Hislop’s famous quip on the ended up in a high-profile contempt of court to have an established presence on these • Only ever release court documents

by encouraging early or • Does the case hinge on an steps of the court when he lost a defamation charge. networks and have a loyal following of people to journalists when you have actual

favourable settlement in the interesting legal point? suit against Sonia Sutcliffe. His quote of “If Rule 4 Be constantly on the look-out for who are used to listening to what you have to knowledge they have been handed down in

case of civil cases) or to manage the impact • Is the claimant/defendant well- this is justice, I’m a banana” understandably how the game is changing say. Moreover, be on the lookout for how new court and are ‘public’ – don’t assume.

of the litigation on the client’s ongoing known? grabbed all the headlines, despite the fact A new thread that needs to be factored in developments may be changing the picture

reputation. It is sometimes referred to as And which side of the case are you on? The he had lost in court. Public reaction was so to any good litigation PR strategy is social again. Clare Rodway is Managing Director of

a ‘dark art’, understandably putting many side of David? (the press will love you). Or strong, that Ms Sutcliffe volunteered to drop networking. The impact of social networking specialist professional services consultancy

legal practitioners off the concept. However, Goliath? (you are going to have to work hard a zero off the end of her payout. The perfect phenomenon twitter certainly took Trafigura A few tips to leave you with: Kysen PR - www.kysenpr.co.uk. The author

this description misrepresents what this to win them round). What do you do if you example of how winning your case in court and their legal team at Carter-Ruck by • Assume there is no such thing as recently addressed the London Solicitors

discipline is about: there is an entirely ethical are not on the obviously ‘right’ side of the is not the same as winning in the court of surprise: the nature of the twitter meant ‘off the record’ unless you have a track record Litigation Association on this topic, together

way to run litigation PR programmes, so story? The short answer to this is to add value pubic opinion. Another good example of a that news of Carter-Ruck’s super-injunction, of working successfully with a particular with Paul Cheston, Court Correspondent at

there is no need for clients to be deprived to the process for the journalist, if you can’t to loser in court winning in the headlines was attempting to gag reports of a parliamentary journalist and trusting them The Evening Standard, at an event hosted by

of the benefits that good media handling in the story. For example, a good way to curry Catherine Zeta-Jones in hers and Michael question relating to their client, reached mass • Work with established court Lovells

these situations can offer: the benefit of an favour with the press is to provide helpful Douglas’s case against Hello magazine. On audiences at the speed of light; the reaction reporters where you can, as these will have

additional tool in their litigation armoury; information and documents to journalists the steps of the court after losing one of the of the public was intense and volumous; as a high ethical/professional standards as well as

the benefit of protection to reputation; and in good time. What can you do to help various stages of the case, Ms Zeta-Jones
STEP081104 Advocacy ad 180x125.qxd 24/11/08 09:19 Page 1
the benefit of ensuring their side of the story untangle technical information? Another answered a question from a journalist saying
is clearly heard and understood by those idea is to offer to provide witness statements ‘It ain’t over’. Again, this was the story that
audiences most important to them. as your client is cross-examined, saving the dominated all the papers, rather than the
So not a dark art: more like PR in a strait- journalist the bother of attending court on victor’s at that stage. www.step.org/advocacy
jacket - the key difference with litigation that day. And of course any report based on
PR being that it operates in such a highly your client’s witness statement rather than Rule 2 No-one wants a Phyrrhic victory
regulated environment because of the various
court reporting restrictions and sub judice
their performance under the strain of cross-
examination is always going to help promote
Remember that legal and commercial
arguments must be tightly aligned at all times
STEP Membership for Barristers
rules and so forth. their side of the story over the opposition’s! and teams responsible for these different
If you are persuaded to engage with litigation And for lawyers speaking on behalf of their aspects should work closely together. I Why join STEP?
PR tactics, here are four Golden Rules to help clients on the steps of the court, do you know have seen an opposition legal team crumble Becoming a full member of STEP enables you to:
■ Use the designation TEP to showcase your specialist expertise
you on your way: what it takes to be a good spokesperson? A when a perfect legal argument which relied
in the field of trusts and estates
Rule 1 Understand the media’s point of study of any one week’s TV news items will on undermining the brand value of the ■ Increase your profile in the industry
view. If you are looking to use the media to show an array of the good, the bad - and the client company (to show a certain threshold ■ Network with industry peers, including fellow barristers,

present your client’s side of the story in the very worrying. It’s worth taking the time had not been met and thus a legal liability solicitors and accountants

best possible light, you need to be very sure to look and learn, to see what works and not triggered) clearly upset the board when Join STEP, the professional ■ Become more involved within the industry, with opportunities
to speak at conferences, join special interest groups and sit on
how the media will view the case and assess what clearly doesn’t. Evasive or aggressive printed in detail in the national broadsheets, body for the trust and estate industry related committees
■ Demonstrate a dedication and commitment to the field
the relative merits of the different sides of the behaviour never looks good on camera – and resulting in a call for settlement within
argument. Misjudge this and you may have a will never win friends amongst the printed hours of the paper hitting the streets. The profession worldwide. How to join STEP
high-profile PR disaster on your hands. press guys either. Hiding your client under way to avoid such a disaster is to ensure Any practising barrister or anyone with rights of audience in
Are you able to assess the newsworthiness of a jacket is also ill-advised. And of course you have factored in from the very start of relation to proceedings in the High Court can join STEP through
our Advocacy Route. Apply by submitting three opinions
your case? Can you separate out the headline running away from the cameras is never good your planning process all the legal/liability demonstrating your trust and estate experience.
issues? The press will make its assessment either (but you’d be surprised how often you and marketing/promotional issues that are
in regard to this on the basis of the following see this). Good spokespeople are clear, direct important to the client and their brand.
criteria: and confident in putting their side forward Rule 3 Get the detail right
• Is the case linked to a current hot and good at putting their point across in a This should be an easy one for lawyers! But
topic, eg City bonuses, corporate/investment way that engages with people. These are the you need to make sure your PRs understand For more information about STEP call +44 (0)20 7340 0500
or visit www.step.org/advocacy to download an application form
fraud or the banking crisis? ones who make the most positive impression the detail of the rules. I have seen horrible
• Is the sum of money involved on the public, regardless of the outcome of mistakes by the other side. For example
20 21
NEWS NEWS
ROUND ROUND
UP UP
the barrister the barrister

