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1 the barrister #50 ESSENTIAL READING FOR BARRISTERS 3rd October - 21st December 2011 Michaelmas TERM ISSUE Est price 2.80 ISSN X Challenging the Age of Austerity The coalition s spending cuts are set to have an unprecedented impact on the landscape of local and central government decision making. Outlined in the October 2010 Spending Review, they equate to an average cut in departmental spending of 19% over the next four years. Public bodies are having to make progressively more unpopular decisions as to the allocation of resources and provision of front line services. Campaigners and local authorities are turning increasingly to judicial review in order to resist austerity measures. The legal challenges grouped together under the anti-cuts banner are far from homogenous. But it has become increasingly apparent that the challenges which have succeeded, have tended to be those framed around a breach of the Public Sector Equality Duties ( PSED ), rather than more general grounds, such as a failure to consult. The Victories... Cases: To date, there have been four major victories against the cuts. The first of these came in January 2011, with the quashing of a decision of London Councils to cut the funding of a Roma support group (R (on the application of Hajrula) v London Thom Dyke Barrister Councils [2011] EWHC 448 (Admin)). The claim was brought on grounds of insufficient p.6 Young Adults and Maturity: the case for sentencing reform Earlier this year our sentencing system witnessed a pioneering development. For the first time in England and Wales the concept of maturity, as distinct from chronological age, was formally introduced into the sentencing process. This is a very welcome shift in sentencing, bringing us more in line with the vast majority of our European neighbours where it has long been accepted practice to take account of the developmental stage of young adults, and where in some countries young adults aged are formally integrated into the juvenile justice system. What has changed and what lessons can be learnt for future criminal justice policy? What has changed? In June this year the Sentencing Council guideline on assault offences came into force. This formally introduced the issue of maturity into the sentencing process with the inclusion of age and/or lack of maturity where it affects the responsibility of the offender as a personal mitigating factor for those over the age of Subsequent consultations by the Sentencing Council on new guidelines for drug and burglary offences have continued to include lack of maturity as a mitigating factor. This is to be welcomed given the substantial body of evidence showing that brain development continues into the mid to late 20s, affecting reason, judgement and impulse control. It remains to be seen whether, and to what extent, this mitigating factor is now adopted by the courts, and how it impacts on local sentencing practice. A difficulty in widespread adoption p Features A time for change? The Legal Education and Training Review When creating the Legal Services Board ( LSB ), the Legal Services Act 2007 also laid down its main objectives. One of these specifically requires the Board to encourage an independent, strong, diverse and effective legal profession - section 1(f). By Deveral Capps, Northumbria University BPTC Providers Representative on the Legal Education and Training Review s Steering Panel Appealing School Exclusion the hard sell For a child, permanent exclusion is perhaps the most severe punishment they could face without becoming engaged with the criminal justice system By Adam Porte, Co-Director, School Exclusions Project A new type of a Law Report for a new type of emerging law! There s much change afoot with our beloved law reports and we now have a new addition to go with all the old favourites such as the All Englands and the Weekly Law Reports. By Phillip Taylor MBE, Richmond Green Chambers News Incoming Chair of the Criminal Bar Association: The Criminal Bar is Vital to Ensuring Justice Bar Council and Criminal Bar Association Voice Qualified support for Courtroom cameras Publishing Director: Derek Payne info@barristermagazine.com Publishers: media management corporation ltd Design and Production: Alan Pritchard info@soinspire.me.uk Chambers People Consultancy and Staff Recruitment Service for Barristers Chambers Chambers People Chambers Consultants Chambers Accounts Chambers Solutions Chambers Training

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3 the barrister 03 A Tale of Two Cities Luxembourg and Westminster By Dr Michael Arnheim, Barrister, Clarendon Chambers, Temple. Sometime Fellow of St. John s College, Cambridge The problem with Europe is not Europe but judicial activism right here in Britain. That was the conclusion I reached in my first article in this series, where the two cities concerned were Strasbourg and Westminster. 1 In the case of EU law I believe the explanation is similar British judicial activism burgeoning with encouragement from the EU coupled with supine impotence on the part of successive British Governments. European Union Act 2011 Now at last the British Government and Parliament have plucked up the courage to stand up to the EU or so we are told. The European Union Act ( EUA ) 2011 received But, if EU law was already supreme under ECA 1972, then the obvious way to roll back EU dominance must surely be to amend that legislation. What changes to ECA 1972 does EUA 2011 introduce? Answer: None. What effect then will EUA 2011 have on the dominance of Brussels and Luxembourg over Westminster? Answer: Umm. none? A German Lesson Is the supremacy of EU law then an inevitable concomitant of EU membership? That is certainly the opinion of the ECJ which was adopted by the English courts, after some characteristic fumblings, in the Factortame case. By then the ECJ had for 25 years been trumpeting the supremacy of EC law over the domestic law of every member state. What this means is that the Germany has reserved to itself the decision on whether to recognise and apply a particular provision of EC law. This was well demonstrated in the July 2005 decision by the German Constitutional Court ruling the law applying the European Arrest Warrant unconstitutional and void. 4 A Spanish Lesson Could the UK have adopted a similar stance in regard to EC law? Probably, if the Government or the judges had thought of it during the Factortame saga. Instead, the House of Lords reversed its earlier position and rolled over on receipt of the ECJ s ruling in Factortame. Factortame arose out of a provision of the Merchant Shipping Act 1988 that sought the Royal Assent on 19 July This However, not every member state accepts to restrict to UK nationals the right to radical new law, as it was dubbed by the Foreign Secretary, repairs the EU s democratic deficit and hands back democratic control of the way the EU is developing to the British electorate. 2 How is this miraculous result to be achieved? Mainly by requiring a referendum on any future treaty that transfers more power to Brussels. More power than what? Answer: More power than the EU has at present. How much is that? Answer: The power given to it by the European Communities Act ( ECA ) 1972, as interpreted by the European Court of Justice ( ECJ ) which accords EU law supremacy over UK law. that proposition even now. Even Germany, dedicated though it is to the European ideal, does not accept the supremacy of EC law. In the famous Solange case the German Constitutional Court declared: [19] Community law is neither a component part of the national legal system nor international law, but forms an independent system of law flowing from an autonomous legal source [20] It follows from this that, in principle, the two legal spheres stand independent of and side by side one another in their validity 3 register a ship as British. This provision was challenged by a number of Spanish shipowners, who claimed that the restriction was contrary to EU law. The matter went all the way up to the House of Lords, which held that the English courts had no jurisdiction to overturn a UK statute. 5 That decision was based on the principle of parliamentary sovereignty, which is still supposedly the cornerstone of the British constitution. The court would not even give the Spanish fishermen interim relief by temporarily suspending operation of the offending legislation, because the granting of an injunction against the Crown was

