barrister magazine issue 39
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8/9/2019 Barrister Magazine issue 39
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the barristerISSN 1468-926X
price
3.0012th January 2009 - 19th March 2009
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#39
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The Constitution Committee
The House of Lords Select Committee on the Constitution
which I chair, was formed in 2001 in response to
a recommendation by the Royal Commission on the
Reform of the House of Lords. It is unusual among
committees in that it performs a dual role: scrutinising
legislation and conducting longer policy inquiries into
matters of constitutional importance.
Relations between the executive, the judiciary and
Parliament1
In July 2007 the
Committee published
its report on Relations
between the executive,
the judiciary and
Parliament which
analysed the evolving
c o n s t i t u t i o n a l
relationships between
the three arms of
the state and made a p.32
Nws
It is important that government and
ministers understand and respect the vital
independence of our judiciary
HiLArY TerM iSSUe
eSSeNTiAL reADiNG FOr BArriSTerS
www.bastmagazn.com
LORD GOODLADChairman of the House
of Lords ConstitutionCommittee
Bespoke tax advice for barristers
Chancery Lane, Londonwww.haysmacintyre.com
.21
Stuy into local lgal avicannounc
Est . 1999
The Wood Review:Tough Love for the BVC
The Panel established by the BSB to review the
BVC and chaired by Derek Wood QC published
its report in July 2008, and all stakeholders
regulators providers, practitioners, prospective
students and those advising them are now
getting to grips with its recommendations.
These were comprehensive, in some cases
radical, and certainly reflected the range and
apparent seriousness of allegations to which the
review had been addressed. As listed in Chapter
5, they read rather like a bill of indictment: the
recruitment of too many students (numbers had
grown by 30% between 2003/4 and 2007/8);
for too few pupillages (a 5% reduction over the
same period); students who were unaware of
the risks they were running when they signed
up for an extremely expensive course; content
that was insufficiently challenging, realistic and
specialised to meet the needs of modern practice;
teaching standards that were too low; and a pass
level which was lower than any professionally
recognisable threshold of competence, even for
pupillage.
For providers this must have been depressing.
It might also have been somewhat perplexing,
because over the last ten years the BVC has been
subject to almost constant external scrutiny.
Its current content was prescribed in some
detail, via the so-called Golden Book,
by the Elias Working Party as recently as
2000. Since then, major aspects of the
12
16
p.10
Consultations on aymnt of CrownCourt fnc costs
Fears over the Future oF the
court service and concern
over justice budget cuts
Th rorts in Octobr 2008 of cutbacks
at th Ministry of Justic ar th latst
masurs takn by th Govrnmnt to
ruc th xnitur on th justic
systm as a whol. Ths ar not th
first bugt cuts which ar likly to havan imact on th workings of th justic
systm in englan an Wals.
By paul Marsh, prsint, Law Socity
of englan & Wals
LegaL gLobaLization: an
expanding picture
Whil th ictur might b xaning, is
a uniformity of lgal ractics sraing,
thrby contracting th ivrsity of
law worlwi? Builing on th last
issu of Th Barristr, w continu our
invstigation into lgal globalization an
consir in articular th ffct iffrnt
jurisictions ar having on ach othr.
By Alistair King of Justis publishing
enhancing the participation oF
chiLdren in FamiLy proceedings
Th issu of whthr or not chilrn
shoul hav th oortunity to lay
a gratr art in rocings whr
cisions will b ma which will affct
th rst of thir livs is bcoming th
subjct of incrasing bat.
By Nicholas Crichton, district Jug,
sitting at th Innr Lonon Family
procings Court
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Fears over the future of the court service andconcern over justice budget cuts
By Paul Marsh, President, Law Society of England & Wales
The reports in October 2008
of cutbacks at the Ministry
of Justice are the latest
measures taken by the
Government to reduce the
expenditure on the justice
system as a whole.
These are not the first budget cuts which arelikely to have an impact on the workings of
the justice system in England and Wales.
The courts and legal aid system have been
at crisis point for some time, so there is no
scope for further cuts without cutting into
vital public services.
The Court Service itself has suffered from
years of underinvestment, and we badly need
sustained investment in court staff and their
supporting infrastructure. Job cuts and the
abandonment of longer-term programmes
to modernise court infrastructure are not
the right way forward for court users or the
wider public interest. A modern, efficient
court system is essential to the well being of
the economy as a whole.
Legal Aid
There are ongoing concerns about the
possible impact on the legal aid budget of
the budgetary pressures that have been
revealed. We already know that the Carter
reforms have led to the Government making
significant savings as against the previous
trend lines for legal aid expenditure, and we
have received repeated assurances that the
Ministry believes that legal aid expenditure is
now sufficiently under control that no further
cuts or restructuring will be required beyond
those proposals already signposted, such as
for Crown Court means testing, private law
family litigation and family advocacy.
Moreover, in the light of the Ministrys
willingness to reach a deal with QCs that
increases the payments to the highest paid
barristers in the system albeit on the basis
of arrangements that should be cost neutral
it would be politically very difficult for the
Ministry now to make cuts elsewhere that
impact on solicitors or clients. In the light
of the unequivocal assurance from Justice
Secretary, Jack Straw, that this settlement
was affordable, any cuts to the system that
impacted upon the solicitors professionwould be viewed as a significant breach of
faith by the Ministry.
The cuts in staff at the Legal Services
Commission (LSC) do give some cause for
concern to barristers as well as solicitors.
Practitioners frequently complain about delay
in their dealings with the Commission, and it
would be very damaging if the effect of these
cuts was to increase delays.
The delays in responding to case plans in very
high cost family cases are exorbitant. During
the credit crunch, it is more vital than ever
that bills are processed and paid promptly.
It would not be acceptable if these matters
were addressed at the cost of introducing
new delays in parts of the system that are
currently reasonably efficient.
Having said that, this could represent an
opportunity for the profession. The LSC
needs to recognise the limits on what it can
reasonably achieve, and to tailor its activity
accordingly. This may require a reduction
in the information it demands from firms,
to reflect what it genuinely has the scope
to process. There is no point in demanding
huge amounts of information that are never
processed and dont add value to the planning
and/or accountability of the system.
It may involve radical downsizing of its
audit policy. In theory, since a peer review
result lasts three years, every firm should
be reviewed no less often than once during
the life of each contract. In practice, the
LSC is able to achieve only a fraction of this
target. The system needs to be designed
in accordance with what the LSC can
realistically do in practice, not what it would
like to do in an ideal world. This applies with
equal force to the design of the scheme for
quality assurance for advocates.
It will hopefully involve the devolution of
much greater powers to the lawyers and
advisors to take the steps professionallynecessary on a case. At present, firms have
to undergo a degree of micromanagement on
individual cases that would be hard to defend
even if the LSC did have the resources to do
it effectively.
In terms of proportionality of cost to result,
and in terms of the delay caused in delivering
the service to clients, this level of involvement
in individual cases must end. The LSCs job is
to manage the system, not to manage every
case within it.
Even totemic projects such as CLACs and
CLANs and Best Value Tendering need to be
carefully considered. They require huge costs
in order to deliver rather speculative benefits.
With the current budgetary pressures, are
these really more important than maintaining
the current day to day service to clients?
I have been extolling to the profession the
concept of the Business of Law a central
theme of my presidency - encouraging law
firms to run efficiently and follow sound
business principles. Many have risen to
that challenge. Perhaps the LSC needs very
speedily to adopt the same principles.