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
New professor
NEWS NEWS NEWSof NEWS lawNEWS launches NEWSfirst NEWSmajor NEWS NEWS studyNEWS on impact
NEWS NEWS of Asbos NEWSon NEWSyoung NEWS offenders
NEWS NEWS Senior
NEWS Government
NEWS NEWS NEWSLawyer NEWS NEWS Joins NEWS NEWS NEWS NEWS UniversityNEWS NEWS of Southampton
NEWS NEWS NEWS law NEWS NEWS
NEWS
The first major study into the impact of Asbos (Anti-Social Behaviour Orders) on young people is being conducted by KingstonNEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
University’s Exchange
NEWS NEWSChambers
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS professor NEWS NEWS calls NEWSfor more NEWSresearch
NEWS NEWS into NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSstudyNEWS NEWS NEWS NEWSover NEWSAsbosNEWS NEWSthat NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
newly appointed
NEWS NEWS
Professor
NEWS NEWS
of Law. Julia Fionda
NEWS NEWS
has completed
NEWSThe NEWS
a pilot which adds to the controversy by suggesting A senior Government lawyer is leaving the civil service after effectiveness ofNEWS
DNANEWS database
the orders can have a harmful effect on young offenders. studyNEWS NEWS
also raises NEWSabout
questions NEWS NEWS
whether NEWS
Asbos NEWS
may lead theirNEWS NEWS
recipients NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
fifteen years to pursue a career in private practice.
NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS UniversityNEWSof Southampton
NEWS NEWS Professor
NEWS in Health
NEWSCare NEWS Law, NEWS
deeper into criminality.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Alison Graham-Wells, NEWS
senior lawyerNEWS
in the NEWS
VAT and NEWS
Excise NEWS NEWS NEWS Jonathan Montgomery,
NEWS NEWS says NEWS there needs NEWS
NEWS to be more
NEWS research
NEWS
Professor Fionda, who undertook the pilot study with Dr Rachel Manning of the University of the West of England and Robert Jago of the carried NEWS
out and NEWS
evidenceNEWS
gathered into the contribution
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
LitigationNEWS
team atNEWS HMRC, NEWS is joiningNEWSExchange NEWS NEWS
Chambers in NEWS NEWS NEWS NEWS NEWS NEWSDNA NEWS
University of Surrey, said that Asbos could be counter-productive. “Since the year dot teenagers have hung around together on street corners
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
but what sort of adults are they going to turn into if Asbos restrict their physical movement in public places?” she asked. “It can impact on the
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Manchester. databases NEWSmakeNEWStowardsNEWS
fightingNEWS
crime. NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
growing up process and the way young adults learn social skills.”
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
He says, “DNA evidence is important in the investigation of crime,
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Called toNEWS
the BarNEWS in 1992, NEWS NEWS
Alison joined theNEWS
GovernmentNEWS Legal NEWS NEWS NEWS but it’s
NEWS
far
NEWS NEWS NEWS NEWS NEWS NEWS
from clear that a database plays an effective role.  We
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Service (GLS) NEWS
in July 1994NEWSand hasNEWS NEWS NEWS
had an interesting and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
know that matches have been made between crime scenes and
Professor Fionda and her colleagues interviewed young people and their parents, who they contacted through a youth offending team in the
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
successfulNEWS
careerNEWSwith HMCE NEWS and NEWS NEWS
its successor NEWS NEWS NEWS NEWS
HMRC. NEWS NEWS NEWS NEWS NEWS NEWS NEWS
people’s profiles on the national database, but we don’t know
south of England. Professor Fionda began her research in her previous role as a senior lecturer at the University of Southampton. She is set to
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
if this is helping police investigations.  We also don’t know if
expand her work in her new appointment at Kingston’s Faculty of Business and Law. At the age of 42, Professor Fionda is one of the youngest
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
law professors in the country.
NEWS NEWS
In her current NEWS
role, she isNEWSresponsibleNEWS NEWS on
for advising NEWScomplex NEWS NEWS NEWS the same
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
people would have been identified anyway, without a
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
litigationNEWS
concerning NEWS NEWS
indirect NEWSbrought
tax matters NEWSbefore NEWS theNEWS
First NEWS NEWS NEWS
database.”
NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSTribunal
and Upper-tier NEWS(Tax NEWS NEWSand
Chambers) NEWS
higherNEWS
courts. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
She wasNEWS
NEWS inspiredNEWSto specialise
NEWS in criminal
NEWS justiceNEWSbyNEWS ProfessorNEWSAndrew Rutherford,
NEWS NEWS a former
NEWSchairman
NEWS NEWS of the Howard
NEWS League
NEWS for NEWS
Penal Reform,
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Professor NEWS NEWS aNEWS
Montgomery, respectedNEWSexpert NEWS NEWS
on medical NEWS
ethics,
who advocates a minimalist approach to youth justice based on the premise that most young delinquents grow out of their criminal behaviour.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Prior to this, NEWS
Alison NEWStheNEWS
established MissingNEWS NEWS NEWS NEWS NEWS
trader intra- goes onNEWS NEWS
to call for NEWSinNEWS
a discussion ParliamentNEWS aboutNEWS NEWS
the purpose
Professor Fionda, who worked at Southampton University as a senior lecturer for ten years, said her research and writings, including her
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
community NEWS(MTIC) NEWS NEWS Team,
Civil Litigation NEWS NEWS 16
recruiting NEWSstaff inNEWS
the NEWS NEWS and limitsNEWSof theNEWS
database.NEWS NEWS NEWS NEWS NEWS
book ‘Devils and Angels: Youth, Policy and Crime’ (2005) had been influenced by his teachings. “The idea that young delinquents should
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
be supported rather than punished through the courts is not a very fashionable approach; this government is obsessed with maximum
NEWS
process. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
“There has not yet been a public debate to establish the correct
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
intervention. But it’s a theory that changed my life, it became the bedrock of my teaching in this area and it’s a message I intend to keep
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
balance between our private interest to privacy and our public
NEWS
plugging,”NEWS NEWS
Professor NEWS
Fionda said. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
CommentingNEWS NEWS
on the move,NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Alison said:
interest
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
in investigating crime,” he says.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
“This is aNEWS NEWS NEWS
great opportunity NEWS
to establish myNEWS
career in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
independent
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
practice.NEWS
I believeNEWSthat myNEWS skill setNEWS
and the NEWS
niche area NEWSin whichNEWS NEWS NEWS Professor NEWS NEWSisNEWS
Montgomery Chairman NEWSof theNEWS
Human NEWS
GeneticsNEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
I’ve developed NEWS
these skillsNEWS NEWS NEWS
will complement NEWSservice
the excellent NEWS NEWS NEWS CommissionNEWS andNEWS
made hisNEWS NEWS
comments NEWS
following theNEWS
releaseNEWS
Contact
NEWS NEWS Law NEWS launches
NEWS NEWS new NEWS service NEWS to NEWS
boostNEWS NEWS 18 StNEWS JohnNEWS Street NEWS Chambers
NEWS NEWS recognised
NEWS NEWS NEWS NEWS
that Exchange NEWS NEWS
Chambers delivers.NEWS NEWS NEWS NEWS NEWS NEWS NEWS
of a report by theNEWS
HGC intoNEWS NEWSDNA
the national NEWS NEWS
database, NEWS
which
Public
NEWS
  Access
NEWS NEWS to Barristers
NEWS NEWS NEWS NEWS NEWS NEWS in
NEWS national
NEWS legal
NEWS directory
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
holds around NEWS
five millionNEWS
profiles NEWS
of peopleNEWSarrestedNEWS NEWS
in the UK. 
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS is
“My background NEWS NEWS
best suited NEWS NEWS
to developing NEWS
a practice in NEWS NEWS NEWS Currently NEWS
everyoneNEWS NEWS
arrested NEWS
for an offenceNEWS NEWS
which could leadNEWS
to a
NEWS NEWS
Contact Law, theNEWS NEWS
UK’s leading NEWS
provider of NEWS NEWS toNEWS NEWS NEWS
client referrals NEWS NEWS NEWS NEWS NEWS NEWS NEWS
MEMBERS of 18 St John Street Chambers have been recognised
NEWS
commercialNEWS law, NEWS
an area in NEWS
which NEWS
Chambers NEWS NEWS NEWS NEWS NEWS
excels.” criminalNEWS NEWS
record has theirNEWS
DNA takenNEWS NEWS NEWS NEWS
and recorded.
NEWS
a network NEWS
of overNEWS500 UKNEWS law firms, NEWS NEWS NEWS
has launched a serviceNEWS NEWS NEWS
for their
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
contribution to the legal profession.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
He is also voicing concerns that the database has been
for Barristers’
NEWS NEWSChambers.
NEWS NEWS The new serviceNEWS
NEWS is designed
NEWS to help
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
She added:NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
barristers capitalise on the PublicNEWS
Access NEWS
Rules which allow transformed over the years from a database of offenders, to a
NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS
The annual NEWS&NEWS
Chambers Partners NEWS
rankingsNEWS NEWS NEWS
were launched in NEWS NEWS
“I have had a longNEWS NEWShistory
and pleasant NEWS NEWS NEWS
of instructing Exchange NEWS NEWS NEWS database
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
of suspects.
individuals
NEWS NEWS and organisations
NEWS NEWS to instruct
NEWSbarristers
NEWS NEWS directlyNEWS
rather NEWS NEWS 1989 asNEWSa way ofNEWS NEWS
identifying NEWS
leading NEWS NEWS
legal professionals NEWS
across the NEWS
Chambers NEWS NEWS
and I know thatNEWS NEWS NEWS
the progressive environmentNEWS whichNEWSthe NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
than through
NEWS NEWS a solicitor.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS UK in anNEWS NEWS
independent andNEWS
objectiveNEWS
manner.NEWS NEWS NEWS NEWS NEWSisNEWS
set has created NEWStoNEWS
ideally suited my way NEWS NEWS NEWS NEWS NEWS
of working.” NEWS
For further NEWScontact:
information NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
The service aims NEWS
to repeatNEWS the successNEWS of itsNEWS
offeringNEWS NEWS
for solicitors andNEWS NEWS NEWS18NEWS
Manchester’s St JohnNEWS NEWS NEWS
Street Chambers appearsNEWSfor its NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Peter Franklin, NEWS Officer,
Media Relations NEWSUniversity
NEWS NEWS of NEWS
NEWS
become theNEWS NEWS
largest single NEWS
source ofNEWS NEWSwork
public access NEWS NEWS NEWS NEWS
for barristers. personal NEWS NEWS
injury team NEWS NEWS
achievements NEWS
– citing it as a NEWS
‘leading NEWS NEWS
Said TomNEWS
Handley, NEWS
Director NEWS NEWSatNEWS
of Chambers Exchange NEWS NEWS NEWS NEWS
Chambers: NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Southampton
NEWS NEWS
Contact Law NEWS
is used by overNEWS NEWSlaw
500 hundred NEWS NEWS NEWS
firms including a NEWS NEWSprovincialNEWS NEWS
chambers’ andNEWS
praisingNEWS NEWS
its excellent NEWS
service whichNEWS NEWS NEWS
“This is an excitingNEWS NEWSfor
appointment NEWS NEWS NEWS NEWS NEWS NEWS
Chambers. Tel: 023NEWS
8059 5457,NEWS07748NEWS
321 087  NEWS NEWS NEWS NEWS
NEWS
number of NEWS NEWS
Legal 100 NEWSservice
firms. The NEWS NEWS
differs NEWS
practically to NEWS
the NEWS NEWSattractsNEWS NEWS NEWS NEWS NEWS NEWS NEWS
solicitors. NEWS NEWS
“Alison has won theNEWS respect NEWS of herNEWS
seniors NEWS
and peers, NEWS NEWS NEWS NEWS
both within NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Email: p.franklin@soton.ac.uk
NEWS NEWS
service for NEWS
solicitors, mainlyNEWS due toNEWS
regulatory NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
reasons. NEWS
the HMRC NEWS NEWS
and outside of NEWS
it, for herNEWS
expertiseNEWSin thisNEWS
area of NEWS
law NEWS NEWS NEWS
Sarah Watts 023NEWS NEWS
8059 3807, 07718NEWS
902 433NEWS NEWS NEWS
  The partnership law team is also NEWS
referenced as providing
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS of
and the conduct NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
her practice. NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Email: S.A.Watts@soton.ac.uk
‘authoritative and effective advice and advocacy’.
NEWS NEWS
Contact Law saysNEWS NEWSPublic
that although NEWS NEWS
Access NEWS
rights NEWS
took effect in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
2004 it still NEWS
represents NEWS
a tiny NEWS
fraction of allNEWS NEWS
barristers’ work.NEWS NEWS NEWS Head ofNEWSChambers,NEWS PeterNEWS
Birkett NEWS NEWS
QC, is ranked NEWS
Band 1 – theNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
 