4 04 the barrister categorically prohibited by section 21(1)(a) of the Crown Proceedings Act However, as the case involved EC law, it was duly referred to the ECJ, which delivered a robust ruling asserting the supremacy of EC law over domestic law. 6 This ruling hit the British legal and political establishment like a bolt out of the blue although the doctrine 21(1)(a) of the Crown Proceedings Act 1947, which states quite categorically that the court shall not grant an injunction against the Crown. The Court of Appeal also rejected the possibility of an injunction against the Home Office, but instead issued a personal injunction and contempt finding against The Lord Chancellor, the Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary. This is all very well, but where is the reciprocal undertaking of the judiciary not to intrude into the provinces of the legislature of the higher law status of EC law was one Kenneth Baker, the then Home Secretary. and the executive? There is no such which the ECJ had been developing for 25 years. Once the ECJ ruling came in, the House of Lords changed its tune completely and slavishly followed the Luxembourg baton. Under the terms of ECA 1972, opined Lord Bridge, it has always been clear that it was the duty of a UK court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. 7 Under this doctrine UK domestic law was the loser, because it could be overridden by EC law, but British judges actually benefited, because they suddenly now had not only the right but also the duty to strike down UK laws that conflicted with EC law. M. v. Home Office It did not take long before judicial activism extended this power into areas which had nothing to do with EU law. When the Home Secretary disobeyed a judge s order to return a deported asylum seeker to the UK, the case trundled all the way up to the House of Lords even though the asylum seeker himself was never found. 8 Who was right? Could a court issue an injunction against the Home Office or the Home Secretary? In my opinion, the correct The basis of this ruling was that neither the Crown nor the Home Office has any legal personality, 9 or simply that in law they are non-persons. 10 The fact that practically every criminal prosecution is brought by the Crown shows just how implausible this argument is. In fact, of course, the Crown most certainly does have a legal personality as a corporation sole. 11 This latter point was conceded by the House of Lords, but the main thrust of its decision was to substitute the Secretary of State for Home Affairs for Kenneth Baker as the party guilty of contempt for allegedly disobeying an injunction. However, section 21 of the 1947 Act disallows court injunctions not only against the Crown but also against an officer of the Crown as a back door to an injunction against the Crown. The House of Lords was therefore effectively rewriting a statute something that unelected judges have no authority to do. Constitutional Reform Act 2005 Reforms introduced by the Blair Government set the stage for a major confrontation between the Government and the judges. In 2005 a concordat between the Government and the judiciary was reached, which was supposedly reflected in the Constitutional Reform Act 2005 ( CRA ). One would expect a concordat to be a compromise agreement, undertaking. Instead, section 17 contains an oath by the Lord Chancellor to respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the nature of the courts for which I am responsible. There is no reciprocal oath for the judges to take and the ordinary judicial oath taken by judges on their appointment also lacks any reference to the other branches of government. From the CRA one would never guess that the most fundamental principle of the British Constitution is still supposed to be the sovereignty of Parliament (in practice largely exercised by the indirectly elected executive), which alone gives this country any claim at all to be a democracy. An American Lesson Besides flying in the face of the sovereignty of Parliament, the CRA does not even pay lip-service to the doctrine of the separation of powers. Appropriate wording for a genuinely reciprocal separation-of-powers agreement is not far to seek and completely different from what we find in the CRA. It may be found in the precise wording drafted by John Adams, later to become the second president of the USA, in the oldest constitution in the world that has answer, as given at first instance, is a simple No, as is clear from the wording of section but the CRA can hardly be described in those terms. Section 3(1) provides: remained in force continuously since 1780, namely the Constitution p.7

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6 06 the barrister consultation and a failure to p.1 properly discharge the PSED. At [61], Calvert-Smith J asserted the importance of PSED, stating that the duties are fundamental duties. They were introduced into law with all party support and they now form a crucial part of any public body's make up. At [62] he carried on, noting that where large numbers of vulnerable people, very many of whom fall within one or more of the protected groups, the due regard necessary is very high. Therefore, despite there not having been any procedural errors with respect of the consultation exercise, a failure by London Councils to properly discharge the responsibilities arising from its PSED was held to be fatal to its final decision. Next, in February, the Secretary of State for Education had his decision to cut funding from the Building School s for the Future ( BSF ) quashed and sent back for proper consultation (R (on the application of Luton) v Secretary of State for Education [2011] EWHC 217 (Admin)). BSF had been launched in 2003 by the then Labour government as a 50bn programme of refurbishment for the 3,500 secondary schools in England. Given the capital spend envisaged by the project, it was one of the coalition s key targets for cuts following the 2010 general election. On 5 July 2010, it was announced that BSF would effectively be shut down, with a majority of schemes to cease and only those at an advanced stage to be allowed through to completion. The claimant local authorities challenged the decision to withdraw funding on the basis that (i) it breached their legitimate expectation (despite a change of government following the 2010 general election), (ii) had failed to pay due regard to the PSED, (iii) fettered the discretion under Section 14(1) Education Act 2002 by adopting a rules based approach, and (iv) had in any event been irrational. Whilst the arguments on fettering and procedural legitimate expectation were rejected, Holman J at [113] stated that I am simply not satisfied that any regard was had to the relevant [PSED] duties at all, let alone rigorous regard. Birmingham City Council has the dubious distinction of being subject to two unfavourable decisions. The first, in March, overturned its decision to cut funding to legal advice centres (R (on the application of Rahman) v Birmingham City Council [2011] EWHC 944 (Admin)), and then in May, the court held that it had acted unlawfully over plans to cut care for disabled people (R (on the application of W) v Birmingham City Council [2011] EWHC 1147 (Admin)). Again, both of these challenges were brought as a result of a failure to properly discharge the PSED duties. Significantly however, it was accepted by Walker J in W, that Birmingham s acknowledgment that its financial constraints had played a part in the proposal to cut adult social care, did not, in and of itself, breach the duty....and defeats The first major claim to fail at the permission stage to reach a substantive hearing, was brought by campaign group the Fawcett Society against the coalition s emergency Budget of June The claim was brought on the grounds that HM Treasury had failed to have proper regard to the gender equality duty in two ways. Firstly by failing to complete Gender Equality Impact Assessments in respect of key Budget measures, and secondly by failing to consider the differential impact between men and women of the Budget as a whole. The claim failed at its permission stage on 6 December 2010 in front of Ouseley J. He accepted the government s submissions that there had been a genuine need to place other considerations above those arising from gender equality. Further, he found that the Equality and Human Rights Commission ( EHRC ) provided an alternative forum for examination of governmental actions. Finally, Fawcett had not sought a quashing order against the Budget, so a declaration that it was unlawful, would be of solely academic value. The coalition has had successes in its programme of court closures. Three claims were brought against the proposed closure of the magistrates courts at Sittingbourne, Barry and Cardigan, on the grounds of failing to consult properly and failure to take into account relevant information. The claim in respect of Cardigan was refused at permission stage, but Sittingbourne (R (on the application of Robin Murray & Co) v Lord Chancellor [2011] EWHC 1528 (Admin)) and Barry (Vale of Glamorgan v Lord Chancellor [2011] EWHC 1532) were both considered at rolled-up hearings on 25 May and 8 June respectively. The Sittingbourne case was brought on the basis that the Lord Chancellor had failed to provide information about how criteria employed to assess the adequacy of court facilities would be weighed and he ought to have made available to consultees the local and national surveys that were taken into account. Further, the claimant argued that insufficient regard had been paid to the duty under s.49a of the Disability Discrimination Act 1995 (as amended). The Barry case however, was formulated in a slightly different way. The grounds in that case were focused on the consultative exercise, and argued that there had been a failure to consult as to alternative means of achieving efficiency savings and had failed to take into account relevant considerations in that Barry had been designated as a strategic regeneration area. Nonetheless, both claims ultimately failed on the grounds that proper regard had been given to all the necessary circumstances. The Sittingbourne and Barry cases stand as exemplars of excellent public decision making. Despite there being strong arguments to be made against the eventual outcome, the process was sufficiently rigorous to ensure that the court upheld the decision. Obstacles One of the major hurdles faced by a potential claimant, stems from the reluctance of the courts to engage with issues of macroeconomic policy and resource allocation. This was summed up by Lord Justice Laws, who wrote in 2005 that, it cannot in reality be doubted that in an area such as national economic policy the courts perception of what will count as good judicial review grounds is quite different from the approach taken in the recent authorities to the role of judges in cases touching fundamental or constitutional rights. Claimants are faced with another difficulty when it comes to the granting of appropriate relief. In all four of the successful cases, the court remitted the decision back to the original decision maker to be remade, subject to appropriate consultation or taking into account the relevant PSED. In the BSF case, Holman J warned at [126] that, provided [the Secretary of State] discharges that duty and his equality duties, the final decision on any given school or project still rests with him...no one should gain false hope from this decision. The future The early claims have focused heavily on failure to consult properly, especially where the decisions have been made on the back of emergency budget cuts, such as in BSF. Now that budgets have been set by central government, an optimist might hope that the reduction in time pressure will result in consultation being conducted in a more rigorous fashion, thereby narrowing the likelihood of a decision being open to challenge. Nonetheless, the unpopular decisions which have to be made will almost guarantee more challenges will be brought. Conclusion The courts have been vigilant in asserting the need for public bodies to take proper and reasoned decisions, despite the financial pressure. Public sector defendants should expect little sympathy where they have failed in ensuring to take both the letter and spirit of the law into account. As Blake J observed in Rahman at [46]: there is much to be said for the proposition that even in straightened times the need for clear, well informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater. Thom Dyke, Barrister, human rights and criminal law practitioner