Technology
More than 10 years after Lord Woolf, in his
report on access to civil justice, expressed
his 'conviction that sensible investment in
appropriate technology is fundamental to the
future of our civil justice system' the possible
abandonment of the Court Service's flagship
proposals to introduce electronic filing and
document management (EFDM) systems to
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the civil and family courts is depressing. It is
also short-sighted.
The pace of technological change is
accelerating and Lord Woolf's expectations
for technology in the courts now seem as
retrospectively modest as they are unfulfilled.
It is easy to forget, to take just one example,
that back in 1996 a good Pentium PC with an
800 Mb disc and running Windows 95 would
have cost a law firm around 2,200! The
world has changed. The courts have barely
changed. In essence they are still hugely
paper-based and relatively inefficient.
If the government is not prepared to make
significant investment in the technological
infrastructure and back-office processes
of the courts now, the position can only get
worse.
In the first place, a cutback in such essential
infrastructure appears inconsistent with
a proclaimed policy of fiscal stimulus to
ameliorate recession. Secondly, the court
system will suffer further relative decline
both in relation to alternative jurisdictions
and in relation to our rising expectations. The
government knows this.
Civil Justice 2000 was subtitled 'A vision of
the Civil Justice System in the Information
Age'. It argued that 'for too long Government
departments have lagged behind the private
sector in the innovative and effective use of
new technology'. It identified the impact of
the internet on business and suggested that it
was necessary to 'look ahead in order to plan
and develop the future share of the justice
system in the information age'. I agree. At a
time when solicitors are embracing a range of
new technologies to compete as effective and
efficient businesses in the delivery of services
to their clients we need the government to
match its earlier vision and rhetoric with
action. Now is not the time to cut much
needed investment in the courts.
Virtual Courts
Virtual courts, one initiative where the courts
have looked to implement new technology,
unfortunately risks lowering the quality of
ustice in our courts.
We are extremely concerned about the
potential for waste in the virtual courts pilot,
a project led by the Office for Criminal Justice
Reform (OCJR).
Planned for implementation in early 2009, it
will require the kitting-out of 16 custody suites
in London and Kent with video conferencing
equipment to enable defendants to 'appear'
at their first hearing in court.
There are enormous practical difficulties
and additional costs that this new way of
conducting court hearings, which will be
extended to include out-of-hours work, will
cause defence lawyers, which have only just
adjusted to the post-Carter world of fixed fee
cases to be dealt with in the one court centre,
with no additional travel and waiting.
The Law Society also has concerns about the
quality of the justice that will be delivered
remotely, and we very much doubt that the
supposed benefits - said to be savings arising
from fewer defendants failing to appear and
reduced police transport costs - will make the
very conservative estimate of 8.7 million,
as set out in the OCJR's business case,
worthwhile.
While it is acknowledged that video
technology is used to good effect in dealing
with administrative and appeal hearings,
here we are concerned with a person's
first appearance after arrest, when issues
such as release on bail are considered, and,
increasingly, pleas are required to be entered,
often when the person is not in possession of
proper disclosure and may not have received
any, or sufficient, legal advice.
We would politely suggest that before spending
large amounts of money on this costly
experiment, the fate of the 2002 Extended
Court Sitting Hours Pilot, otherwise known
as Night Courts, should be considered, and
the virtual courts pilot dropped, or, possibly,
confined to rural areas where there may well
be advantages to all involved in the criminal
justice system, not least the defendant.
Conclusion
The Law Society, and I am sure many other
representative bodies in the legal profession,
are ready to engage in constructive dialogue
with the Ministry on the on-going budget cuts
and state of our justice system. I made this
clear in my letter to the Justice Secretary
when news of the latest cut backs emerged.
The government must draw on the expertise
of the profession and others with day-to-day
knowledge of the working of the courts. We
must all be united in defending the justice
system.
Paul Marsh, President, Law Society of
England & Wales
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Moves in mediation: confidentiality, the EUDirective and regulation
By Tony Allen, Solicitor, Mediator and Director of CEDR and Professor Karl Mackie, Barrister,
Mediator and Chief Executive of CEDR
C
onfidentiality is at the
heart of the mediation
process. Because parties
feel safe from commercial
exposure or assumptions
of weakness drawn fromsignals of readiness to compromise, they
attend mediations, parties talk directly to
each other in a way that litigation makes
virtually impossible, they disclose secret
positions to the mediator, they indicate
willingness to move from strongly expressed
litigation positions, they make offers to
each other and discuss alternative ways of
mending business relationships. Insurers
and defendants apologise and empathise
with injured claimants and often move huge
distances from their on-the-record positions
to achieve risk-moderated solutions. None
of this would happen if the parties did not
feel safe in doing so. There is no doubt that
this is a process which works and delivers
results.
But we need to be clear both about the
present situation in law and whether it needs
amendment. The imperative to do so lies
in the requirement of the EC Directive on
mediation that the UK legislates by 2011
to implement the relatively minimum
standards it sets for cross-border mediation.
With huge pressure on the legislative
timetable, mediation is unlikely to get much
Parliamentary time, especially if the topic
is limited to the minority activity of cross-
border mediation. The changes we make
to meet the Directives requirements almost
certainly will be applicable to mediation
generally.
While we may already just about meet
the Directives requirements on quality,
education, and enforceability of mediated
outcomes, and while we may feel resistant
to suspending limitation periods during
mediation (mainly because we fear satellitelitigation about when a mediation starts and
ends), we cannot escape consideration of the
reform of mediation confidentiality. Article 7
(headed Confidentiality of mediation) reads:
1. Given that mediation is intended to
take place in a manner which respects
confidentiality, Member States shall ensure
that, unless the parties agree otherwise,
neither mediators nor those involved in the
administration of the mediation process
shall be compelled to give evidence in civil
and commercial judicial proceedings or
arbitration regarding information arising out
of or in connection with a mediation process,
except:
(a) where this is necessary for overriding
considerations of public policy of the Member
State concerned, in particular when required
to ensure the protection of the best interests
of children or to prevent harm to the physical
or psychological integrity of a person; or
(b) where disclosure of the content of the
agreement resulting from mediation is
necessary in order to implement or enforce
that agreement.
This is a very watered-down version of
what appeared in the previous version of
the Directive. Mediators and providers were
previously placed under an absolute bar over
giving evidence about:
Par ty inv itat ionsorwi ll ingness to
participate in a mediation;
Anypartysstatements,admissions
and settlement proposals made during a
mediation;
Any mediator proposal for
settlement and any partys expression of
willingness to accept it; and Anydocument preparedso le ly for
the purpose of a mediation.
The earlier draft went further by providing
that any such evidence could not be ordered
by a court to be given by anyone else who
had attended the mediation (remembering
that the mediator is absolutely barred
anyway) and if offered should be treated as
inadmissible, in both proceedings related to
the mediated dispute and also other litigation.
It could only be admitted to the extent
required to implement or enforce a mediated
settlement agreement; for overriding public
policy reasons; or where the mediator and
the parties agree. It also provided that
otherwise admissible evidence would not be
rendered inadmissible simply because it was
used in a mediation.
So it not only gave absolute protection to
mediators from being compelled to give
evidence, but also restricted the content
of evidence that anyone could give about
what happened at the mediation in any later
proceedings, a far cry from the qualified
protection to mediators given as the only
component of mediation confidentiality in the
Directives final form.
Of course we have no such statutory
protection for mediators at all in English
law, merely a contractual undertaking by the
parties not to call the mediator or mediation
provider as a witness. So we need legislation
to achieve even this limited requirement.
But do we need more, and is the current
law clear enough? I suggest that we need
to establish a higher standard and greater
clarity.