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS highest NEWS
rating – NEWS NEWSexpertise.
for his criminal NEWS NEWS NEWS
His ability NEWS
to ‘handle LegalNEWS
NEWS and Campaigning
NEWS NEWS NEWS Organisations
NEWS NEWS NEWS call NEWS
for Justice
NEWS NEWS to beNEWS put Centre
NEWS NEWS Stage NEWSin General
NEWS NEWS
NEWS
According NEWS NEWS
to Contact Law,NEWSthe vastNEWS
majorityNEWS NEWS
of potential usersNEWSof NEWS NEWS NEWS NEWS
juries beautifully’ and hisNEWS
handling NEWS NEWS NEWS
of the multimillion pound NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
barristers’ NEWS
services remain NEWS unaware NEWS NEWS
that they NEWS
are able NEWS NEWS NEWS
to instruct NEWS NEWS
money laundering case RNEWS
v CairnsNEWS NEWS NEWS NEWS
are praised. Election
NEWS NEWS Campaign
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
a barrister NEWS
themselves onNEWS
most civil NEWS NEWS NEWS
and commercial matters,NEWSand NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Alastair Forrest, who specialises in clinical negligence, Simon NEWS NEWS
Manifesto for JusticeNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Published
NEWS
that doingNEWS
so canNEWS
often help NEWS them NEWS
obtain legalNEWS NEWS
advice NEWS
and help with NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Kilvington, who focuses on personal injury, and partnership NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS
litigationNEWS NEWS more NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS A broad and influential coalition
NEWSofNEWS eight leading legal and campaigning organisations has called on politicians to put justice centre stageNEWS
in
McEwanNEWS NEWS
rankedNEWS
Band 1.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
faster and cost-effectively.
  expert Malcolm were also
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS the forthcoming
NEWS NEWS General
NEWS ElectionNEWS campaign.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
Contact Law NEWS
currently NEWS
refers NEWS
qualified NEWS clients
prospective NEWStoNEWS a NEWS NEWS Mark Laprell
NEWS is listed
NEWS as NEWS
a Band 2NEWSpersonal injury barrister
NEWS NEWS NEWS and NEWS
PublishingNEWS NEWS
a Manifesto forNEWS
Justice,NEWS
the groupsNEWS NEWS
– which NEWS
represent NEWS NEWS
consumers, lawyersNEWS NEWS
and justice NEWS- have
campaigns NEWS NEWS
called NEWS
for three NEWS
principles
growing NEWS
NEWS network NEWSof over 500NEWS law firms
NEWS throughout
NEWS the NEWSUK across
NEWS NEWS NEWS Simon Csoka
NEWS is referenced
NEWS NEWS for hisNEWS
expertise and creativity
NEWS NEWS inNEWS NEWS
of justiceNEWS NEWS
to be upheld by NEWS
all thoseNEWSinvolvedNEWS NEWSdebate.
in the political NEWSThey NEWS are: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
all areasNEWS
NEWS of civil law.
NEWS Contact
NEWS Law NEWS
says thatNEWSaround NEWS
300 of the 6,000 NEWS NEWS
NEWS criminalNEWS
matters.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
• Good governance and the rule ofNEWS
law NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
requests for legal advice it receives each
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS month are suitable for NEWS
Commercial andNEWS
chancery NEWS NEWS
practitioner NEWS
Richard NEWSisNEWS
Chapman NEWS
• Respect NEWS
for humanNEWS rightsNEWS NEWS
and civil NEWS
liberties, and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
barristers
NEWS under NEWS
NEWS Public Access.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
  includedNEWS
for his NEWS
chanceryNEWS NEWS NEWS
and commercial dispute NEWS
resolution NEWS NEWS
• AccessNEWS
to justice NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS successNEWS
and his NEWS NEWS NEWS
‘highly analytical NEWS
and creative wayNEWS
of lookingNEWS
at NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
The initiative is being supported by the Conservative Shadow Justice Minister, Henry Bellingham MP, Lord Brennan QC, the Labour Chairman
Contact Law is also actively advertising for Public Access clients
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
on the Internet, and it is receiving enquiries specifically for Public
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
problems’. NEWS
of the AllNEWS NEWS
Party Group for NEWS
Legal and NEWS NEWS Affairs,
Constitutional NEWSand NEWS NEWS NEWS
Lord Thomas of GresfordNEWSQC, theNEWS
LiberalNEWS
DemocratNEWS NEWSJustice
Frontbench NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Access barristers from suitably well-informed prospective clients.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Peter Birkett QC said: “Keeping our clients’ needs at the forefront
NEWS NEWS
Spokesperson. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS
  NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
of our minds is priority to all at 18 St John Street and it is
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
The Manifesto is being published when the justice system is under intense pressure from the squeeze on government spending, public concern
NEWS NEWS NEWS NEWS NEWS NEWS
James Vintin, founder of Contact Law, comments: “By significantly
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
rewarding to have this recognised by the Chambers & Partners
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
over crime and problems in access to civil and family justice.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
increasing the number of referrals solicitors receive, our existing rankings.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
  NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS
service has directly contributed to an often considerable rise in fee
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSElection
With a General NEWSonly NEWS months NEWSaway,NEWS NEWS
the coalition hasNEWS NEWS
set out its NEWS
concerns about NEWS NEWS
the future of theNEWS
justice NEWS
system, NEWS
and callsNEWS NEWS
for a range of
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS “We have NEWS NEWS
a number NEWSacross
of entries, NEWS NEWS
various NEWS
practice NEWS
areas, measures
NEWS designed
NEWS NEWS to strengthen
NEWS NEWS justice andNEWS the rule
NEWSof law, including:
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
income amongst our network of law firms. 10 new law firms are showingNEWSwe are NEWS
a diverseNEWS
and trusted Chambers set.”
NEWS NEWS NEWS NEWS NEWS NEWS
joining us each month based on our proven track record and we now
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
more courage in NEWS
the debate NEWSover theNEWSneed toNEWS
reduceNEWS
relianceNEWS NEWS
on custodial NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
sentences
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
hope to mirror this success with our service for barristers.”
NEWS
The volume, NEWS and
complexity NEWS NEWSofNEWS
importance NEWS NEWS
work undertaken and NEWS NEWSand
less legislation NEWS more NEWS
practicalNEWSaction to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
tackle crime
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS positiveNEWS
comments NEWS NEWS
received fromNEWS NEWS
interviewees NEWS
– such NEWS
as clients NEWS
improvedNEWS
access NEWS
to justice, NEWS NEWS
especially NEWS
in family and NEWS NEWS
social welfare NEWS
law; and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
 “Barristers’ NEWSare
chambers NEWS NEWS
increasingly NEWSonNEWS
focusing ways toNEWS
further NEWS NEWS NEWS solicitors
and instructing NEWS NEWS NEWS NEWS
– are important NEWS
factors when NEWS
allocating NEWS
increased NEWS
effort toNEWS
conveyNEWS NEWS of
the importance NEWS
respectNEWS NEWS NEWS
for fundamental human NEWS
rights  NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWSdevelopment.
their business NEWS NEWS NEWS
This will be a NEWS
low cost NEWS NEWS
way for them to NEWS NEWS places inNEWS NEWS &
the Chambers NEWS
Partners NEWS NEWS NEWS NEWS
directory. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
demonstrate NEWS
their NEWS
ability to provide NEWS
specialistNEWS legal NEWS
knowledge NEWS and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
The coalition NEWS
is made up of NEWS
AdviceUK,NEWS NEWS
the Bar NEWS
Council, NEWS of
the Institute NEWS NEWS NEWS
Legal Executives, NEWS
JUSTICE, NEWS
the Law NEWS
Centres NEWSthe
Federation, NEWSLegalNEWS
Action
Visit www.18sjs.com for further details Group, the Legal NEWS
Aid Practitioners’ Group and Liberty.
NEWS
advice inNEWS NEWS
an efficient way NEWS
directly to NEWS NEWS NEWS NEWS NEWS NEWS
the public.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
 