7 the barrister , Article XXX of which provides: p.4 In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. Poor Relation Despite the Concordat negotiated with the Lord Chancellor, by himself, Lord Woolf, the then Chief Justice, was critical of the planned CRA, in particular in regard to the intended new Supreme Court: [T]hough called a Supreme Court, it will not, in fact, be a supreme court. Except in relation to Community Law and in respect of devolution issues, the new court will be subordinate to the will of Parliament as expressed in legislation Among the Supreme Courts of the world, our Supreme Court will, because of its more limited role, be a poor relation. 12 Lord Woolf s objection was essentially, therefore, that the UK s Supreme Court would not have the power to strike down legislation (other than in regard to EU law). But why should any court have this power? As long ago as 1765 Blackstone recognised the danger of going down that path: If Parliament will positively enact a thing to be done, the judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive of all government A Tale of Two Cities Strasbourg and Westminster, The Barrister, Hilary William Hague, Now you have power to veto EU changes in referendum, Daily Telegraph, 16 July Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle für Getreide und Futtermittel ( Solange I ) [1974] 2 CMLR 540 (German Federal Constitutional Court). 4 2 BvR 2236/04 (German Federal Constitutional Court) 5 Factortame Ltd. v. Secretary of State for Transport [1990] 2 AC 85 6 Factortame Ltd. v. Secretary of State for Transport, C-213/89 (ECJ) 7 Factortame Ltd. v. Secretary of State for Transport (No. 2) [1991] 1 AC M. v.home Office [1994] 1 AC M. v. Home Office [1992] QB 270, at Ibid., at For a lucid explanation of the concept of corporations sole it is still worth consulting Sir William Blackstone, Commentaries on the Laws of England, Book I, p. 457, First Edition, Squire Centenary Lecture, The Rule of Law and a Change in the Constitution, 3 March 2004, p Blackstone, Commentaries on the Laws of England, Introduction 3, p. 91, First Edition, 1765 Citroen Wells - Chartered Accountants First class service at affordable prices Expert accounting services for chambers and barristers At Citroen Wells we re all about taking the pressure off we believe in providing an unrivalled level of service. So whether you re a barrister or chambers we re here to help. Whatever the financial issue, Citroen Wells has the expertise in: Tax, PAYE and VAT investigations Accounts and tax return preparation Bookkeeping, VAT return and payroll services Constructive tax and financial planning Accountants reports for commercial litigation, investigations, asset tracing and insolvency CALL US NOW ON us using our dedicated Barrister and Chambers address: barristers@citroenwells.co.uk, visit or call Citroen Wells, Devonshire House, 1 Devonshire Street, London W1W 5DR Ask to speak to David Rodney or David Marks Registered to carry on audit work in the UK and regulated for a range of investment business activities in the UK by the Institute of Chartered Accountants in England and Wales.

8 08 the barrister may lie with the paucity of disposals p.1 available to sentencers that reflect the developing maturity and distinct needs of young adults. At present, the sentence of Detention in a Young Offender Institution, available for young adults aged 18-20, is the only significant custodial sentence designed for this age group and this is not without its faults 2. In the community, there exists the attendance order requirement, which can be imposed as part of a Community Order or Suspended Sentence Order, available for young adults up to the age of 25. Again, this is rarely used. Furthermore, sentencers regularly cite the lack of local provision to explain their limited use of the mental health treatment requirement and the alcohol treatment requirement, despite very high levels of need amongst the offender population, in particular young adult offenders. We know that where local sentencers have sufficient confidence in the community provision available they are more likely to make use of it, rather than hand down a custodial sentence 3. A number of pilot projects have begun to demonstrate the way to improve local disposals for young adults. Among these are three Transition to Adulthood Alliance pilots funded by the Barrow Cadbury Trust. These are testing new ways of working with young adult offenders in London, Birmingham and West Mercia and are having a direct impact on local sentencing practice. When a young man in Birmingham was told that a custodial sentence was inevitable, his involvement with T2A led to the judge suspending the sentence for 12 months to allow him to demonstrate his motivation to change his behaviour and work with the project. European norms and the German sentencing model Despite progress in recognising the issue of maturity across both sentencing and sanctions, we still have a long way to go. There remains a need for a more consistent approach if the offending of young adults is to be tackled effectively. A comprehensive sentencing framework, including a range of tailored disposals, would more adequately meet the recommendation of the Council of Europe and United Nations. The former, in its rules for the treatment of juvenile offenders recommends that young adult offenders between the ages of 18 and 21 years should, where appropriate, be regarded as juveniles and dealt with accordingly. This builds on the 2003 recommendation on new ways of dealing with juvenile delinquency which recommended that: Reflecting the extended transition to adulthood, it should be possible for young adults under the age of 21 to be treated in a way comparable to juveniles and to be subject to the same interventions, when the judge is of the opinion that they are not as mature and responsible for their actions as full adults. 4 A review of legal systems across Europe shows that there is widespread adoption of distinct approaches to young adults, with varying levels of integration into youth systems 5. In essence, we are out of step with international practices and norms in the way our criminal justice system deals with young adults 6. How can the justice system in England and Wales adopt what works best from European sentencing, whilst retaining its own identity and existing successful practice? The Transition to Adulthood (T2A) Alliance, a coalition of organisations that promotes more effective ways of working with young adults in the criminal justice system, has been most convinced by the model of sentencing of young adults in Germany, which allows sentencers a level of discretion in trying young adults up to the age of 21 under juvenile law. Under this system, all young adults aged are transferred to the jurisdiction of juvenile courts, and courts are given the option of sentencing according to the juvenile law or the adult law. Juvenile law is applied if a global examination of the offender s personality and of his social environment indicates that at the time of committing the crime the young adult in his moral and psychological development was like a juvenile. It is also applied if it appears that the motives behind and the circumstances surrounding the offence are those of a typical juvenile crime. This approach has been used successfully in Germany since 1953, and nearly two-thirds of young adults are sentenced as juveniles. For those who are dealt with in the adult system, lack of maturity is still seen as a mitigating factor 7. The T2A Alliance has recommended that this approach could be tested in England and Wales through a pilot, operating in two court areas. If the pilot proved to be successful, it could be rolled out initially to all year olds, which would affect approximately 10% of those sentenced by the courts in England and Wales each year. The potential to expand the system to all offenders aged could then be explored. To help develop the idea, the T2A Alliance has recently begun an extensive programme of work examining maturity. This includes looking at how to assess maturity based on the circumstances of the offence as well as on the individual offender s characteristics. The voice of practitioners Much of the success of German justice policy (where both imprisonment rates and reoffending rates are much lower) 8 can be attributed to the strong voice of practitioners in the public debate judges, barristers, probation officers and those with frontline experience making a powerful and credible argument for a system they know works. This is one of the key drivers for a focus on effective solutions and rehabilitation in countries like Germany, rather than a populist agenda holding sway. Is this the next necessary step for our justice system? Current high profile calls for the return of the death penalty and the understandably angry response to the riots mask the more considered approach taken by the public on matters of criminal justice when presented with evidence of impact. The British public are not as punitive as often thought. Indeed, public attitudes, often perceived to be an obstacle to progressive change, may not stand in the way of sentencing change. A ComRes poll earlier this year of 150 MPs and over 2,000 adults for the Transition to Adulthood Alliance found that almost seven out of 10 people agree that emotional and psychological maturity should be taken into account by the courts when dealing with a young person who breaks the law. MPs are even more supportive, with 81% agreeing. While there are calls for those involved in the recent disturbances to face harsh penalties,