Recently judges have either felt able or
been invited to consider what happened at
a mediation, something which is unsettling
for mediators who are used to assuring
parties and their advisers at the outset
of the process that what happens at the
mediation is off the record and not available
to a judge. As a matter of practice, I now
qualify this by saying that it is unavailable
unless you all consent to tell the judge what
happened, reflecting that the parties have
a joint, but not a several, right to waive
without prejudice privilege. In several
recent cases this seems to be what happened.
For instance in both Chantry Vellacott v
Convergence Group and Malmesbury v Strutt
& Parker, the parties told the judge what they
had offered each other during the mediation,
enabling the judge to find that one of them
had been unreasonable in his stance. On
the other hand, in Reed Executive v Reed
Business , the court would not go behind
without prejudice correspondence when
considering a costs award, and in Cumbria
Waste Management v Baines Wilson, the
judge would not permit solicitor defendants
to have access to mediation material
generated at a previous mediation to settle a
dispute between the claimants and DEFRA,
because DEFRA declined to waive privilege
or their contractual right to confidentiality
of the process. In Brown v Rice and Patel,
the judge held that he was entitled to
look at what happened at a mediation to
decide whether settlement terms had been
agreed, even though one party and indeed
the mediation provider objected, and even
though it was clear that no written settlement
agreement had been produced, as required
by the mediation agreement.
No one wants there to be confusion about
what contractual confidentiality and without
prejudice privilege mean in relation to
mediation. It will unsettle what is a very
useful process. On the whole there has been
no difficulty about it, but harder cases are
emerging which call for clarification of the
law. To what extent, and from whom, can a
court receive evidence to support or defeat
a claim by a party that their lawyer under-
or over-settled a case in mediation? Can a
third party claimant get access to mediated
settlement discussions if the parties object,even if affected by the level of settlement (such
as a sub-contractor affected by settlement
between the client and main contractor, or an
earlier lawyer being sued for the difference
between the settlement figure and some
objectively higher appropriate level)? How
precisely may a party, who settles on the
basis of a material misrepresentation made
during a mediation or subject to a threat,
unstitch that settlement? Is it possible to sue
a negligent mediator when this would involve
revealing what the mediator did behind the
veil of confidentiality? Is there a distinction
between contractual confidentiality which
normally is no bar to court investigation
and without prejudice privilege, and if so
how do they interact?
Such problems have already emerged for
consideration in the US and Australia, in
particular, and some fine distinctions are
being drawn. The Uniform Mediation Act in
the US suggests hearings in camera to sort
out such issues before mediation material
enters the public domain by judicial decision.
This may be a sound approach here too,
perhaps invoking the power of the court
under CPR 39 to order private hearings.
The debate sparked by the EC Directives
rather limited aspirations is one we now
need to develop for these wider reasons.
The regulatory debate
Another key issue facing the mediation
community is how it should be regulated.
There is a pressure felt amongst the mediation
community to set some standards in place in
order to discourage cowboys leaping on to
a new market bandwagon, and to encourage
good practice rather than bad practices so as
to create a way for buyers of services to know
that they are dealing with someone of at least
reasonable quality.
Although there are limited instances of real
problems with this flexible, non-binding
process, the Civil Mediation Council (CMC) is
aiming to set both basic standards of practice
requirements for individual mediators and
mediation organisations which register with
it. Both groups will have to (a) confirm that
they meet the standards set, and (b) will
have to commit to follow a Code of Good
Practice, and (c) to be subject to the CMC
independent public complaints scheme. It
is a three-part system of supervision that,
while being light touch, aims to ensure that
reasonable minimum requirements are
followed by anyone claiming to operate in a
professional way. The CMC will encourage
courts and public sector bodies particularly,
to ensure that they use registered mediators
or organisations, if they are inviting tenders
for services or otherwise using mediators or
organisations delivering mediation services.
In addition to commercial mediation, this
scheme will be open to workplace providers
of mediation, a development stimulated by
recent employment legislation reform.
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Fusion: A threat to independence in CriminalJustice
With legal-aid fees plummeting, the Crown Prosecution Service and defence solicitors using more
and more employed in-house advocates instead of independent barristers, with judges refusing to
allocate serious cases to Queens Counsel, and the morale of the independent criminal Bar at an all-
time low because so many are not even earning a living, Sir Ivan Lawrence QC answers those who
think that the resulting, and seemingly inevitable, moves towards fusion, (barristers and solicitors
becoming a single category of lawyer), will be good for the criminal justice system.
To begin with, the casefor fusion has nothing
to do with the quality of
criminal justice: it is about
money. Yet the idea that
fusion would result in a
considerable saving of money to the tax-
payer, is ridiculous. Solicitors, who have
higher overheads, charge far higher hourly
rates: indeed they employ barristers in the
magistrates courts because it is cheaper for
them than having to appear themselves.
Furthermore, barristers who necessarily pay
their own overheads and pensions would,
if they joined as employees the Crown
Prosecution Service or any other government
legal organisations, have them paid at the
taxpayers expense - plus health provision
and annual holidays with pay!
Secondly, the assumption that, having both a
solicitor to prepare a case and a barrister to
present it, unnecessarily doubles the work
and therefore the cost of criminal trials, is
also nonsensical. Two jobs would still have
to be done by two people, whether they are
solicitors or barristers. Complicated cases
involving a number of witnesses, cannot be
both prepared and presented at the same
time by one person. The former requires
investigation, tracing of witnesses, taking
of statements, and getting them and their
exhibits to court: the latter requires learning
and marshalling the facts, being up to date on
the law and planning and delivering effective
advocacy. Furthermore, a solicitor running
a business cannot suddenly drop work that
he is doing to run off to court to present
someone elses case: and adjournments dueto the unavailability of the advocate are very
expensive to the system and harmful to the
representation and standing of the firm.
Thirdly, in-house barristers employed by
a solicitors firm (or even by a government
organisation) to carry out advocacy alone,
sometimes face another problem. The
employer requires him (or her) to do a certain
amount of work in a certain way within a
certain time as a dedicated fee-earner, and
having in mind the loyalty to his firm (and
his job), the barrister has to comply. The
self-employed barrister, on the other hand,
owes allegiance to his client and to the court:
he owes no professional allegiance to an
employer telling him what action would be
in the best interests of the firm, nor does
he have to concern himself with whether
his employer is making enough money or
has available the required resources. His
independence and commitment to his client,
is of paramount importance to the integrity of
our unique system of justice.
Fourthly, you would not want your family
doctor, or another doctor in the same general
medical practice, to carry out your brain
surgery, and you would want an independent
consultant, skilled through experience in
his chosen field of work, to advise on the
prognosis of a complicated illness: the self-
employed barrister similarly provides the
independent expertise. Like surgeons and
medical consultants, barristers are trained
specialists particularly skilled at performing
their tasks. They are not allowed to take work
that they are not equipped to perform. Theyhave to undergo continuing legal education.
They are ceaselessly monitored by judges,
instructing solicitors and their colleagues.
So, fifthly, one very important advantage of
the dual profession is that everyone charged
with crime, however lowly his condition, can
have access to the finest defenders practising
at the Bar. He does not have to be represented
at court by a member of the solicitors firm:
he can select from the ranks of available
counsel at large. A fused profession would
hardly be able to avail itself of that degree
of choice.
Sixthly, in the real legal world of increasing
volumes of paper-work and of the appeal
courts relentless changes to complicated law,
the judges, in order to conduct their cases
as speedily as possible, have to rely on both
the experience and the integrity of the Bar.
Inexperienced in-house part-time advocates
inevitably slow the administration of justice
and add to its expense. There is already
plenty of anecdotal evidence that all is not
well with criminal trials where the accused
is represented by an inexperienced solicitor
advocate.