22 the barrister the barrister 23
The Case for Improving your Website
it is perfectly feasible for a smaller set to Change demands digital excellence web design, development and online
outshine a larger one. Though the vast communications. Formed in 1999,
majority of clients still gain access through Recent sector developments further Intendance has evolved into four inter-
Prompted by several changes to the Bar, in addition to a universal increase in the use of the a solicitor, direct access to barristers is a key reinforce the argument for improving your related divisions: Research, Systems, Design
Internet, chambers have had to adapt their external communications to suit the new legal – part of the legal reforms. In pursuing better website. The front page of The Lawyer’s 9th and Online Marketing. For more information
and media – landscape. access to justice for consumers, regulators November issue carries an article on Outer on Intendance’s services, please visit
have established a pretext for better online Temple Chambers’ launch in New York, www.intendance.com.
By James Tuke, founding director and Head of Research, Intendance Ltd

F
communications. Whether the most affluent following a previous expansion to Abu Dhabi
or reputable chambers consider themselves in 2007. Whether expansion is regional or
actors such as the increase been significant progress since then. This - suggests that this is an immature sector
secure enough without the help of an international, a professional web presence is
in public direct access, year’s report – The Intendance Top 30 in terms of overall web development. The
improved online presence misses the point; imperative in order to support such growth.
the consequences of the Chambers’ Websites 2009 – shows that the equivalent difference figure for the top 50 law
while the ultimate aim of effective web Again, legal reforms and other developments
Legal Services Act, and whole sample can at least be found on the firms is much lower at 23%, showing a more
strategy is to enhance reputation, it is just as at the Bar – such as Civil Procedure Rules
changes in management web, and indeed, that the best chambers’ advanced general standard.
much about maintaining it. that promote alternative forms of dispute
structure are encouraging websites have started to give their law firm
resolution – have paved the way for a variety
chambers to review how they present cousins a run for their money. On a positive note, I think it’s only a matter
Learn from your audience’s behaviour of re-structuring possibilities, the most likely
themselves to the outside world. In short, of time until the poorest performers close the
of which is the consolidation of smaller
they have become more outward-looking and Two sets stood head and shoulders above gap on the top performers, and this report
Chambers are characterised by many chambers into partnerships with each other,
aware of the effects that changes will, and the rest of the sample – No5 Chambers highlights many areas in which they can
variables: their bank of legal knowledge, or with law firms.
are having on the services they provide. and Landmark Chambers. Both achieved a remedy the situation. The most obvious and
specialist practice areas, clerking skills, their
Furthermore, like all service sectors, the consistently high standard across all four pressing area is the poor standard of web
case record, and so on. These differentiating The same issue of The Lawyer highlights
ability of clients and consumers to make websites categories: Content, Usability, design. While I wouldn’t advocate wacky
aspects are many, but too often these another potential development that, if taken
informed choices has increased the need Design and Marketing. We always stress designs with flying wigs and gowns, a well-
advantages are not communicated effectively, up by the Bar, would necessitate better online
for all sets to market themselves and their the importance of paying equal attention conceived visual concept that chimes with
or they miss their target. I mentioned earlier features. The supply of information about,
expertise better. Online communications to all four categories because they are a set’s identity is worth the expense and
that information such as cases and articles and the actual process of, recruitment online
don’t just help this shift towards a more interconnected. Deficiency in one can spoil the the effort. Indeed, a fellow contributor to
which demonstrate knowledge and success has become increasingly important as the
modern Bar, they are a fundamental part of overall performance of a site. For example, these pages – Andrew Butler from Tanfield
are pointless if they can’t be found. In many web becomes the primary communication
this change. promoting specialist expertise through an Chambers – has written about managing
ways, search engines are the Internet; channel for younger audiences. Again, law
online library of thought leadership is highly his set’s website redesign. Having gone
without them we would be blind to what firms have led the way in this respect. News
Benchmarking the Bar beneficial for any set, but if it can’t be through the recommended process of site
is out there. Thus, chambers must keep in that Linklaters is considering scrapping its
easily found then it is next to useless. Thus, audit, ‘brand’ identification and subsequent
mind that websites are constant works-in- printed graduate recruitment brochure is
There is no doubt that the majority of navigation and page layout – elements of redesign and build, the result is a stylish,
progress that need nurturing. One way that an interesting move, and one that is in
chambers’ websites have improved markedly Usability and Design – must be organised modern and distinctive web presence that
helps keep a website in prime condition is keeping with burgeoning ‘green’ attitudes.
over the past few years. Yet how much have and designed in an appealing, user-friendly reflects Tanfield’s values. The key theme
using web analytics software to record how No profession can afford to ignore the ethics
they improved as a profession, how much way to ensure they can be found and digested that rang true from his article was the
visitors behave on your site. Google Analytics involved, and printed materials that can be
does the standard fluctuate, and how does as easily as possible. If this content can be benefit of hiring and allowing experienced
is a popular, free package that gives detailed covered online, such as those for recruitment
the profession compare to law firms, its more marketed effectively online, it can act as a professionals to advise and lead your web
data on user movements, such as pages or pupillage, are likely to be phased out. The
progressive cousin? Intendance is renowned magnet for a set, pulling in interested parties strategy. If anyone should understand the
viewed per visit, average visit duration, and more advanced your online communications
in the legal sector for the Fast Fifty, our law and making the website, and therefore the concept of the independent expert, surely it
homepage bounce rate (percentage of visitors are, the easier it will be to adapt to a digital
firm website benchmarking report. Earlier chambers, a favoured choice for matters is members of the Bar.
that leave the homepage without viewing future.
this year we adapted the scoring system relating to that type of work.
another page). This data gives you vital
specifically to suit the Bar, and ranked the top
Visual presentation enhances The web is a great leveller clues as to where your site might be failing, James Tuke is a founding director of
30 barristers’ chambers websites, as listed in
communication making improvements easier to plan and Intendance, and Head of Research. James
The Lawyer’s Bar Top 30 (by turnover) 2008.
Another positive point to emerge from the implement. Web analytics also establishes can be contacted on 020 7242 7160 or at
An interesting aspect to arise from the report report is the equality of the web. The report which keywords – for example, criminal/ james.tuke@intendance.com
We first assessed barristers’ websites back is the considerable gulf between the best and showed little correlation between chambers’ barristers/ London – visitors are using to
in 2004, when 5% of sets had no online worst sites, with the highest score being 71% size and online performance. Therefore, as find your site, which in turn can be applied Intendance is a London and Paris-based
presence whatsoever. Naturally, there has and the lowest 34%. This difference – 37% long as a reasonable budget is set aside, to your search engine optimisation strategy. company specialising in all aspects of
24 the barrister the barrister 25
Mental health and justice: making rights a reality
finding this information was passed to the witnesses with mental health issues’ and made where possible before the trial or in
defence. Disclosure of mental health history forthcoming guidance for prosecutors on use a closed session. Legal professionals should
in open court does not only have implications of psychiatric evidence. This high level work also make greater use of existing tools, such
in terms of potentially skewing the outcome is timely and welcome, but now we need to as Special Measures, to support victims and
By Paul Farmer, Chief Executive, Mind