9 the barrister 09 underlying moves towards a system that is more effective in its dealings with young people should not be derailed. In facilitating change, the voice of credible academics and those practitioners working on the frontline is needed, to shape public debate with informed and respected opinion. Perhaps for too long we have allowed politicians, the press and those with the loudest voices to frame the terms of the debate. The work of the Criminal Justice Alliance and others can facilitate a shared and strengthened voice by bringing together researchers, charities and professional organisations working in criminal justice. The upcoming launch of a Centre for Justice Innovation in association with the Young Foundation will also be of huge value to the sector in establishing demonstration pilots and promoting innovation 9. Removing the heat from the debate by giving credible practitioners a platform is an essential next step to ensure our criminal justice system deals with offenders in a fair and effective way. Vicki Helyar-Cardwell Director of the Criminal Justice Alliance The Criminal Justice Alliance is a coalition of 58 organisations - including campaigning charities, voluntary sector service providers, research institutions, staff associations and trade unions involved in policy and practice across the criminal justice system. We are a member of the T2A Alliance. For more details, see A short thematic report: publications/inspectorate-reports/ hmipris/young_adult_male_ prisoners-rps.pdf 3 Criminal Justice Alliance (2011) Sentencing Young Adults: Getting it Right. 4 p.3: Council of Europe Committee of Ministers (2003) Recommendation 20 of the Committee of Ministers to member States concerning new ways of dealing with juvenile delinquency and the role of juvenile justice. 5 See Dr Ineke Pruin (2011) Presentation at T2A Alliance National Conference: com/ Allen, R. (2009) Young Adults and the Criminal Justice System: International Norms and Practices. 7 Dünkel, F. (2006) Juvenile Justice in Germany: Between Welfare and Justice, in Junger-Tas, J. and Decker, S. H. (Eds.) International Handbook of Juvenile Justice, Berlin: Springer, p British Journal of Criminology, Vol 30. Spring 1990, Decarceration in West Germany, Muncie, J. Youth and Crime, 2009, Chapter 10, Comparative and International Youth Justice. 9 org/files/images/cji_briefing March_2010_.pdf Moorfields Private clearly the only choice for vision Moorfields Private is the exclusive division of Moorfields Eye Hospital. A world-leader in specialist eye care, Moorfields Private is the reassuring choice for people who want the best possible treatment and exemplary personal care. From the first appointment to after-care following surgery, our patients are treated by a dedicated consultant who understands their specific condition, circumstances and requirements. Every operation at Moorfields Private is undertaken by a consultant and each is a specialist in their specific field. Our pioneering team delivers visionary eye-care for a wide range of conditions including cataracts, glaucoma, macular degeneration, pars plana vitrectomy, presbyopia and laser eye surgery. Our teams are located at convenient central London locations in City Road and Upper Wimpole Street. 1 Sentencing Council (2011) Assault: Definitive Guideline, London: Sentencing Council. 2 H M Inspectorate of Prisons (2006) Young adult male prisoners: Moorfields Private your vision is our focus Call or visit

10 10 the barrister A time for change? The Legal Education and Training Review By Deveral Capps, Northumbria University BPTC Providers Representative on the Legal Education and Training Review s Steering Panel When creating the Legal Services Board ( LSB ), the Legal Services Act 2007 also laid down its main objectives. One of these specifically requires the Board to encourage an independent, strong, diverse and effective legal profession - section 1(f). In November 2010, the Chair of the Legal Services Board, David Edmonds delivered the Lord Upjohn Lecture 2. During this lecture he said the legal services market in England and Wales is in a state of transition or rather, one of rapid evolution and with the imminent arrival of alternative business structures this is certainly true. He also announced that the Bar Standards Board ( BSB ), the Solicitors Regulation Authority ( SRA ) and the Institute of Legal Executives ( ILEX ) would be joining together to review legal education in England and Wales. Originally called Review 2020, the Legal Education and Training Review is now affectionately known as LETR. Over the years there have been numerous reviews of legal education and its regulation. The most significant of these was the Ormrod review in This took over 3 years to complete and provided 250 pages of comment, analysis and recommendations. Whilst not all of these recommendations were introduced, it is certainly fair to state that the educational system we now have for lawyers finds its roots in Ormrod. In 1979 we had the Royal Commission on Legal Services, known as the Benson report, which eventually led to the Courts and Legal Services Act David Clementi chaired a review and reported on the regulation of legal services in 2004, the results of which, inter alia, are the Courts and Legal Services Act 2007, alternative business structures and multi-disciplinary partnerships. The above reviews, all looked across the legal profession and if they weren t directly concerned with legal education certainly touched upon it. Running alongside these major reviews, we also have the individual regulators examining their own particular training needs. For example in 2008 and tasked by the BSB, Derek Wood QC reported on training for the Bar 2, a report that led to the revamping of the Bar Vocational Course and its metamorphosis into the Bar Professional Training Course ( BPTC ). The first cohort of BPTC students were called to the Bar in July For those who wish to qualify as a solicitor they must now undertake the third incarnation of the Legal Practice Course, i.e. LPC 3. LETR is though, without doubt, the most significant review of legal education for 40 years (since Ormrod) and as we prepare for alternative business structures it is important to ensure that the lawyers who will be delivering legal services in the future are appropriately trained and prepared. Managing the whole review is a Research Executive made up of the senior management teams of the Bar Standards Board ( BSB ), the Solicitors Regulation Authority ( SRA ) and the Institute of Legal Executives ( ILEX ). The actual review itself though will be carried out by a Research Group led by Professor Julian Webb of the University of Warwick and a core group of legal educationalists from institutions around the country: Professor Paul Maharg of Northumbria University; Jane Ching of Nottingham Trent University; and Professor Avrom Sherr from the Institute of Advanced Legal Studies. Dr Chris Decker, Rob Wilson and also Professor Richard Susskind will support the group. The research group will also be supported by a Consultation Steering Panel chaired by Dame Janet Gaymer and Sir Mark Potter - former Lord Justice of Appeal and Head of the Family Division. The Steering Panel, which is scheduled to meet 6 times before December 2012, comprises legal practitioners (barristers, solicitors and legal executives), legal academics, students, young lawyers and consumers. In addition there are also representatives from the General Medical Council and the Architects Registration Board. Of the 29 places available on the panel, not counting the joint chairs, the Bar has 6 - with representatives from the BSB, the BSBs Education and Training Committee, The Bar Council, BPTC providers, the Employed Bar and the Young Bar. A full cast list of steering panel members can be found at sra.org.uk/sra/news/letr-panel-appointment. page. This panel exists to offer advice to the research group where required and thereby support the interests of those they represent. The research group have identified that their work will be divided into 4 phases. The first phase is a literature review of all writing on professional legal education worldwide - it is envisaged that this review will later be placed freely in the public domain. Phase 2 will map the current position for legal education and training and current trends. Phase 3 will look at workforce development and the whole process will conclude with phase 4 with the full report that is due to be published in December During the first meeting of the steering panel, the research group identified a number of questions that will help frame their work. These are: What are the skills/knowledge and experience currently required by the sector and what will be required by 2020? What kind of education and training systems will deliver the regulatory objectives of the Legal Services Act and promote flexibility, social mobility and diversity? What will be required to ensure the responsiveness of education and training systems to emerging needs? What scope is there to move towards sectorwide outcomes/activity-based regulation? Is there a need for the regulation of currently non-regulated groups? At this very early stage, it is almost impossible to foresee any recommendations that could be made. However, potential areas for change are the qualifying law degree, vocational courses, continuing professional development and lawyer regulation. What could the review determine about each of these? The core law subjects that make up a qualifying law degree ( QLD ) contract, tort, land, equity and trusts, crime, public and EU law may benefit from refreshment. One question that could be asked of the review is are there now other subjects that should be considered to be at the core of legal practice? Is, for example, there a need for legal skills or management to be mandatory at undergraduate level? Or should advocacy be considered a core? In the Upjohn lecture previously referred, Mr. Edmonds suggested that professional ethics should be taught to