Seventhly, our judiciary has earned
a reputation over the years for being
independently-minded and not beholden in
any way to the wishes of its paymaster, the
State. Much of that tradition of independence
stems from the fact that the higher judiciary
has always been drawn and is still mostly
drawn- from members of the independent
and highly trained Bar. That is not to say that
judges chosen from solicitors or the employed
Bar are not capable of independence, of
course they are: but life teaches us that it
may be difficult to live down a life-time of
obedience to a superiors wishes.
It is surely clear that these many
advantages of our present dual
profession of the law have immense
value not just for the integrity and
efficiency of the criminal justice
system, but also for the important
perception of it as being fair, by thosewho have to use it and submit to its
judgements.
The public impression, carefully fostered by
some of the media, is that barristers are all
fat cats with their snouts in the trough.
Nothing could be further from the truth,
for the publicly-funded Bar. And if more
and more young barristers, with their high
student loans to repay, and their already
hopelessly inadequate legal-aid fees, halved
by their overheads of clerks fees, chambers
rent, pensions, insurances, travel costs,
hotels, books, and equipment, are driven
away from the self-employed Bar to work
as full-time employees, the British criminal
justice system, and its reputation in the world
for independence, will suffer. If more senior
barristers are driven into accepting employed
status for the sake of their economic security,
the situation will be even worse.
It is quite obvious that the public, the
government, members of Parliament and the
civil service, who between them guide our
futures, have little idea of how much would
be lost by fusion. That is because there has
been no public debate: we just seem to be
drifting very quickly in that direction.
I can say, with the experience of 23 years in
Parliament, that those who have power over
us do not always wish to have contentious
matters brought into the open for public
discussion. Certainly those of our masters
who are enthusiastic for fusion, but who
have never mentioned the word in their
dealings over the legal-aid scheme, would
prefer to keep their silence.
All the more reason, for there to be a
public debate and for that to start
immediately. Before the independence
which is the glory of the British
criminal justice system completely
disappears.
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10 the barrister
course have been reviewed by no
fewer than four working parties,
each chaired by an eminent
udge, practitioner or academic: Bell (2005);
Neuberger (2007); Wilson (2008) and finally
Wood. The standards and quality of all BVCs
have, moreover, been monitored frequently,
via detailed annual reports from providers,
and by Bar Council (now BSB) appointed
external examiners and panels.
According to Wood, though, there remained a gulf of misunderstanding.. between the
practising Bar and the BVC. The impression
persists among many practitioners that the
BVC is flawed in most or all of the ways
described (above)
Faced with all this Woods approach was
robust, businesslike and fair, and its outcome
could best be characterised as tough love.
On the tough side are its recommendations
that:
The BSB should introduce a
challenging aptitude test, covering analytical
and critical reasoning and fluency in written
and spoken English, which all those wanting
to take the course (to be re-styled as the Bar
Professional Training Course) from 2010
onwards will have to pass in order to qualify
for entry.
Theknowledgeareasshouldbe
tested by a combination of multiple choice
and short answer tests: the former set and
marked by the BSB; the latter set by the BSB
but marked by the providers
The pass mark for these tests
should be raised to 65
Those who fai l these tests ( or any
other summative assessment) should be
allowed only one re-take.
More loving are its conclusions that:
Therationaleforthecourseremains
sound. Wood reaffirms that its sole function
and purpose..is to introduce prospective
barristers to the practical knowledge and
skills they will need to provide a high quality
professional service to their future clients.
It therefore not only rejects the idea that the
course ought necessarily to be accredited
towards Masters level degrees, but warns
that, where particular providers decide that
it will do so, this should not detract from
(its) essential character as a practical trainingcourse for the profession.
Thecontentofthecourseislargely
fit for purpose (though it recommends the
introduction of a new compulsory module on
Resolution of Disputes out of Court and that
Professional Ethics and Conduct should be
separately taught and assessed).
Thequal ityo f teach ingandother
resources are satisfactory
The academic entry threshold
should remain at a 2(ii) degree. However this
has to be set in the context of the new aptitude
test, and the removal of any BSB discretion to
allow students who have not obtained a 2(ii)
to take the course.
Taken as a whole it is a formidable
achievement and a great credit to the working
group which conducted the review and the
small BSB team which supported it.
It manages to distinguish between concerns
which are real, provable and serious;
and those which are based on prejudice,
misguided aspiration, or hearsay; or which
simply reflect the gulf of misunderstanding
noted above
Its recommendations are commensurately
measured, sensible and convincing. They are
consistent with both the proper educational
aims and objectives of a vocational stage
programme for the Bar; and with the
professions responsibilities to ensure the
widest possible access and diversity.
It was completed in a remarkably quick time
and this despite its having included a specially
commissioned survey among students taking
the BVC. All stakeholders were thus spared
the blight, analysis paralysis and consultation
constipation which afflicted the Legal Practice
Course over the seven or so years that it took
the Law Society to complete the TrainingFramework Review.
It has therefore strengthened the BSBs claim
to be an effective and independent regulator,
- something which will almost certainly be
of great benefit to the Bar after the Legal
Services Authority starts work on 1 January
2009.
On the other hand, though, there are, of
course, limits to what a review of this kind,
and at this stage in the history of the BVC and
the Bar itself, could possibly have achieved.
Firstly, Wood notes that (w)e have the
impression that the profession has become
disengaged from the course which trains its
recruits.In truth the course should belong
to the profession as much as it belongs to the
providers. If practitioners were more willing
to take responsibility for it they would, we
suggest, be more satisfied with it and there
would be fewer complaints. Some of the
reviews key recommendations anticipate
and will require a significant level of active
support from the practising bar. This cannot
be guaranteed, and it remains to be seen to
what extent it will be forthcoming.
Secondly, there can be little doubt that over
the next few years there will be severe
pressures on the profession as a whole, but
most especially on the junior bar, and thus the
availability of tenancies and pupillages. These
will come from a number of directions: the
Carter reforms (and the further restrictions
on public expenditure, which are inevitable
from 2010 or so onwards); the Legal Services
Act, and the general economic climate.
Solicitors and others (including CPS
caseworkers) could well undertake an
increasing proportion of advocacy in the
lower courts, while an increasing proportion
of qualified barristers could be working
from Legal Disciplinary Partnerships or
Alternative Business Structures and the
professions centre of gravity could shift
markedly from independent to employed
practice.
In these circumstances, it seems almost
inevitable that in the not-too-far-distant
future the Bar will once again have to
review its vocational stage training, and
perhaps even to consider whether a separate
vocational stage for barristers and solicitors
is any longer justifiable.
In the meantime, however, Wood has provided
a clear, sound route map for the BVCs further
development; has (probably) enabled it to a
period of relative (and much needed) stability;
and has given key stakeholders (most notably
students and practising barristers) as much
reassurance as to is standards and fitness for
purpose as they could reasonably expect.
Richard de Friend
Chair Academic Board
Senior Academic Registrar
Director College of Law Bloomsbury
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12 the barrister 13the barrister
Legal globalization: an expanding picture
While the picture might be expanding, is a uniformity of legal practices spreading, thereby
contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue
our investigation into legal globalization and consider in particular the effect different jurisdictions
are having on each other.
By Alistair King of Justis Publishing
L
eaving a slight, almost
imperceptible but presumably
deliberate comic pause in the
phrase dreadlocks and their
liking of cannabis, Lord
Bingham described just two ofthe many aspects of multiculturalism and
multi-nationalism that have challenged but
often enriched British law and its evolution
over the decades and centuries.