T
of the trial – it is an unjustifiable breach see a culture change within the CPS on the witnesses to manage the court process and
of privacy and potentially harmful to the ground. give their best evidence.
he criminal justice system is The latter issue – misperceptions about the continues to hear shocking testimonies about
individual, their family and friends, given
currently failing victims and impact of mental distress on credibility and inappropriate and discriminatory use of
the extent of stigma towards mental health, It is not just incumbent on the CPS to take Above all, there needs to be an urgent change
witnesses with mental health reliability – is at the root of the discrimination psychiatric evidence to deny victims and
and the damaging effects this can have on this forward. All legal professionals have in attitudes among all justice professionals,
problems. Last year, the faced by victims and witnesses with mental witnesses access to justice.
people’s lives well beyond the courtroom. a responsibility to support victims and towards a system that treats someone with
influential House of Commons health problems. The High Court recognised
witnesses with mental health problems and a mental health problem as an equal citizen,
Justice Committee published this in 2009 in a ground-breaking case Misuse of psychiatric evidence
Recommendations for change to avoid – and actively challenge – misuse of with equal access to justice.
their report into the Crown Prosecution which found the CPS to be in breach of the In one case, an out of control motorcycle
psychiatric evidence. Mind would like to see
Service (CPS)1 and identified mental health Human Rights Act, because it discontinued mounted the kerb and ran into a woman
I regard access to justice as a basic human thorough training for police, lawyers and the Paul Farmer, Chief Executive, Mind
as a key area of weakness. They highlighted a prosecution on the basis of poor decisions walking along the pavement. The case of
right in our society. We all expect that if we judiciary on the interplay between mental
lack of support provided to victims and made about psychiatric evidence.3 dangerous driving was discontinued after
are the victim of a crime, we will be taken capacity, credibility, reliability and different 1 House of Commons Justice Committee
witnesses with mental health problems the pedestrian’s mental health history was
seriously by the criminal justice system and mental health conditions, and greater use of (2009) The Crown Prosecution Service:
during the court process and an “institutional The CPS in breach of the Human Rights Act brought into it in her disfavour. As she had
that we will be supported as a witness. It is pre-trial interviewing and witness profiling Gatekeeper of the Criminal Justice System.
reluctance around being prepared to believe attempted suicide in the past it was suggested
extraordinary – and entirely unacceptable – techniques to assess these issues before court Ninth Report of Session 2008-9. HC 186.
people with mental health problems as The ground-breaking hearing, known as FB that she may have put herself in the way of
that so many people find themselves excluded proceedings begin. London: The Stationary Office.
credible witnesses”, as I described it when v DPP, concerned a victim of serious physical danger intentionally, even though there was
from that system simply because they have a 2 Mind (2007) Another assault: Mind’s
I was called upon to give evidence to the assault (FB) who saw his case dropped no evidence of this. The case was dropped
history of a mental health problem. The Government and the CPS needs to campaign for equal access to justice for
Committee’s inquiry. In this article I outline because he had a diagnosis of schizophrenia, and the pedestrian received no compensation
consider introducing tighter rules on the people with mental health problems. London:
the considerable barriers to justice faced by despite identifying the assailants and having for her injuries.
Thankfully, the tide is now turning. The use of psychiatric evidence, in the same Mind.
people with mental health problems, and physical evidence of the extent of the crime.
Director of Public Prosecutions has way as restrictions have been placed on 3 R (FB) v Director of Public Prosecutions
what needs to change to ensure the justice The prosecution was discontinued on the Another case reported to Mind underlines
acknowledged the CPS’s failings and pledged evidence about sexual history and ‘bad (EHRC intervening) [2009] EWHC 106
system upholds everyone’s right to seek legal advice of counsel, in light of a brief medical both the lack of support provided to
to take action to remedy them. Mind has been character’ to discredit a witness. Where
redress for crimes committed against them. report which generalised about the likelihood victims and witnesses with mental health
pleased to be involved in the development of psychiatric evidence is disclosed, decisions
of such a mental health condition affecting problems in the courtroom and the use of
a new CPS policy on ‘Supporting victims and about its relevance to the case should be
FB’s perception or recollection of events. The psychiatric evidence to discredit a victim
Experiences of the criminal justice system
judge dismissed this reasoning as either a or witness. A woman with experience of
misreading of the psychiatrist’s report or “an anorexia and agoraphobia was assaulted
The Committee’s findings echo Mind’s own
unfounded stereotyping of FB as someone by her neighbour. The magistrate’s court
investigations into people’s experiences of
who was not to be regarded as credible on deemed the incident so serious that it issued
the justice system. Our ‘Another Assault’
any matter because of his history of mental a court order preventing the neighbour from
report, published in 2007, demonstrated
problems.” returning home. The case was sent to Crown
that people with mental health problems
Court, and the defence barrister asked a
experience shockingly high rates of crime
The conclusion of the judge is telling: series of questions pertaining to her mental
and victimisation in the community. Yet this
health and whether she had previously been
group is often reluctant to report crimes, or,
“The decision to terminate the prosecution detained under the Mental Health Act. The
when they do so, they receive a substandard
on the eve of the trial, on the ground that victim gave evidence for two hours in total,
service from criminal justice agencies,
it was not thought that FB could be put during that time experiencing a severe panic
including the police, the CPS and legal
before the jury as a credible witness, was attack. Following the hearing the defendant
professionals.2 Our research found 71 per
to add insult to injury. It was a humiliation was found not guilty, a judgement in stark
cent of respondents had been victimised in
for him and understandably caused him to contrast to the decision in the magistrate’s
the community at least once in the past two
feel like a second class citizen. Looking at court. The victim told Mind:
years. 30 per cent of those did not report
the proceedings as a whole, far from them
what had happened to anyone at all. Of
serving the State’s positive obligation to “If I’d had a broken leg or cancer this would
those who did report a crime, 64 per cent
provide protection against serious assaults not have been brought up to use against me
were dissatisfied with the response of the
through the criminal justice system, the as the victim in all this. […] At no point did
authorities.
nature and matter of their abandonment the barrister representing my daughter and
increased the victim’s sense of vulnerability myself, nor the judge, put a stop to these
The barriers to justice are threefold. First, and of being beyond the protection of the inappropriate and irrelevant questions.”
poor police relations deter victims from law.”
coming forward to report crime. Second, Mind has heard other reports of people’s
a lack of mental health awareness among If the experience of being a victim of crime case notes or psychiatric reports being
police and prosecutors prevents vulnerable was not distressing enough, FB then endured used as evidence – and often passed to
victims from being identified and supported. a traumatic encounter with a justice system the defence without question – where this
Lastly, people with mental distress are often which was effectively closed to him on information has no direct relevance to the
perceived as unreliable witnesses, so cases grounds of his mental health history. The case. Examples include a victim of assault
may be dropped before they reach court, or barriers to justice faced by FB in this case whose history of depression was passed to
witnesses face intrusive (and often irrelevant) are sadly all too common, as the judge the defence although this was not a factor
questioning about their mental health history acknowledged when he cited Mind’s Another in the case, and a victim of fraud who
which may affect the outcome of the trial. Assault report during the hearing. Mind had attempted suicide ten years previously
26 the barrister the barrister 27
Splitting the Legal Aid Fund
Spending on Crown and Higher Courts create a charitable foundation. This would Magee comes up with.

Cases mean government giving up a large degree

The bare figures do not indicate that the LSC of control, but the foundation could join-up
By Steve Hynes, Director, Legal Action Group.(LAG)

O
has been any more successful in controlling the statutory and other funding streams for Steve Hynes is the Director of the Legal Action