11 the barrister 11 lawyers far earlier in their training. Will ethics therefore find its way into a QLD? Clinical legal education, experiential learning and problem-based learning are certainly innovative and effective methods of legal learning. However, with the advent of full-cost tuition fees, will school leavers look for other ways to take the first steps towards their legal career? With alternative business structures, the globalization of legal services and expected outsourcing of some legal services to India and China, the demand for paralegals is anticipated to rise significantly. Should there be greater opportunity for people to qualify as lawyers via different routes? Certainly ILEX has long been offering work-based routes to full qualification, will this now become more popular. Also, should there be professional recognition of a paralegal? When it comes to vocational qualifications, whilst there are differences between the various syllabuses and required depth of knowledge, there are a number of similarities between the LPC (the vocational course for solicitors) and the BPTC (the vocational course for barristers). Could a common vocational programme of training replace the LPC and BPTC? Further, could LETR call for a single fused profession? Or, should it recommend a system of legal training similar to the Scotland where all lawyers train as solicitors and then progress to be advocates? Continuing professional development will almost certainly fall within LETRs spotlight. With the increase in consumerism, it is surely only right that the people who deliver legal services to the public are best placed, best qualified and up-to-date. LETR will focus firmly on the regulation of lawyers. The LSB currently has the role of supervising 8 legal regulators 3. The current Chair of the SRA, Charles Plant, has already made his position quite clear in that he considers that there should only be one regulator for lawyers. He considers that this would save a huge amount administrative expense through economies of scale and undue repetition of work. A single regulator may more easily allow movement between solicitors and barristers. However, is this a positive? As has already been stated, it is far too early to determine what will be concluded and what recommended. Of the review the BSB stated, We are pleased that the Review is now progressing. We hope that the research builds upon our previous evaluations of the Bar Professional Training Course and Pupillage and our current work on the Continuing Professional Development requirements for barristers. The collaborative approach to this review will ensure a positive future for the legal profession. LETR clearly represents a very important opportunity to alter the current legal education regime and ensure that we, in the UK, continue to have a large quantity of the most highly trained and admired lawyers in the world. Currently in its formative stages, it is not yet possible for the profession or the public to make comment upon the review, though this is something planned for later in Until then, for those who wish to be updated more readily, a free subscription to the SRA s News RSS feed (the SRA are providing the administrative support for LETR) will provide updates as they become available ( org.uk/news_publications/speeches_ presentations/2010/de_lord_upjohn_lec.pdf 2 news/latest/220.html 3 we_help/approved_regulators/index.htm STEP Certificate in Trust Disputes Trust disputes anticipating and avoiding the pitfalls Add value to your business with this professional qualification A practical course which aims to give you an understanding of how to anticipate, and therefore avoid, the common pitfalls which can lead to trust litigation and arm you with litigation nous. Top 4 reasons to study for this Certificate: 1. Provides an A to Z coverage of trust disputes. 2. Helps you to future-proof trusts against litigation. 3. Provides you with a practical overview of the themes commonly encountered in trust disputes and an understanding of the overarching principles. 4. Helps you to identify the potential risks involved in the creation and administration of trusts and how to manage those risks. Completion of the Certificate enables you to meet your full annual STEP and SRA CPD requirement. Course content written by Toby Graham TEP. View the syllabus at or A qualification for practitioners worldwide

12 12 the barrister Where Now For Testamentary Freedom? This is the question posed by Mr. James Aspden in his article in The Barrister edition #49. Mr. Aspden acted as solicitor for the Defendant charities in the recent decision of the Court of Appeal in Ilott -v- Mitson [2011] EWCA Civ 346, [2011] 2 FCR 1. As Counsel on the other side it is perhaps inevitable that I find myself on the opposite side of the argument. By John M Collins, Barrister, Zenith Chambers Mr. Aspden lays great emphasis on testamentary freedom for those who make their wills. As he correctly points out, the law up to around a hundred years ago was clearly as stated by Sir James Hannen P. in Boughton -v- Knight (1873) LR 3 P&D 64: "By the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued." Although that was the law, it caused great indignation. The regular figure in Victorian melodrama was the irrational father who cut off his wife and only son with a shilling. But, as so often happens, concrete ideas for reform came from the British Commonwealth. In 1900 the New Zealand Parliament passed the Family Protection Act, which enabled the Courts to overturn wills so far as was necessary to provide for the proper maintenance and support of spouses and children. Over the next twenty or so years this was followed in turn by every state in Australia. This in turn led to the Inheritance (Family Provision) Act This Act aroused the ire of the traditionalists because, as Halsbury s Statutes put it then, it "marked a notable departure from one of the most cherished principles of English law by enabling the Court to make provision for maintenance of the dependants of a testator out of his estate in defiance of his will". Under the 1938 Act, the powers of the Court, and indeed the persons for whom the Court could make provision, were both sharply limited. Both by the Inheritance (Provision for Family and Dependants) Act 1975 and by the amendments which have been successively enacted to that Act, the Courts have been given jurisdiction to make orders in favour not simply of widows and young children, but also of adult children, dependants, cohabitees and now civil partners. Of course, the Act made a careful distinction between the position of spouses of the deceased (now extended to civil partners) and all other persons who were or might claim to be within the categories of persons provided for by the Act. The spouses of the deceased can claim "such financial provision as it would be reasonable in all the circumstances of a case for a husband or wife to receive, whether or not that provision is required for his or her maintenance". Accordingly, the widow or widower or civil partner can ask the Court to determine what would be reasonable and proper provision for him or her to receive. So far as the deceased's children are concerned, their claim is only for "such financial provision as it would be reasonable in all the circumstances of the case the applicant to receive for his or her maintenance". So if all the children and other dependants of the deceased are already well provided for, the Court has no power to make any additional provision under the 1975 Act. It is only when the child or other person is in need of maintenance, using that word in the widest sense, that the Court has power to intervene. In those circumstances, it may be thought that Mr. Aspden is perhaps exaggerating the problem when he suggests that "Many are wondering whether it is worth bothering to make a will at all, if it can be overturned after your death by a Judge who does not agree with the choices you have made or who does not share your view that your children can be expected to fend for themselves once they reach adulthood, if they are not mentally or physically incapable of finding work". There are circumstances and Ilott -v- Mitson was one where it could fairly be said, and the Courts have determined, that Mrs. Ilott's straitened circumstances were such that in all the circumstances it was unreasonable that no provision was made for her maintenance. The circumstances of the case were undoubtedly unusual. Heather Ilott was the only child of Melita Jackson. In 1978, at the