In this case it was Rastafarianism but, as he
went on to illustrate in his keynote address
at Novembers Bar Conference, there are
numerous examples from our long and
sometimes inglorious history, from 1290s
edict to Jews that they should change orgo home to twentieth-century debates on
whether Sikh men should be exempt from
crash helmet laws and workplace uniform
regulations.
Like the English language itself, English lawhas evolved and to an increasing extent, the
meaning of which I hope will become clear
devolved. Diverging away from other nations
legal systems in the Middle Ages, it then put
itself about in the Eighteenth and NineteenthCenturies as its British masters set upon
their attempt to colonize the planet. Other
European colonial powers were no different.
So has their influence effectively brought
about a new convergence of laws and legal
practices? And whats the state of play ina Twenty-first Century dominated by the
threats and opportunities presented by
emerging economies?
Bordering on agreement?
In the last issue of this journal we looked at
the globalization of the law from a practice
area point of view. Establishing the germs of
a consensus in the academic and professional
community, we showed how different areas
of commercial law, and even family andcriminal law, were influencing practitioners
work across the globe. Though we wont
depart from further consideration of those
different areas of work, in this issue we will
also expand on the jurisdictional dimensionof the story.
We investigate, among other things, how
global trade might have made it inevitable
that laws come together; how the internet has
influenced the process; if some legal systems
are insurmountably incompatible; and we
continue to consider how the phenomenon
is affecting peoples work, their research and
the type of material they need to access.
An LPC graduate with experience in
practice, Rory Campbell has worked in Justis
Publishings editorial department since 2001.
Now its manager, he overseas the detailed anddiscerning process of putting raw law reports
and legislation through the electronic mill.
Ensuring that they are intuitively searchable,
cross-referenced, indexed and compatible
with expected legal terminology, his early
days were focused on the law reports of theconstituent parts of the UK.
Despite significant jurisdictional expansion at
the company, both in its provision of full-text
case reports and in its development of theprovider-neutral JustCite citator, UK cases
remain an important part of Campbells job.
Whats changed, he says, is that in the past
four or five years hes seen a dramatic and
tangible increase in the number of foreign
cases that are being cited in our courts. Theinternet, he tentatively suggests, might even
be the cause of this increase, not just the
solution to accessing this material.
When in Rome
The World Wide Web, it has to be said, hadless impact on the propagation of Roman law
at the time. But in recognition of its historical
significance, we should have a quick look at
this ancient jurisdiction.
A specialist in comparative legal history andRoman law, Andrew Lewis is a professor
at University College London. Though his
institution subscribes to them, Justis and
JustCite which go back to 1163 sadly
cannot boast case law from the First Century AD, the era we discuss. But, perhaps
surprisingly, with statutes being few and
far between, some of the methods by which
the remarkably sophisticated Roman legal
system operated bore some resemblance to
our own. Though case law precedent was notauthoritative, jurist advice like common law
decisions was used to build up the law.
Lewis highlights the variety of officials that
would have presided in court. Each with
a different level of authority and powers of
enforcement, the areas of law they dealt with
and the representatives they gave audience
to are analogous to today an example Lewis
cites is that of a merchant supplying cornfrom Africa to Rome and the associated legal
wrangling. Containing the fullest statement
of the law, the codification of Justinian in
the Sixth Century preserved the writings of
earlier jurists, says Lewis, while reportssurvive from provinces such as Egypt. But,
inevitably, much of it has been lost.
So what have the Romans ever done for us?
On the continent the whole structure andlanguage of private law is deeply permeated
with Roman ideas, says Lewis. Though its
been less influenced than other European
systems, Roman law has influenced English
law too, particularly the law of contract, he
adds.
How does the British Empire compare in its
lasting effect on the world?
Never the twain shall meet?
Isam Salah is an American lawyer. A partnerat multinational law firm King & Spalding, he
operates jointly in the companys New York
and Dubai offices and is head of its Islamic
Finance practice. Many of his transactions
involve enabling his Middle Eastern clients
to adhere to their Sharia principles, whileoperating in an essentially Western legal
setup. Local laws operate in countries such
as the UAE, Saudi Arabia and Kuwait, Salah
says, but these have been influenced over
the years by the likes of Ancient Egypt,Napoleon and, of course, the British. And its
the British or rather English system that
Salah says has become the law of choice, at
least in the commercial world where parties
can effectively choose which jurisdictions
contract laws to use.
But what of the legal compatibility of Sharia
and Western law? Well, theyre not quite as
mutually exclusive as some tabloid leader
writers would have us believe. Putting aside
criminal law, where one must considernot just how crimes are treated but whats
actually classed as a crime in the first place,
commercial law can be adapted quite easily.
A basic tenet of Sharia is that one can neither
pay nor receive interest. This would appear
to preclude strict Muslims from obtaining
mortgages. And this is the case. However,
contracts that are effectively the same
as mortgages can be drawn up. Thoughsubstantively different, Salah explains
that they are economically equivalent, even
though some of the burden of risk is assumed
by the lender, who buys a commercial
property, for example, and then leases it
to the buyer for a period until theyve paidback an appropriate amount to acquire full
ownership.
Without doubt big differences still stand but
the trend if slow is one of moving towards
a gradual compromise.
The application of international court
decisions
Salahs company now subscribes to the
International Law Reports Online, which
Justis Publishing launched in November. Theonly publication in the world wholly devoted
to the regular and systematic reporting in
English of decisions of the international
courts, these fully searchable reports stretch
back to 1919.
Covering all significant cases of public
international law and dealing with such topics
as treaties, war, terrorism and refugees, they
are crucial for litigators practising in the
international courts.
However, rulings from these courts are also
creeping into numerous countries national
courts as persuasive precedent a point not
lost on Mark Muller QC. A senior barrister at
JustCite-subscribing Garden Court Chambersin London, Muller was on the five-year-long
Access to Justice in Afghanistan Project.
For his unpaid work on this he, and the
rest of the four-person team, won the recent
Bar Pro Bono Awards, presented by our
man Bingham following his aforementionedspeech.
Muller explains that under the UKs Terrorism
Act (2000), its very easy to ascribe charges
of terrorism to the activities of any numberof pressure groups around the world.
Preparation for such cases, he says, requires
much consideration of comparative and
international law. Muller allows that tensions
can arise as British courts are often loath
to accept international law. However, thearguments are being raised, even if theyre
not [necessarily] accepted.
Time will tell how many decisions are
followed at a national level. Given the global
political and economic upheavals weregoing through, my hunch is that it will be a
significant proportion. Proof, perhaps, will
be offered by JustCite, which from later
this year will index and cross-reference the
International Law Reports against nationalcases and journal articles from an expanding
range of jurisdictions, currently including
England, Scotland, Ireland, Australia, Canada
and Singapore.
Of course in the international courtsthemselves theres no debate on their
admissibility.
Professor David J. Bederman lectures in
public international law at Emory University
Law School in Atlanta. I mix teaching withadvising in private, he says, and he is often
called upon for the Appellate Bar and US
Supreme Court. It was while litigating at
the latter on the issue of foreign sovereignty
immunity that he successfully cited a casefrom the International Law Reports.
But heres the rub: this was before their
digitization, so Bederman had to rely on thehard copies. I didnt begrudge going through
them book by book, index by index, becausewe won the case, he says, but Ill sure be
glad in the future that you can do intelligent
Boolean searches and get the same results.
Now, of course, he can.
So why should a law firm subscribe? Becausethey could save an associate 27 hours in
a case where it matters is Bedermans
analysis, based on his estimate that the 25 to
30 hours I spent going through volume after
volume would be reduced by an order ofmagnitude.