these costs than the previous administrative civil legal advice and public legal education. Group. He is the author with the journalist
nce again the legal aid. It is right that the state recognises the investigation of the case rather than in
arrangements (see table above). Cutting fees In such an integrated system a ring fenced Jon Robins of the recently published book on
government has that when a person’s freedom is at stake court based adversarial hearings. Apart from
has been the only game in town. In October civil legal aid fund could be focused on legal aid policy, “The Justice Gap- What ever
ordered a report on the access to independent legal advice is essential Sweden, there are lower crime rates in other
2005 the government negotiated a deal with specialist casework. It would have to happened to legal aid?” available in legal
legal aid system. The to ensure a fair trial. The problem is that due European countries, and far fewer people
the criminal bar to reduced hourly rates and continue to prioritise what it spends its cash bookshops or at www.lag.org.uk.
New Labour period in to the cap on the overall budget which was accused of a crime in all other countries are
expanded the use of the graduated fees in on. Protection of children as well as other
government kicked off introduced by the Access to Justice Act, the brought to trial compared to England and
Crown Court cases to save cash. According to vulnerable groups would have to be top
with Sir Peter Middleton’s report in 1997. demand led criminal legal aid budget is fed to Wales. Both significant factors also in driving
the LSC these measures had worked through of this list, as would the defence of civil 1 Legal Aid: Funding Reforms- MoJ
Most recently we had Carter and before the detriment of people’s civil legal rights by costs in England and Wales say Bowles and
by 2007/08. If the cuts proposed in the liberties. This leads me to a final important Consultation Paper pub 20th August
that the Fundamental Legal Aid Review. If raiding civil legal aid. Perry.
paper Legal Aid Funding Reforms1 are point.
they are defeated in the general election this
implemented these would further reduce
year, Labour will be bowing out with another LAG recognises value for money in the legal A separate CDS fund would be better
expenditure per case, but the proposals, At the heart of the legal aid system there is
report on legal aid this time by Sir Ian Magee. aid system is important, but it does seem to able to argue that the costs of providing
especially the one to reduce fees to the level a dichotomy. The state pays for legal aid to
us that the government and LSC have become its service need to be met by the treasury
of those paid by the CPS, have proved hugely ensure equality before the law. In criminal
Magee is examining whether to separate obsessed with the notion lawyers are making when legislative and procedural changes
controversial. law this means paying for the defence of
the Criminal Defence Service (CDS) and the too much from the system. They are fond lead to greater numbers of cases in the
people accused of a crime by another arm of
Community Legal Service (CLS). He is due of drawing comparisons with continental criminal justice system. The legal aid impact
Civil legal aid developed in a piecemeal the state and it is often the role of civil legal
report this month. Both LAG and the Access Europe to show that England and Wales test, which was supposed to address this
fashion primarily out of the demand for aid to help uphold peoples’ rights against
to Justice Alliance have campaigned for the spends more per head of population on legal issue, has proved woefully inadequate in
divorce driven by war and social change. emanations of the state. Put crudely the job
separation of the funds, provision for which aid than other European countries. doing so. According to LSC Chief Executive
Its major priority has now shifted to child of the legal aid system is largely to bite the
was included in the Access to Justice Act Carolyn Regan, speaking at the Legal Aid
protection cases. Over the years successive hand that feeds it.
(1999), but until now not implemented. LAG A report commissioned by the government, Practitioner’s Group Conference last year,
governments have altered what it will
believes if Magee recommends separation, it written by Roger Bowles and Amanda Perry only around £15m has been recovered since
pay for, mainly to trim the budget. Lord The potential bear trap for the Magee review
has to be more than just a paper accounting of York University, which was published in it was introduced. This is despite the 3000
Chancellor Derry Irvine introduced the last is that it undermines the purpose of legal
exercise as the temptation will always be October last year confirmed the headline new pieces of criminal legislation introduced
major changes in scope taking out personal aid by recommending separation of the
for governments strapped for cash to take figures for greater expenditure on legal aid under the current government.
injury and bringing in representation in funds at the cost of greater control of legal
money out of the CLS to pay for the CDS (though the Dutch do spend slightly more on
immigration cases. aid by the executive arm of government.
whatever the administrative arrangements criminal legal aid). Much of the growth in criminal legal aid has
Some independence in the administrative
for the respective funds. come from the increasing costs of the crown
In arguing for the separation of the funds LAG arrangements for legal aid is needed as
What the government are less keen to and higher courts cases. Any separation of
sees a major opportunity to plan civil legal without these immediate political priorities
Access to lawyers paid for by the highlight from the Bowles and Perry the legal aid budget will have to tackle the
advice spending. In contrast to criminal legal would be in danger of undermining access
state spread from murder trials to most research is that it argues the relatively high question how best to administer these cases.
aid, other government departments fund legal to justice. The trouble is any alternative that
criminal cases over the last century. Legal costs of legal aid seem to be offset by less Until April 2003 they were administered
advice to the public, as do local councils and could do this looks remarkably similar to what
aid became increasingly available in the expense in our courts system compared to separately by the courts system and so the
to a lesser extent, charitable sources. LAG we already have, that is an agency at arms
magistrates courts in the 1960’s and the the rest of Europe. Inquisitorial systems in most obvious answer for Magee to come up
believes everyone should be entitled to access length from government with independent
right to representation in the police station Europe have more of the costs loaded in with is to revert to this system.
to free basic legal advice regardless of means decision making powers on individual
was brought in by the Police and
00/01 01/02 02/03 03/04 04/05 05/06 06/07 07/08 and that public legal education should also cases and some degree of autonomy over
Criminal Evidence Act in 1984.
be provided as a public service. This should operational policy. It seems unlikely in these
As successive governments have
Number 116,000 115,000 123,700 124,000 115,600 121,500 120,700 123,519
of cases be the basis of any Community Legal Service cash strapped times the government would
increased the demands on the
Amount worthy of the name. A radical solution for the want to create two such agencies in order to
criminal justice system this has
spent 422 474 569.3 645 682.4 694.5 670.0 676
(£million) administration of such a service would be to separate out the funds, but we will see what
ratcheted up the cost of criminal
28 the barrister the barrister 29
first year land law students would have been incompatibility'. But courts have been slow desirable to formulate such a rubric, as Dr
Rights and remedies able to tell Hammersmith and Fulham LBC, to explain their reasoning behind choosing Aileen Kavanagh has argued, observing that

s.1(6) of the Law of Property Act 1925 states between the remedial and declaratory ‘such a test is impossible to devise, or, if
Thom Dyke looks at the scope of housing law rights and remedies. that a minor is not capable of holding a approaches. attempted, would be so abstract that it would

I
legal estate in land. Therefore by virtue merely provide some general guidelines or
n a previous article (see ‘A Home ‘quiet enjoyment’ during their tenancy. determining its character. On the basis that of Sch.1 para.1(1) of the Trusts of Land The leading case concerning the choice indications of the factors relevant to that
for Rights’, Michaelmas issue, This distinction is an important one, as by the defendant was working closely with the and Appointment of Trustees Act 1996, the between ss 3 and 4 is Ghaidan v Mendoza determination’. But this cautious attitude
October 2009) I addressed the virtue of s.6 Human Rights Act 1998, public local authority in providing social housing, written notice purporting to create a lease, in [2004] UKHL 30. The case dealt with an surely represents a poverty of aspiration –
issue of which human rights authorities will be amenable to challenge on and had received substantial public funding, fact ‘operate[d] as a declaration that the land application for succession to a statutory the Ghaidan decision falls significantly short
provisions are most commonly the grounds of violating Convention rights. Collins LJ held at para 102 that ‘the act is held in trust for the minor’. The difficulty tenancy under the Rent Act 1977 by of providing the certainty sought after by
engaged by housing law issues. of termination is inextricably linked to the arose when the local authority served notice the surviving partner in a homosexual practitioners and would benefit from more
The next logical step is to ask who will Whilst the law is relatively straightforward provision of social housing as part of the to quit on the appellant, who had been the relationship. This case concerned two systematic guidance. Until the appellate
be affected by these rights, before then when dealing with functions carried out by Trust's public function’. However, in his subject of a number of complaints from other questions. Firstly, whether Schedule 1 courts revisit this question, practitioners
considering what powers the courts have a public body such as a local authority, the judgment at para 84, Elias LJ sounded a residents. By the time the case reached paragraph 2 of the Rent Act 1977 violated should proceed on the basis that courts will
in respect of supplying an adequate remedy. position with RSLs is more complex. Whether note of caution, stating that, ‘it does not the Court of Appeal, the court held that the Art 14 when read in conjunction with Art try to use s.3 wherever possible instead of
an RSL is a public duty will depend on the necessarily follow…that every RSL providing local authority could not lawfully terminate 8. Secondly, if answered in the affirmative, s.4, with consideration made as to which
Whose right? nature of the RSL and the specific function social housing will necessarily be in the the lease, and thereby destroy the subject how should para 2 be interpreted in light of route produces the most equitable result.
being performed. This was confirmed in same position as the [defendant]…[and] the matter of the trust. By failing to adhere the HRA? Insofar as it is relevant, Para.2
Practitioners are faced with an increasingly Poplar Housing and Regeneration Community determination of the public status of a body to basic legal principles, Hammersmith provides that ‘the surviving spouse of the Conclusion
complex interrelationship between the Association v Donaghue [2001] EWCA Civ is fact sensitive’. and Fulham LBC created a tenancy which original tenant, if residing in the dwelling- Whilst the courts are still a long way from
various public and private parties which 595. Lord Woolf CJ observed at para 58 they were unable to terminate. Whilst this house immediately before the death of the providing absolute certainty when it comes
become entangled in housing law disputes. that when determining the question of public In November 2009, following the Court of situation is clearly of limited application, original tenant, shall after the death be the to determining rights arguments, the
Determining the status of the respective function, s.6 ‘should be given a generous Appeal’s decision in Weaver, the Supreme and will naturally expire once the tenant statutory tenant’. By a majority of four to recent decisions by the Court of Appeal in
parties will often have an impact upon interpretation’, which gave practitioners Court refused permission to appeal, on the attains majority, Alexander-David provides one, the House of Lords chose a remedial Weaver and House of Lords in Ghaidan have
the type of remedy sought, as well as the a wide scope for argument on this point. grounds that although “the point is clearly an object lesson for local authorities looking approach, deciding that it was possible to provided some clarification. Nonetheless, the
tactics pursued throughout the litigation Nonetheless, in YL v Birmingham City one for the Supreme Court...this is not a to properly discharge their obligations under read the definition of ‘spouse’ to include invitation given by the Supreme Court to find
process. For example, whereas private Council [2007] UKHL 27, the House of Lords suitable case on its facts”. The court added the statutory homelessness provisions. same-sex couples, allowing Mr Mendoza to a case more suitable for determination than
sector organisations are amenable to the held that Convention rights were not engaged that if a suitable case could be identified, then succeed his partner as a statutory tenant. Weaver, should keep practitioners guessing
Data Protection Act 1998, the public sector in respect of a private care home, even when consideration should be given to applying for Choosing your remedy wisely for a little while longer.
falls under the ambit of the Freedom of it was acting under the aegis of the National a leap-frog appeal. However, questions remain about the limits
Information Act 2000. This can provide Assistance Act 1948. The court distinguished The two main powers granted to the courts of the use of s.3 to ensure Convention The author is a pupil barrister at Hardwicke
important avenues for determining the YL on the grounds that it operated on a The importance of ascertaining the status of under the HRA are contained in ss 3 and 4. compliance. Lord Nicholls stressed this point, Building.
merits of a claim at the pre-action stage. private and commercial basis not found in the parties is not just limited to determining Section 3(1) requires the court to interpret noting at para 33 that any interpretation
Poplar. what type of function is being exercised by legislation 'so far as it is possible…in a way must be compatible with ‘the underlying
Landlords can range from private and the landlord, as the position of the tenant which is compatible with the Convention thrust’ of the legislation, and not require the
commercial landlords, to local authorities Further guidance was recently provided by may also be crucial. The recent decision rights'. If the statute in question is not courts to undertake ‘legislative deliberation’.
and Registered Social Landlords (RSLs). the decision of the Court of Appeal in R of the Court of Appeal in Alexander-David amenable to this interpretative exercise, and Lord Roger phrased his approach in similar
More confusingly for practitioners, the (on the application of Weaver) v London & v Hammersmith and Fulham LBC [2009] the court is satisfied that the provision is language, noting at para 110 that courts
distinction between public and private Quadrant Housing Trust [2009] EWCA Civ EWCA Civ 259 underlined the need for clarity incompatible with a Convention right, then it were not able to ‘change the substance of
can vary according to the function being 587. Conceding that the defendant RSL was when granting tenancies. The facts of the can consider invoking its power under s.4 to a provision entirely’. Much effort has gone
exercised. For instance, a public landlord a hybrid authority, the appeal focused on the case were that the respondent local authority, make a declaration of incompatibility. Before into reading the tea leaves of the Ghaidan
will be exercising a public function when question of whether the act of terminating acting in accordance with its duty under doing so, the court must be of the opinion, decision, but it is far from clear that any set
seeking a possession order, but a private the tenancy was a private act or not. The s.193(2) Housing Act 1996, had granted by virtue of s.4(4)(b), that '(disregarding test has been established to help the courts
law function when fulfilling obligations in court emphasised that it was crucial to take what purported to be a lease to the appellant, any possibility of revocation) the primary choose between declaratory and remedial
respect of repair or allowing the tenant the context of a decision into account when who was 16 at the time. However, as all legislation concerned prevents removal of the action. Indeed it may not be practical or
30
NEWS