13 the barrister 13 age of 17, she fell in love with Nick Ilott. Mrs. Jackson considered that Nick would not make much of his life and strongly disapproved and sought to break off the association. So Heather eloped with Nick and they were later married. This led to a lifelong separation between mother and daughter. There were attempts at reconciliation. In relation to their failure, there were faults on both sides. The last attempt, in 2000, involved Heather Ilott first apologising orally to her mother and then at her mother's request submitting a written apology for approval by her mother's solicitor. That reconciliation was short-lived, because Mrs. Jackson took umbrage because Heather had named her youngest child after the child's great-grandmother, Mrs. Jackson's mother-in-law. So she refused to have anything more to do with her daughter or her grandchildren and would not even allow her grandson in her house. As Mr. Aspden says, Melita Jackson made her will in 2003, leaving her most of her estate to three charities and nothing at all to her daughter or grandchildren. She set out in a written statement and in a letter to her daughter why she was making no provision. Had that statement and the letter been a truthful and accurate account of her reasons, no doubt it would have carried great weight with the Court. But the district judge found that it was not accurate or truthful. Furthermore, she gave no explanation of why she chose the three charities, since she had shown no interest in any of them or their causes during her life. So the position was that there appeared to be no rational purpose in Melita's bequests and the only inference could fairly be that she had made them out of spite. That, however, would not have been sufficient to enable Heather Ilott to succeed. But the district judge looked at all the circumstances. He found that because of a back problem her husband was not able to work regularly. She had five children. They lived in a rented home in Great Munden, which, despite its name, has fewer than a hundred inhabitants, in a fairly isolated part of Hertfordshire. She was not in paid employment. There was no bus service to the nearest town and she did not drive. The family had to live on a mixture of Mr. Ilott's earnings and Social Security benefits. The district judge came to the conclusion that not only was the failure by Melita Jackson to make any provision for her daughter unreasonable, but in the particular circumstances she did need provision for her maintenance. It is therefore not a case where judges were simply being asked to re-distribute estates because they thought that the deceased made the wrong choice. It was where a situation arose that the deceased had failed to make provision that after investigating the whole circumstances the Court came to the conclusion ought to have been made. There may well be cases where, even when a child is or can claim to be in need of further financial provision, a testator would be held to be justified in not making that provision because in all the circumstances the proper approach is that the child should make greater efforts or indeed that there is someone else who would benefit from the estate whose need is equal to or greater than that of the child. That was the position in the leading case of Re Coventry [1980] 1 Ch On the other hand, if there is no other claim upon a parent's generosity, surely any rational parent would say "Let bygones be bygones, I must make at least a reasonable provision for my child". We have surely moved at least a little way from the harsh and unreasonable approach summarised in Boughton -v- Knight. JOHN M. COLLINS Zenith Chambers 10 Park Square Leeds LS1 2LH 3rd June 2011

14 14 the barrister Appealing School Exclusion the hard sell For a child, permanent exclusion is perhaps the most severe punishment they could face without becoming engaged with the criminal justice system By Adam Porte, Co-Director, School Exclusions Project In the aftermath of the riots and looting that spread across the country in August, many politicians and commentators cited a breakdown in discipline at school as a major contributory factor. A child needs structure, must understand that actions have consequences and ought to learn to respect authority. As a teacher for 4 years I know from experience that there is little more frustrating than a student constantly questioning a punishment imposed for a breach of the school s behaviour policy. As a result, a child s right to appeal against a sanction imposed upon them by their school suffers from being something of a hard sell. The very notion of questioning the actions of a school smacks of an erosion of respect for hard-working teachers and carers. The Education Bill 2010, currently before the House of Lords, purports to solve the issue of ill-discipline in school by giving further powers to teachers and heads. Amongst the amendments to existing legislation is a fundamental alteration to a child s parents ability to appeal against the child s permanent exclusion from school. No discussion of a sanction as severe as permanent exclusion can be based on the premise that any school is infallible and immune from mistakes. The right to appeal a permanent exclusion is not something designed to undermine head teachers nor is it one that encourages our young people to rail against any punishment imposed by teachers. Instead, it is an admission of the magnitude of the sanction, that it has been imposed as a matter of last resort, and that society must be satisfied that the right decision has been made. Unfortunately, the suggested changes to the appeals process are unnecessary, unfair and likely to create a significant amount of costly and timeconsuming litigation. I am currently the co-director of the School Exclusions Project, alongside fellow BPP student, Natasha Silverman. The group was founded as a BPP Law School probono project in 2009 by directors Zach Esdaile and Natasha Silverman, working with Stephen Broach, a barrister at Doughty Street Chambers who continues to chair the Project. The Project operates in a way that will be familiar to many barristers who have experience with the Free Representation Unit. Every academic year the Project recruits around 30 BPP students to act as representatives and advocates for excluded children at Governors hearings and the current Independent Appeal Panel hearings (the Panels which will lose powers to order reinstatement of excluded children if the present Bill is enacted). Barristers at Doughty Street give up their time and work with Project directors to provide thorough training and assistance to volunteer representatives. These student volunteers have complete responsibility for their client s case, from organising a convenient date for any hearing, drafting submissions and preparing bundles, to presenting their case and cross-examining at the appeals. The importance of the work carried out by the School Exclusions Project is best demonstrated by testimony from some of its volunteers. Co-Director Natasha Silverman explains a recent case of hers: I recently represented an 11 year old boy who had been permanently excluded from school for allegedly carrying out a serious sexual assault. The school s decision to exclude was largely based upon the witness statements of two girls who reported the incident several days after it supposedly took place, at which point they were allowed to confer whilst giving their statements. The excluded child was given no opportunity to provide a written statement explaining what, if anything had happened. At the IAP hearing, we were able to rely on evidence following a full medical examination, the results of which led the doctor to conclude that the boy s physical stage of development rendered him unable to have carried out the sexual act he allegedly committed, information that the school had failed to consider when making their decision. Without the existence of IAPs armed with the power to overturn exclusion and reinstate, the child and his family would have had no other accessible vehicle for challenging the decision of the school, nor would they have achieved the fair hearing and ultimately the justice they deserved. If the Education Bill passes into law, children would be the only section of society deemed unworthy of receiving a fair hearing before being punished for an offence. Volunteer Sophie Conway recently represented a young child who had been unlawfully excluded from their Primary School: The role of an appeal is not to undermine the authority of head teachers and schools. Nonetheless, it is important to bear in mind that sometimes head teachers and schools get it wrong, and my last case was a clear example of this. The case involved representing the parent of a 5 year old child who had been permanently excluded from his primary school and sent to a Pupil Referral Unit some distance from his home and friends. The facts of the case and details of the exclusion worked in our