Continental divide: closing the gap
Legal research isnt all about time-saving
but it certainly helps, particularly if your
area of law is influenced by recent European
legislation and theres precious littledomestic precedent on which to support
your arguments in court. In many branches
of commercial law, particularly intellectual
property and competition law, this is all
too often the case and English courts are
beginning to recognize this, with manyof them allowing precedent from other
European national courts.
Such a problem arose for Jane Wessel,
a litigating solicitor at London law firm
Crowell & Moring. Last year she representeda company who claimed to have been
overcharged by a carbon brush manufacturer
that was found to have been part of a Europe-
wide price-fixing cartel.
Seeking damages for her client through the
English courts, Wessel didnt at the time have
access to Caselex, a new service distributed
by Justis Publishing that solves the problem of
easy access to other member states national
court decisions by providing a searchabledatabase of case summaries in English.
Wessel eventually found the European cases
she needed to fight her corner but Caselex, to
which she has since subscribed, could have
made things much simpler.
Previously I used the European Commission
website to search for cases, she says, but
you cant enter a search and scan through to
see whether you need to refine it for future
searches.
However, she adds, with Caselex "...
competition law, appeals, cases on
jurisdiction under the Brussels regulation...
its all so easy to find, so youre confident that
youve completed your search.
Orient hearing
So what of the future? One of the big
questions is China. In the aftermath of
the Cultural Revolution, the country had
effectively no legal system. Britains ChinaLaw Council was set up by the Bar Council
and Law Society in the late 1980s to providepractical training in the UK for a fledgling
base of Chinese lawyers. Still continuing that
drive, the council also provides a network for
practitioners to exchange ideas and pursueopportunities in both countries.
Adrian Hughes QC of 39 Essex Street
Chambers is the Bars joint Chairman of the
council. The industrial powerhouse mayhave a newly developing legal system but
it has a 1,500-year tradition of mediation
compared to our more recent adoption over
the last 20 years, says Hughes, so its a
two-way educative process. In the past five
or 10 years, our mutual collaboration hasbeen viewed by practitioners as increasingly
relevant to both sides, he adds.
Though its legal system is codified, the Chinese
government has a strong commitment to law
reporting. And the decisions of its courts arebecoming of increasing interest to Western
courts. A new database, iSinoLaw, has sprung
up to cater for this and the concept is met
with enthusiasm by Hughes. But, as we wont
do justice to the service or to Chinese lawitself in the penultimate paragraph of this
short article, well have to save expansion on
this for another day.
And for the closing paragraph itself? Well,
the argument must remain moot. A NewWorld Order of Law remains a distant dream
(or nightmare); but frequent use of other
jurisdictions arguments and systems could
soon be the norm.
Before j oining Justis Publish ing, Alistair King was a journalist for Building
magazine. This followed time with academic
publishers Routledge and Pickering & Chatto.
Along with The Barrister, he has written for
the Student Law Review, Your Witness andthe Australian Law Librarian, and he has
collaborated with the Irish Times. Articles
from these and more can be read at www.
justis.com and www.justcite.com.
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14 the barrister
A new era dawns: Are we awake?
Andrew Butler, Barrister at Tanfield Chambers, considers the arrival of the Legal Services Act
and what this means for how barristers should market their expertise, and reviews his chambers
experience so far in embracing the new era.
The Legal Services Act 2007
A
mong the regulatory
objectives of the Legal
Services Act 2007 is the
need to improve access
to justice, protect and
promote the interests of
the consumer and encourage an independent,
strong, diverse and effective legal profession.
The aim is clear: the Act seeks to encourage
change in the legal marketplace, but how,
as barristers, will this affect our profession?
Will it radically alter the relationship between
solicitor and barrister? Will we see barristers
working in partnerships? One change that
is already here is that of a more accessible
legal market for consumers through the
increasingly utilised means of Public Access.
As a result, the consumer will want easy
access to information on the track record
and expertise of the barrister this must be
addressed. Are you listening at the back?
Public access to information
A Green Paper in 1987 suggested a change
in the traditional two-tier approach that
has always been adopted by the profession
in this country i.e. a solicitor instructs a
barrister on behalf of the client. The rules
subsequently changed in 2004, allowing the
public to approach and instruct barristers
directly for certain purposes. The traditional
role of the solicitor as intermediary has been
altered and in many cases the consumer will
be looking to appoint a barrister directly
resulting in an increasing public appetite
for on-demand interaction. Rather than
relying solely on solicitors advice, the
technologically aware consumers of the
21st century will seek out information on
barristers, enabling them to make educated
decisions about who their advocate should
be. The role of the solicitor is likely to remain
significant, aside from continuing to refer
their clients, they will continue to perform
essential tasks that barristers cannot, for
example, be engaged in, such as the general
management or administration of a clients
affairs. Nevertheless, the point remains
that barristers can no longer solely rely
on solicitor-driven work as the consumer
embraces the notion of direct access. Whilst
maintaining the traditional alliance with
solicitors, the Bar should properly consider
the impact of online technology on consumer
buying habits.
The Internet has enabled consumers to be
increasingly savvy in making choices. An
incredible depth and breadth of information
available on the internet means that we all,
as consumers, make informedchoices and,
as a result, simply disregard products if we
have no point of reference as to their success,
popularity, effectiveness etc. It is time for the
Bar to catch up with the trend that has been
set by other sectors and professions we
need only look at insurance, travel, finance
and supermarkets to see how advanced the
process of information merchandising has
become.
Tanfields experience
Against this background, the departure in
August 2007 of our Chambers Director
seemed to me to be a cloud with a silver
lining. Capable though he was, losing him
provided an obvious opportunity to re-vamp
chambers marketing practices and maybe
bring in some external expertise. And, while
we were about it, why not have a look at our
old, tired website?
Of course, politely pushing for change in a
chambers meeting is, I imagine, a bit like
going out for a quiet drink in the days of press
gangs. I immediately found myself chairing
our Marketing Committee and meeting a
succession of web designers distinguishable
only by the varying levels of technical jargon
they employed. Eventually we resorted to the
tried and tested technique of asking the only
people whose language we could understand
other barristers.
Thus settled on a reputable firm of legal PR
consultants, we commissioned them to audit
chambers, identify some brand values
and think how to accentuate and articulate
those values, making us as distinguishable
as possible. After all, werent we just another
collection of jobbing barristers striving to get
work? Not quite, it seems; the audit revealed
certain strengths and weaknesses which
most of us collectively recognised, while at
the same time never quite realising we had.
How to weave these brand values into a
website? For this, we retained the services
of a niche design company who produced
two concepts for us both visually striking,
both fresh, both some way removed from
what one might often see when visiting
those of other chambers (when not dazzled
by ones opponents terrifyingly impressive
credentials). We drew on aspects of both
concepts, and two weeks later we were
shown the result. The ability of the designers
to reflect our various wishes and preferences
was enlightening and impressive; I have
seldom seen a committee of barristers
reduced to such a state of reluctant, helpless
unanimity.
The next task was selling the result to the rest
of chambers, and for this purpose we held an
open afternoon for members to come and
inspect the site (at this stage just a succession
of PDFs) themselves. This of course was for
my benefit not theirs, an insurance policy
against later expressions of dissatisfaction,
and as a precaution I arranged it for a Friday
afternoon when I was in Court. It went
swimmingly; the designers said that those
who came along were cheerful, polite, to the
point, and obviously more interested in going
out for a drink!
Utilising yet a third set of professionals
to construct the site, we harmonised the
presentational side and the technical side.