for
ROUND
UP
the barrister

to help find cures for prostate and gynaecological cancers


A new dawn for legal training and education
Daniel Mohacek, Managing Director at CPDcast®, considers the state of the market and looks
at how the flexibility and cost-effectiveness of the internet is finally heralding a new era for legal
The Kerala
advenTure
training and education.

I
t might be over-simplifying things to in attending a conference. And, even though podcasts act as a handy “aide memoire”.

in india
say that learning and development giving lectures to solicitors is a good way
heads at chambers of all sizes are
cutting individual training budgets,
of getting CPD points, barristers now have
to pay the Bar Standards Board to accredit
Having a detailed understanding of the
very latest legal developments is, of course,
20 – 28
but there are signs that delivery their talks – an added burden on top of the absolutely vital in order to advise clients november
and management of CPD-accredited preparation required. properly. The extraordinarily specialised 2010
programmes is, at least, coming under nature of the UK legal services sector
increased scrutiny. Developing a sophisticated approach means that niche areas of the law often get
Learning providers everywhere have seen overlooked by the conference circuit or are
“Conferences are over” some significant changes in the way firms only covered at such a later date as to be no
Whilst this statement might be premature, it's pay for and consume CPD-accredited longer of any use. Here podcasts come into
clear that the conference sector is feeling the training. And on a individual level, people their own due to their production costs, speed
pinch during these financially-constrained are increasingly looking at alternative, of turnaround and, for users, portability.
times. The average cost of producing and internet-based ways of obtaining CPD.
marketing a seminar or training day remains Looking to the future
much the same as it's ever been. A reduction For barristers to keep up with changes in Much consideration is being given to the
in attendance numbers over last few years the law, the podcast format works extremely Legal Services Act 2007 which aims to put
means that the networking opportunities with well. Set against conferences whose format consumer interest at the heart of a new
solicitors (if indeed attendees believed they has remained largely the same from their regulatory framework for the industry. It
existed before) are markedly smaller than conception, barristers are now reaching will also enable legal services to be provided
before. Indeed the cost of multiple location for online tools as their learning media of under radically new business structures with
conference tours is further restricting the choice. Downloadable and portable, people solicitors and barristers working side-by-side
number of events outside the biggest cities. are turning to podcasts, in particular, as and doing away with the notion of LLPs. Some
Conference organisers, unable to make an up to the minute legal resource for their predict an increase in M&A activity as high
significant reductions in their overheads, commute home or even at the gym. By street partnerships face the prospect of, say,
have had to look for new ways to provide contrast conferences on certain areas of the supermarkets (which have already jumped
added value for attendees. law tend to be very sporadic and yet another with two feet into the financial services sector)
alternative – live webinars – force legal developing legal advice offerings. Others
The quality of conference speakers and topics professionals to be tied to their screens and point to a much-needed and more business-
remains as key as it ever was and should to watch at a certain time and that's before like manner of practice management with
continue to be something all CPD training you work your way through a minefield of increased competition and improved access
providers strive to maintain. Indeed the technologies that support the format. to justice all round as a result.
quality of CPD training in the legal sector has • Hike and camp in Two of Britain’s leading medical men are putting on their hiking boots again for
the 4th Hike for Hope challenge. Hikers have raised more than £1.2 million to stop
largely out-performed rival sectors for many Still, it's the quality contained within the Whether and how the new framework dramatic mountain
years now. But what conference producers podcast that remains key. Leading barristers works, the requirement for legal training and prostate and gynaecological cancers ruining lives by taking part in Hike for Hope
are failing to address is that many barristers understand the importance of podcasts as a education will remain as constant as ever. settings treks in Jordan, Kenya and the Sinai Desert in Egypt.
no longer have the time or inclination to self-promotion marketing tool. It's because And it's in this sector that plates are shifting
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32 the barrister the barrister 33
lawyer is sufficiently well-trained bono work and its ethical code - should be body against whom the remedy is sought. introduce them in a way which safeguards the In the view of the present writer, the Legal role of the Inns into even sharper relief. The

p.1 and motivated to provide the preserved in the public interest.’ independence, quality and ethical conduct of Services Act did not oblige the BSB to Bar Council, through the BSB, must as I have

required level of service. Nowhere Contrary however to some people’s the Bar while also serving the best interest decide as it has done, and its decisions raise said provide a sensible and cost-effective

is this more true than in the case The BSB might have added the importance expectations, the BSB has now on 19th of consumers. We trust that these changes question-marks as to the future survival of regulatory regime, but it is the Inns which

of advocacy and advisory services, in the of these qualities being available to solicitors November 2009 reached the following are creative, flexible, permissive in the most the Bar as a separate branch of the legal must provide the training, the motivation,

context of contested litigation, which is the up and down the country, especially those decisions among others: positive sense, measured, in that they do profession. Much will depend upon whether the inspiration and the example of excellence

barrister’s sphere of expertise. Bearing firms – some 80 per cent of the total – with not represent a ‘free for all’, but amount to the BSB can compete effectively with other upon which the Bar’s success has always

in mind therefore the practical limits of five partners or less. - Barristers should be permitted to a ‘shot of adrenalin’ for those elements of regulators in offering a sensible and cost- been based. It is with the Inns, and through

regulation, the Clementi review accepted that become managers of LDPs, regulated by the the Bar that have been struggling in recent effective regime under which those lawyers them with the Bar itself, that the future of

it would be inappropriate to insist upon a Given that the Act expressly preserves SRA without having to requalify as solicitors. times, and, most importantly therefore, of can practise who seek to offer advocacy and this historic profession now lies.

single monolithic heavy-handed regulatory the Bar’s right to retain its own separate - Barristers should be permitted in benefit to the users of barristers’ services related advisory services. On an optimistic

system for the legal profession as a whole. regulatory regime, it might also have been principle to form barrister-only partnerships, and for the legal services market as a whole.’ view, advocates will come to see the Bar’s Stephen Hockman QC, Head of

Clementi accepted, and the Legal Services Act expected that the BSB would support the pending the creation of an appropriate regime as the regime of choice for those who Six Pump Court Chambers