15 the barrister 15 favour demonstrating that the head teacher s decision to permanently exclude had been unlawful. That is not to say that this case was easy to win, indeed, we lost at the Governors hearing. We eventually managed to get the permanent exclusion overturned and removed from the pupils file at the IAP stage. Since its inception the Project has provided trained representatives for dozens of cases where parents and children would otherwise have been left to fight an appeal with no understanding or expertise in the law that governs exclusion or the procedure for these hearings. The success of the Project has led not only to its expansion, but also the creation of similar pro-bono groups at other law schools across the country. The Project is particularly important because legal aid is not available to secure representation in exclusions hearings only for judicial review challenges when an exclusion is upheld on appeal, when the bar is of course set very much higher. For a child, permanent exclusion is perhaps the most severe punishment they could face without becoming engaged with the criminal justice system. It is a sanction so potentially devastating that it is rightly characterised by the statutory guidance as a matter of last resort when all other options have failed or are inappropriate. The scale of the sanction is such that the law has in place checks and balances to ensure that the decision to exclude permanently was lawful and correct. Initially an exclusion must be put before a panel of school Governors, and should they uphold the exclusion, parents and children may then appeal to an Independent Appeal Panel (IAP). The IAPs hear the appeal of the excluded child and the case for the exclusion by the school and currently have the power (as expressed in statutory guidance issued in 2008) to uphold the exclusion, overturn the exclusion and order the child be reinstated to the school or overturn the exclusion without ordering reinstatement (this last option only to be exercised in exceptional circumstances). The presumption under the guidance therefore is that if a child is wrongly excluded from school, he or she should be reinstated a presumption consistent with the common law expectation that if an act is unlawful the law should return the position to the status quo ante. In 2009/2010 5,740 children were permanently excluded from school. Of the 5,740 exclusions 1, only 510 ever lodged an appeal, of which 470 were actually heard. Thus of all students excluded, only 8.2% ever had an appeal against their exclusion heard a statistic which points to how daunting the prospect of appealing an exclusion is for very many children and families. 24% of all appeals in 2009/2010 found in favour of the child, and of the successful appeals, 26.8% ordered that the child be reinstated this despite the presumption in favour of reinstatement under the current statutory guidance. In real terms 26.8% translates to 30 students who were reinstated to school after a permanent exclusion in 2009/2010. That amounts to 0.52% of all permanent exclusions for last year. Statistics demonstrating that over 90% of excluded children never had that exclusion tested by a fair and independent body are potentially troubling. My own experience as a teacher taught me that disciplinary matters are an inexact science, and that no school is infallible when it comes to imposing sanctions against their students. The statistics that explain what type of student is excluded, and the offence for which the sanction has been imposed are even more concerning. In 2009/ % of children that were permanently excluded were boys, and over half of all exclusion occurred at age 13-14, the year prior to students commencing their studies for GCSEs. Students of Black Caribbean origin are 4 times more likely to be excluded than their white peers. The statutory guidance that governs the exclusion of children states at paragraph 64: Other than in the most exceptional circumstances, schools should avoid permanently excluding pupils with statements. Yet despite this guidance, exclusion statistics show that students with a statement of special educational needs are 8 times more likely to be permanently excluded than other children. Students eligible for free school meals are 4 times more likely to be permanently excluded than their peers. The most common reason for permanent exclusion (29% of the total) was persistent disruptive behaviour. What is clear from the statistics is that permanent exclusion disproportionately affects ethnic minorities, students with special educational needs and those from the poorest backgrounds. The Coalition s case for a change in the law governing school exclusions is clear and unequivocal; the right to appeal exclusions to a Panel which can order reinstatement undermines the authority of the school and its staff. Before becoming Prime Minister David Cameron said: The problem doesn't lie with teachers - it lies with the rules and regulations which stop teachers imposing proper discipline. In support of his party leader, the now Secretary of State for Education, Michael Gove stated: At the moment teachers are, in many circumstances, not excluding pupils who should be excluded because they fear precisely that their decisions will be overturned on appeal. A quarter of exclusions are overturned and then half of those pupils go straight back into schools where they've been responsible for all sorts of behaviour The whole system is configured in order to ensure that head teachers feel there's a strong disincentive to exclude. It is important to note at this stage, that Mr Gove has confused the statistics for exclusion and reinstatement. Mr Gove made this statement in the spring of 2008, and as such would have been using the statistics for Without descending into further number crunching the figures show that

16 16 the barrister 2.76% of exclusion were overturned, not the 25% suggested by Mr Gove, and only 1.15% of all exclusions resulted in reinstatement for the child. The net result of Conservative pre-election policy is an Education Bill which is likely to be granted Royal Assent later this year. The relevant provision is clause 4 of the Bill which will amend section 52 of the Education Act As a result of the change the IAP will cease to exist, and will instead be replaced by a review panel, the constitution of which is as yet unknown. A review panel will have the power only to uphold the exclusion, recommend that the school reconsider the exclusion or quash the decision and direct the school to reconsider its decision. Removing the power of the panel to reinstate essentially neuters it as a body that checks the validity of exclusions. Whilst decisions of the present IAP can potentially be judicially reviewed, in the vast majority of cases the IAP s decision is accepted as the final step in any appeal. The new review panel s lack of the practical power to order reinstatement is likely to lead to significant litigation as parents and children seek a fair trial. If parents and children believe that the review panel system does not offer them access to justice they will seek it through judicial review, a far more expensive and time-consuming process than the current IAP procedure. Additionally, such legal challenges could add further distress to the child at the centre of the dispute. Stephen Broach, who chairs the School Exclusions Project and acts for many families challenging school exclusion decisions, predicts that the removal of reinstatement powers from review panels will lead to an increase in applications for judicial review: 'In urgent cases where a parent is seeking reinstatement for their child it will be arguable that the panel does not constitute an effective alternative remedy and as such the High Court could be invited to consider the lawfulness of the exclusion and quash the decision if unlawful, which would normally lead to reinstatement. It would be ironic but not surprising if the government's attempts to reduce the rights of excluded children actually led to increased litigation and cost in this highly contentious area.' Permanent exclusion from school is a severe, damaging and potentially life-changing sanction that is rightly treated as an act of last resort by schools. In any other environment the very suggestion that a child s right to appeal such a sanction should be fettered would be rightly met with scorn. A criminal justice system based on the assumption that the state always made the right decision, and that any appeal was an affront to that system would be unthinkable. Yet for many young people, permanent exclusion is a far harsher punishment than could be imposed by a youth court for conviction for petty crime. Misrepresented statistics and stories of children excluded for knife crime being reinstated must not be allowed to cloud the debate. That of the small number of exclusions that were appealed, just under a quarter were overturned demonstrates that schools and heads are not infallible but it does not demonstrate that the present IAP is generally riding roughshod over the judgment of head teachers. It must be recalled that the odds of an exclusion being appealed and subsequently resulting in a managed move or reinstatement are very long; most exclusions are never appealed, and of those that are the majority fail. To further reduce the ability of any child to have their exclusion tested by an independent panel with the power to reinstate creates a system that is unjust, unfair and counter-productive. Fighting for a child s right to appeal exclusion may be a hard sell but it is one that is imperative. All readers of this article are urged to contact their MPs and seek to persuade them that the proposal to neuter IAPs contained in clause 4 of the present Education Bill should be withdrawn. Adam Porte Co-Director, School Exclusions Project 1 Does not include academies

17 the barrister 17 Located in the heart of the city, we offer boys an outward-looking, forward-thinking education that prepares them for life. Academic, Music and Sport scholarships are available at 11+, 13+ and 16+. Please contact the school for further information or to book a place at an Open Afternoon admissions@clsb.org.uk TAX RETURNS & ACCOUNTS FOR BARRISTERS Fixed fees Meetings in Chambers Timely service Monthly newsletter Moorfields Private clearly the only choice for vision Moorfields Private is the exclusive division of Moorfields Eye Hospital. A world-leader in specialist eye care, Moorfields Private is the reassuring choice for people who want the best possible treatment and exemplary personal care. From the first appointment to after-care following surgery, our patients are treated by a dedicated consultant who understands their specific condition, circumstances and requirements. Every operation at Moorfields Private is undertaken by a consultant and each is a specialist in their specific field. Our pioneering team delivers visionary eye-care for a wide range of conditions including cataracts, glaucoma, macular degeneration, pars plana vitrectomy, presbyopia and laser eye surgery. Our teams are located at convenient central London locations in City Road and Upper Wimpole Street. Call Martyn Bradish for a free, no obligation meeting Visit the barristers & judges page in the services section of our website at Moorfields Private your vision is our focus 31 Dugdale Hill Lane, Potters Bar, Herts EN6 2DP T: mail@bradish.co.uk Call or visit