The aim was to try to think really hard about
how our clients not forgetting that this now
extends to the general public too - would
want to use our website, making it as easy as
possible for users to choose barristers by call,
experience and expertise, and highlighting
in a self-contained section those who are
prepared and qualified to accept Public
Access work. We also wanted accessible
images, with an element of wit and latitude;
I am particularly pleased that one members
dog basket (or technically, I should say, that
of his pet dog) will now adorn our pupillage
page, and that a bottle of champagne left
incongruously in a row of files introduces
forthcoming social events.
That left only the small task of collating the
members profiles and photographs. This
threw up a number of contentious issues (in
particular But why cant Diocesan Law have
its own Practice Group? and Im not really
that fat, am I?) but, by a combination of
cajoling, flattering, and threatening to write
them myself, they all seem to have got done.
Of course, the information that is available on
the website about an individuals expertise
and experience is just as important as the
message that the site communicates about
the set as a whole. But, being part of a strong
brand will, however, naturally reinforce the
consumers feeling that they are looking at
the right person for the job.
The site has recently gone live and I leave
it to others to judge the results. All I hope
is that those solicitors whom our clerks
say they can hear down the phone tapping
away in search of the profile pages of those
being put forward for potential briefs will
be pleasantly surprised by what they find.
And the cost of all this (plus a vibrant media
promotions programme which now sees our
members obtaining media space like never
before)? About half the annual salary of our
former chambers director. No disrespect to
an excellent professional like him, but I think
its money well spent.
Dont drop off
The main message, in my opinion, is that
solicitors and
barristers should
embrace the
change that the
Legal Services
Act 2007 will
and is already
bringing about.
Online technology
provides an
e x c e l l e n t
opportunity for
the Bar to promote
competition in
the provision of
services and to
encourage an
i n d e p e n d e n t ,
strong, diverse
and effective legal
profession lets
use it effectively.
Solicitors will
continue to
instruct barristers
but advances in how the consumer can
obtain information about services on offer
means that the Bar must respond accordingly
so that they can in fact reap the benefits
of change rather than shying away from
it. There is no denying that consumers are
becoming increasingly reliant on online
technology to help them make their decisions
whether it be in their choice of insurance
provider, supermarket or indeed, legal
expert. Therefore, as service providers, we
need to ensure that the volume and quality of
information about the service we provide is
in line with the requirements of the consumer
so that they can ultimately make an informed
choice.
Andrew Butler, Tanfield Chambers
www.tanfieldchambers.co.uk
31 Dugdale Hill Lane, Potters Bar, Herts EN6 2DP
T: 01707 850969 www.bradish.co.uk mail@bradish.co.uk
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15the barrister
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Enhancing the Participation of Children in FamilyProceedings
The issue of whether or not children should have the opportunity to play a greater part in
proceedings where decisions will be made which will affect the rest of their lives is becoming the
subject of increasing debate.
By Nicholas Crichton, District Judge, sitting at the Inner London Family Proceedings Court
W
ould you want
important decisions
to be taken in your
life without being
consulted? Even ifsomebody talked to you
beforehand and undertook to report your
wishes and feelings to the person charged
with the responsibility for making the
decision, might you want to meet that person
to make sure that they t ruly understand how
you are feeling? Children have views about
what they want to happen in their lives why
should we not give them the opportunity to
make a connection with the person who will
be making important decisions for them?
Put simply, Article 12 of the United Nations
Convention on the Rights of the Child states
that a child has a right to have an opinion,
to have that opinion listened to, and to have
it taken seriously; and specifically to be
provided the opportunity to be heard in any
udicial proceedings affecting him, directly or
through a representative.
The issue of whether or not children should
have the opportunity to play a greater part
in proceedings where decisions will be made
which will affect the rest of their lives is
becoming the subject of increasing debate.
In their research published in Your Shout
and Your Shout Too the NSPCC established
that a significant number of children involved
in public law proceedings would like to
have had an opportunity to go to court; and
that of those who did in fact go to court an
even greater number felt that they received
insufficient support and were not listened to;
and that a larger number of children involved
in private law proceedings would have liked
an opportunity to go to court and speak to the
judge. One of the most concerning findings
was that some children had not felt listened
to properly by Cafcass.
In Mabon v Mabon [2005] 2 FLR 1011
Lord Justice Thorpe and Lord Justice Wall
reviewed and referred to the benefit of the
tandem model of representation of children
in the English courts. Lord Justice Thorpe
went on to say that
it was simply unthinkable to
exclude young men aged [17, 15 and 13]
from knowledge of and participation in
legal proceedings that affected them so
fundamentally.
Lord Justice Wall referred to the reluctance
of the English Judge to talk to children in
private and said that
from the boys perspective it
was simply impossible for the guardian
to advance their views or represent them
in the proceedings. He would, no
doubt, faithfully report to the judge what the
boys were saying, but the case he would be
advancing to the judge on their behalf would
be (or was likely to be) directly opposed to
what the boys were actually saying.
In Re W (Leave to Remove) [2008] 2 FLR
1170 Lord Justice Thorpe spoke of the
participation of children as being a matter
of particular topical concern. The three
judges of the Court of Appeal in that case had
differing views about whether the children in
that case should have met with the judge who
decided their case, and at what point.
In his address to the UK Association of
Women Judges at their Annual Conference in
March 2006 the President said -
The question of the involvement
of children in decision making and the
representation of their rights and interests
in both public and private law proceedings
enjoys a higher policy and public profile
that at almost any other time in our recent
history.
He went on to say
it is my view that, in an effort to
ensure the welfare and happiness of children,
and to listen to their voice first hand, we
should be encouraging judges to talk in
private to children who wish to do so, trusting
the judge to retail the burden of his concerns
or any changed perception having heard the
child, whilst respecting the confidence of the
child in sensitive areas.
In the May 2008 edition of Family Law the
Voice of the Child Sub-Group of the Family
Justice Council published a paper Enhancing
the Participation of Children and Young People
in Family Proceedings - Starting the Debate.
In fact, the debate was started at an event
held at Inner Temple Hall on 20th October.Approximately 150 attended. The event was
chaired by the President, Sir Mark Potter.
There were presentations from two young
people, one who had experienced public law
proceedings and one who had experienced
private law proceedings. Mr Justice Hedley
and Anthony Douglas (Chief Executive of
Cafcass) spoke for greater involvement of
young people. Anthony Hayden QC and
Alistair Paddle, (former chair of NAGLRO)
argued for a more cautious approach. A
distinguished panel which included Mr
Justice McFarlane and Lucy Theis QC, Chair
of the FLBA, then took questions from the
floor. Highlights of the debate can be heard
on a pod cast which can be found on the
FJC website at www.family-justice-council.
org.uk. An edited typescript of the debate is
also available on the Councils website. The
FJC has received some extremely helpful
responses from various quarters. It is hoped
to publish a summary of those responses in
early in 2009.
The Voice of the Child Sub-Group does
not suggest that all children should attend
court. Nor do they suggest that those who
do attend court should be giving evidence,
except in very rare cases. Their wishes and
feelings are properly established by trained
and skilled professionals away from the
court and presented to the court in written
form. However, as the NSPCC research
demonstrates, there are a significant number
of children who feel excluded from the
decision-making process and who would
like to have a greater connection with that
process. In order to establish that connection
they need to be provided with age-appropriate
information to enable them to understand the
process and the role which they might play.
They need to have it explained that whilst
their wishes and feelings are important, they
are not necessarily determinative. When I
see children in my court I make it clear that
we cannot have secrets from their parents
and the other parties in court; and that
judges have rules they are required to take
a number of different things into account,
just one of which is their wishes and feelings.
It is my experience that children have little
difficulty in understanding such basic rules.