2007 therefore embraces, the pre-existing Bar’s rejection of partnership as a regulatory regulator for such entities, currently not in These decisions by the BSB raise the following wish to practise advocacy, and the Bar as a

system under which lawyers of different model, and likewise would steer clear of existence, and consultation by the BSB in as yet unanswered questions: profession will continue to increase in size as

kinds are regulated by their own professional new entities such as the so-called Legal relation to becoming such a regulator. it has done in the past. I suggest however

body subject to overarching supervision by Disciplinary Practice involving both barristers - Barristers should be permitted 1. Will the Bar Council agree to that only in this way can the future of the

the new Legal Services Board. The only and solicitors. Of course, partnership would in principle to practice through other amend its constitution so that it can become Bar be guaranteed. Those who take the view

pre-requisite is that the professional body in in many ways be a natural model for the barrister-only companies and limited liability an entity regulator and if so, which entities that it would be good for the Bar to decline

question must ensure that its regulatory role provision of legal services, as is shown partnerships (LLPs). However, further work will it decide to regulate? in numbers and to become an ever-more

is handled separately from its representative by the fact that solicitors, who make up is required to determine if the BSB should 2. Will barristers in chambers specialist meritocracy are, in my view, living

functions. Thus the Bar set up, as from the some 90% of all legal services providers, do regulate these entities. generally decide to emulate solicitors in in cloud-cuckoo land. Unless barristers make

1st January 2006 (when I began my year generally practise in partnership. Through - The cab-rank rule will apply to adopting partnership as the predominant themselves available in sufficient numbers to

as Chairman of the Bar) the Bar Standards a partnership the senior members are able barrister only partnerships, as well as the practice model? If so, what effect will that solicitors up and down the country to provide

Board now chaired by Baroness Ruth Deech to earn profits on the basis of the activity of self-employed Bar. The BSB considers that have upon the ethos of personal responsibility the kind of service upon which solicitors wish

(matched by the Solicitors’ Regulatory others. By contrast, a barrister must accept all advocates should be subject to the cab- hitherto integral to professional practice at to rely, then the Bar will have largely outlived

Authority set up by the Law Society). personal responsibility for his own work rank rule and will be raising this issue with the Bar. its usefulness and will gradually (or even

under paragraph 306 of the Code of Conduct. other regulators. 3. How many barristers will choose to perhaps rather rapidly) wither away.

In a Press Release issued on 13th November He cannot supply legal services by offering practise in an LDP rather than in chambers

2009 the BSB announced that it was to take a work carried out by others. Moreover, so - The Board should consult on or in a barrister-only partnership and, if they However as they face the future, barristers

series of important decisions about the future far as the self-employed Bar is concerned, whether or not it should become an entity decide to do so in significant numbers, what can take comfort from one priceless

regulatory framework for the Bar. The Press barristers are bound by the cab rank rule, regulator of the new legal entities, and, as effect will this have upon the viability of the advantage. That advantage is inherent in

Release stated in part as follows: one of whose beneficial and civilising effects part of this consultation, look at whether a Bar Council in its regulatory role. their identity as barristers - an identity

is that many barristers in the course of their modified cab-rank rule can be applied to recognised explicitly in the Legal Services Act

‘The BSB acknowledges that the Bar has professional practice act for clients on “both barristers practising as managers of LDPs Surprisingly the papers upon which the in which a barrister is defined as someone
BSB based its recent decisions contain no
served England and Wales well for centuries. sides of the argument”, in other words for the undertaking advocacy work. who has been called to the Bar by an Inn of
answers to these questions. Indeed, the
Its unique attributes are recognised at home prosecution as well as the defence, for wives Court. Barristers have been questioning the
papers proceed on the basis that it was
and abroad. The BSB is therefore determined as well as husbands, for tenants as well as In its accompanying Press Release, the raison d’être of the Inns of Court ever since I
unnecessary to know the answers to these
that, in making any liberalising changes, the landlords, for claimants as well as insurers, BSB reiterated that ‘….having made these questions before deciding how, in the public myself was called to the Bar. The answer to

defining and positive attributes of the Bar and for those wishing to obtain a remedy decisions affecting the nature of the supply interest, the issues raised for decision should the question has always been clear, but the

– its independence, its excellence, its pro from a public body as well as for the public of legal services, it is now our intention to be resolved. result of the BSB’s decisions is to throw the
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Patron: H.R.H. The Prince of Wales

The Impact of the Credit Crunch on the


Assessment of Personal Injury Damages
By John Frenkel FCA MAE

T
You may not know it, but there are two parts to Greenpeace in the UK. So, if one of
your clients wants to remember Greenpeace in their will, they need to indicate which
part they want to benefit.
he last time that the precise way of calculating multipliers and as forensic accountants get instructed on a
…a helping hand
Both Greenpeace Environmental Trust and Greenpeace Ltd depend entirely on
world suffered from the lowering of the current discount rate to case, we have only recently started to see for actors since
1882… donations from individuals.
an economic downturn 2.5%. claims where the immediate timing of the
Greenpeace Environment Trust carries out scientific research and
comparable to the accident and the credit crunch are starting education, and investigates critical environmental issues to help stop
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the business world of today that would have our present economic plight. Thus, just is that Claimants still have not really come hardship because of illness, accident or old age. sure national and international decision-makers get the message. A legacy to
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scaled the dizzy heights of an unprecedented so the personal injury litigant will have to initial schedules of loss that are prepared President
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award that are commonplace, such as the date of an accident and the time that we future losses. However, this clearly is not

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38
NEWS
ROUND
UP

the way to assess damages in the present more carefully than usual. There are some (ie where the employer pays a percentage
climate. I consider the different type of success stories but they are few and far of the employee’s salary to build up a cash
Claimant whose damages are to be assessed. between, especially when compared to pension fund for retirement), is declining.
the numbers setting out. Never mind that This means that the quantum of pension
Self-Employed – it is quite possible that by markets are shrinking and there are more losses suffered by Claimants is likely to be
now you will be starting to see accounts for people chasing less business, the reduction reducing. A recent survey (January 2009)
the self-employed that will straddle the start in the availability of working capital from by the National Association of Pension Funds
of the credit crunch. Sales and profits may the banks is a major setback for fledgling concluded that even those companies that
well have reduced from previous years and businesses. There are funds to be had and were currently offering defined benefits’
the art will be to determine what proportion the more robust the pre-accident plans the pension schemes might well have to stop
of such fall would have occurred anyway better the chance the Claimant will have of within the next few years as the burgeoning
and what proportion is accident attributable. persuading the Defendant and the judge of cost of these schemes escalate. The fall in
Many industries will have statistics on the merits of his case. Therefore, now more investment values and returns on capital
market performance, which may even be than ever, it is essential that well-constructed generally, combined with the longer life
geographical based, and these will help to and well-documented, balanced claims are expectancies that we are currently enjoying,
show what might have occurred but for the submitted on behalf of Claimants. mean that these pensions are increasingly
accident. Alternative approaches will involve becoming prohibitively expensive. The only
the detailed review and analysis of sales by Employed Claimant – the employed Claimant consolation for Claimants in this regards is
customer by week and month both pre-and would have been at risk of losing his job that the older state retirement dates that are
post-accident to identify where the changes anyway. Of course this does not totally negate being phased in (see www.thepensionservice.
are and then apportion such variations a claim, even if his employer were to have gov.uk.co.uk), means that the multipliers
between the accident and the credit crunch. gone out of business. This is because what for their loss of earnings is increasing even
the Claimant has lost is his earning capacity. though the multipliers for their loss of
It should be borne in mind that in So even though there may have been some final salary pension schemes benefits are
determining the multiplicand for any future gaps in employment but for the accident decreasing!
loss, it may well be that the latest figures because of the failure of the employer, the
from the “projected” accounts for 2009 Claimant will still have suffered from a loss As ever it is all about the good news and
might not be the maintainable profits that of earnings. There are some industries that the bad news. Clearly the bad news is that
are to be used. Thus the Claimant who will have clearly suffered but many employers will Claimants will have to make allowance for
never work again would not be best served have offered creative deals to the workforce. the downward impact of the credit crunch on
by having his future losses based on 2009 For example, I recently had a case involving the assessment of their damages. The good
figures. For long periods of future loss it is a car-worker and at his workplace there news is that the schedules of loss cannot be
often appropriate for the expert to consider a had been a promise, for a defined period, properly put together without the input of
range of multiplicands to reflect the changing of no further redundancies in return for no us professionals and we will need to think
economic climate over time and leave it to the inflationary increases in wages. All these carefully of all the wider implications of the
legal team and the judge to decide how long types of deals impact on the assessment of troubled times in which we currently live.
the various economic periods are likely to damages and should be considered when
last. The Claimant who can continue to work preparing the schedule of loss. John Frenkel
post-accident and thus only has a partial loss John is the senior partner of Frenkels
of future earnings will equally require his Of particular interest as well is the entitlement Forensics Chartered Accountants, a London
mitigating earnings to be considered over to pensions that employed Claimants might based forensic practice, who this year are
time, and again for a range of multiplicands have enjoyed. The number of employers, celebrating their 30th anniversary. For more
to be applied to these projected actual future including the state, who offer defined information please visit www.frenkels.com.
earnings. benefits/final salary pension schemes, (ie
where the pension is assessed with reference
The self-employed Claimant who was just to final salary and the number of years
about to go into business when the accident worked), which are almost invariably more
occurred will have to be considered even valuable than defined contributions schemes
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