Of course there are challenges
we have constantly to balance the
Human Rights issues against welfare issues;
there is a significant difference
in assessing the needs and assessing the
wishes and feelings of children in private law
compared with public law;
if a child expresses an interest
in seeing the judge, there needs to be
discussion as to how this need may be met
the Enhancement paper already referred to
raises various possibilities.
It is my personal belief that Cafcass officers
should routinely discuss with children and
young people of an appropriate age and
understanding whether or not they would
wish to meet with the judge, at the same time
explaining that not all judges will be willing to
see them. In my view, and in the view of the
Sub-Group, judges should not be reluctant
to meet them. Many judges like to have a
photograph of the child in order to give a
face to the person for whom they are making
a decision better still, surely, to meet in
person? It needs to be stressed that the object
of the child meeting the judge is not to assist
the judge but rather to assist the child. There
are many ways in which this can be achieved.
It is rarely appropriate for the judge to see
the child in the presence of parents or other
parties. He can see the child in his chambers
or in the courtroom. He should do so in the
presence of another professional such as the
Cafcass Officer, the childs solicitor, the court
associate or legal adviser. It is my practice to
agree a note of what was said which can then
be shared with the other parties.
Some will find it easier than others to talk to
children. Guidance and training needs to be
introduced to assist judges in communicating
appropriately with children, which would be
of benefit to all. The members of the sub-
group would like to think that ten or fifteen
years from now judges will be routinely
seeing those children who wish to see
them. Of course, some children may prefer
the decision to be made without meeting
the judge. What is important is that the
alternatives are discussed with the child and
that he should be given the choice. This means
providing the child with the information to
enable him to understand the whole process
and then discussing it with him in order to
establish how best to meet his individual
needs. Involvement is empowering, even if
it results in the child declining to take part.
Empowerment increases confidence and self-
esteem. Refusal to meet a child who wants
to meet the judge lowers confidence and self-
esteem.
I started this article by posing some questions.
I conclude by posing another should
judges be making these sorts of decisions if
they are unwilling to meet the people they
most affect and sometimes, in appropriate
circumstances, to explain their decisions to
them?
Note: in this article children should be
taken to include young people; and judges
should be taken to include magistrates sitting
in the family proceedings court.
Nicholas Crichton is a District Judge, sitting at
the Inner London Family Proceedings Court,
a member of the Family Justice Council and
the Chair of the Councils Voice of the Child
Sub-Group.
16 the barrister 17the barrister
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8/9/2019 Barrister Magazine issue 39
10/21
18 the barrister
Public Inquiries - do they really work?
By Ann Alexander, formerly Senior Partner of national clinical negligence law firm Alexander Harris
Barely a week goes by
without fresh calls for a
public inquiry of some
kind. Whether these
calls arise from the
Lockerbie and Omagh
bombings or the circumstances surrounding
the recent death of a young student in Leeds,
public inquiries are seen as being the most
effective way of investigating major tragedy
so that lessons will be learned and change
will happen. After all, it is well known that
following such an event, grieving families
are intent upon discovering the truth behind
what has happened and most importantly
want to make sure that change is effected
so that no-one else will have to go through a
similar experience.
In recent years there have been many
examples of major organisations who have
failed to carry out their responsibilities,
whether they are substantial companies or
government agencies, and often the result of
those failings is catastrophic human tragedy.
In the health care arena, for example, one
only has to ask why so many babies died in
the cardiac unit at the Bristol Royal Infirmary
between 1988 and 1995 and how HaroldShipman, the general practitioner from
Hyde, Cheshire managed to kill so many of
his patients throughout his career without
arousing suspicion?
Families call for public inquiry an all too
familiar headline following such a tragedy
but do those families actually know what they
are asking for? Michaela Willis 7 day old son
Daniel was one of the 29 babies who died at
Bristol. She chaired the Bristol Childrens
Heart Action Group and recently told me that
they didnt know what one was. Neither did
the Shipman families when they approached
me for advice about how they might have
such an inquiry after his criminal trial. But
these families know that they want answers,
and for the truth to be revealed in a totally
independent forum. And most importantly
they want complete transparency for that
search for the truth to be conducted in public
with the media present to report on the
evidence being given so that all the details
will be exposed and nothing can be hidden
away behind closed doors. After all, in spite
of a lengthy legal battle which went to the
Court of Appeal, the parents of the children
killed and injured by nurse Beverly Allitt in
Grantham had to settle for an investigation in
private with little involvement for themselves
or for journalists. And today, nearly 15 years
later, many of those parents still dont feel
that they know enough about what really
happened and why.
Whilst inevitably to some extent those
responsible will have been one or a handful
of individuals - after all it was Shipman
himself who killed his patients - it is the
exposure of failings in the systems which
is vital to identify where and how change
must take place and for the Inquiry to make
recommendations for change.
But that is all an Inquiry can do make
recommendations. They are not the law. And
it is then up to government to decide whether
it accepts them and when and how to
implement them. And there lies the problem.
In a series of reports following the Shipman
Inquiry, Dame Janet Smith made hundreds
of recommendations for sweeping changes
across the systems in which general
practitioners operate to close all the loopholes
Shipman had exploited. Writing in her first
report published in 2002, Dame Janet said:
"I hope to be able to make recommendations
which will seek not only to ensure that a
doctor like Shipman would never again be
able to evade detection for so long, but also
to provide systems which the public will
understand and in which they will have well-
founded confidence."
But even though the government
formally accepted very many of those
recommendations, they have still not been
implemented. Recently, nearly four years
since the publication of Dame Janets sixth
and final report, a report from the Healthcare
Commission says more work is necessary
to ensure all concerns are picked up,
investigated and, where appropriate, action
is taken.
And this is by no means an isolated example.
There have been 70 public inquiries into
child abuse cases in England and Wales,
producing thousands of recommendations.
But that failed to prevent the death of 8-year-
old Victoria Climbi, which was itself followed
by another far reaching Inquiry under Lord
Laming.
A number of reasons might be put forward asto why this might be the case. It is beyond the
brief of an Inquiry Chairman to make sure
something happens after his or her report is
published and government ministers who do
have that responsibility move departments.
In March 2006 when Harriet Harman M.P.
was Minister of State for Constitutional
Affairs she went to Hyde, Cheshire where
Shipman practised as a GP to talk to some of
the families about how her department was
implementing the changes to the Coroners
system but shortly afterwards she became
Deputy Leader of the Labour Party and she
had to pass the responsibility to someone
else. That is what civil servants are there for
but the families believe the impetus has been
lost and little has happened.
And is that good enough?
In the course of making a documentary
recently for Radio 4 about how such Inquiries
work,
I spoke to a number of people with
considerable experience of public inquiries
and I asked whether there needs to be a
change in the way in which the Inquiry
system operates.
Neil Garnham QC was Leading Counsel
at the Climbi Inquiry and told me that
there needs to be a follow-up process. That
process should, he says call to account
the government departments or the local
authorities or whoever it is, to ensure that
they have done what has been expected of
them and that needs to be a refinement to the
process of some inquiries.
The idea is supported by Richard Lissack QC,
who has been involved in nine inquiries and
is the editor of a forthcoming book on the
system. It would be an extremely good idea
to build into the inquiry process the idea of
someone being charged with seeing through
the recommendations for change. This would
ensure it doesnt just sit on a shelf for six
years gathering an ever thicker collar of
dust.
At present there is no procedure for anyone
to take responsibility for making the changes.
And of course because the media spotlight
has died down, there is regrettably an
assumption on the part of many that the
changes have in fact been implemented and
the failings have been fixed. Theres no doubt
that the process has a beneficial effect on
cultural change; it does inform the public.
And whilst it has to be up to government
to decide which recommendations it
accepts, what is the point in having a
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