18 18 the barrister What should we do with all the Young Lawyers? Adam Chaffer, a MLaw (BPTC Exempting) student responds to Gerard McDermott QC and Leolin Price CBE QC articles which appeared in the previous two editions of The Barrister. The vocational training to become a barrister is not unlike a mountain climber attempting his first climb. He like a future barrister starts at the bottom and looks up; often in awe at what is in front of him. The climber starts the climb slowly, the law student at this stage will be working through his examinations at university and the bar school. At the halfway stage the climber and the bar student can nearly see the top. However the mountain at this stage becomes much more challenging with thinner air and a more perilous climb. The same can be said for the climb to pupillage for while there are opportunities for pupillage the numbers are small compared to the volume of applicants. On pushes the climber and the bar student; if they are lucky they will reach the summit. For the climber it is the just reward of having conquered the mountain while for the pupil barrister it is the reward of being made a tenant in chambers and been able to practice the vocation which they have so patiently waited for. Speaking as a student on the BPTC Exempting Degree (the integrated Masters in Law and Bar Professional Training Course Degree at Northumbria University) and therefore hopefully at the very start of my professional career; it is refreshing to see that there is genuine concern in the profession as to what should be done with all the young lawyers. Having read the articles of Mr McDermott and Mr Price it is evident that there are some excellent ideas within the profession of how to deal with the current pupillage situation. It is entirely justifiable for Mr Price to describe the situation as, unfair, unmanageable and disgraceful I would tentatively agree with his analysis of the current circumstances. While Mr McDermott s idea of utilising bar school graduates as legal assistants is a fine and noble concept, it runs the risk of creating a pseudo profession for graduates. The work of these legal assistants can easily be conducted by pupil barristers. This makes me more inclined to support the ideas set down by Mr Price. The scheme to have a professional obligation that every junior counsel of five years standing should have at least one pupil at any time would greatly increase the practice at the bar and at the same time remedy the current pupillage situation. This idea could be coupled with various measures to further enhance the quality of the future barristers. Such measures could include; advocacy master classes, judicial marshalling and short term placement in solicitors firms. This enrichment will provide bar gradates with a more rounded view of the profession as they undertake pupillage. Furthermore pupils should be actively encouraged to either set up or join local community legal clinics or advice centres; to provide free legal advice to the general public. The model example of this can be seen at Northumbria University where the Student Law Office allows third and fourth students enrolled on the LLB Solicitor Exempting Degree to conduct case work for the general public. Although I have not had the opportunity to experience this I have heard nothing but good reviews for the work which is conducted in the office. These advice centres run by pupil barristers will have the added benefit of improving the public perception of the bar. These measures will allow the will allow pupil barristers to meet the requirements of pupillage but also allow junior counsel the flexibility of not been joined at the hip with their pupil. There are two further proposals which have the potential of improving the ideas of Mr Price. At present a graduate of bar school has five years to seek pupillage before he is effectively time barred. I propose in place of this allowing an unlimited extension period for applicants who are actively engaged in legal practice. By that I mean those who are working in some legal capacity such as legal advisors, case workers and paralegals. This unlimited extension would stop when the applicant is no longer actively engaged and would need to be coupled with the relevant requirements for Continued Professional Development and perhaps fresher workshops. The final suggestion is not a proposal rather a note of warning. While it is probable that in the coming years there will be a slight drop in the number of university applicants with the increasing tuition fees I doubt there will be such a drop of applicants at the BPTC providers. At the same time any attempt to limit the number of places on these courses

19 the barrister 19 must be met with a degree of caution. The proposed method by the Bar Standards Board for an aptitude test is intrinsically wrong. The test does not show whether a person will make a good barrister it merely shows that the applicant is good at answering multiple choice questions. A more appropriate system is to have interviews for bar school places chaired by a combination of staff at the BPTC providers and practicing barristers. This Engineering Expertise Forensic engineers Are you involved in a technical dispute? At Cadogans, we have the knowledge and experience to help you. Difficult and complex? It s what we re here for. would allow applicants to demonstrate skills which a multiple choice test would never demonstrate. Mr Price formed the view that the profession has sleepwalked into this present situation. But sleepwalkers will eventually wake up. Now seems to be an appropriate time for the Bar to do just that. I urge the readers of this article who are in a position to make a Any country Any discipline Any dispute resolution process difference to this situation to do so before it deteriorates even further. These changes can be done, they should be done and I trust and hope that those who can will ensure that they Patron: H.R.H. The Prince of Wales are done. Adam Chaffer 4th Year MLaw (BPTC Exempting) Student Northumbria University a helping hand for actors since 1882 The public s perception of the acting profession is that we are glamorous and well paid but the image of fame and fortune is not the reality for most of the profession and for some the show will not go on those actors and actresses who are suffering hardship because of illness, accident or old age. The fund was founded to provide financial support for such individuals. Please help them by making a donation or remembering the fund in your will. Thank you. Penelope Keith, C.B.E., DL President 6 Adam Street, London, WC2N 6AD Tel: Fax: office@abf.org.uk Registered Charity No

20 20 the barrister Procure Co: Have you got the time? How well placed are you to make your new venture a success? Helen Ford, Managing Director of Bar Squared the author of LEX Chambers Management, considers some of the requirements. You have woken to behold the inviting view of the new legal landscape. You are considering the creation of a ProcureCo. You are sold on the idea of wresting the control and distribution of work from solicitors currently pitted against you, and opening up fee negotiation opportunities. Having made the decision, how will the members of the ProcureCo avail themselves of the business intelligence that will be required to formulate a competitive tender for work? Need you do anything at all? You know roughly how much a case pays and how much you need to earn, so by covering enough cases the outlook is rosy isn t it? How many cases can you complete? At the very least, you will need to know how long it takes to undertake typical case work and then calculate an hourly rate that can be used as part of the tendering process. You could divide newly appointed panel members current fees by an arbitrary average hourly working week to come up with a work rate and hourly remuneration value? Is this really good enough? The resounding answer is no! If you can t calculate the average number of hours casework takes to complete, it is impossible to determine how many cases can realistically be completed within a contracted period. You may say that you will work as long as it takes but time is both limited and precious. You may, of course, decide to involve additional personnel to complete the work you have contracted to undertake if you have miscalculated the case load but each members income is then compromised to cover the payment of fees for the over estimation of capacity. Solicitor advantage The advantages that solicitor firms have over a Chambers led ProcureCo wishing to tender in competition are enormous. They have, of course, done it all before and are in possession of vital information to assist a successful bid. The fee earners in a solicitors firm are employed and required to comply with corporate dictates; one of which is the recording of time. In fact the working life of a solicitor revolves around recording all time expended (in 6 minute blocks) whether productive or not, using a corporate software application. This allows the firm access to valuable business intelligence that a ProcureCo can only dream of. Not only can the firm analyse the amount of time expended by each fee earner but it can also collate time spent by case and work type and calculate an accurate hourly rate based on PAYE and other corporate records held for all its employees; fee earners, administrative staff and partners alike. In the current typical Chambers business model, whilst time may be notionally recorded against particular items of work to the extent that a fee note is produced for payment by Solicitors, very few Chambers employ a recognised central time recording facility. If your ProcureCo is to be a joint venture with a firm or firms of solicitors, you may be afforded access to some of this vital information. i.e. the number of hours spent covering police station work, preparing bundles and other overheads that form part of the litigation process, but what if you want to go it alone? Threat or benefit? Some would argue that it is already a bit too late; that the recording of time contemporaneously should have been paramount for some time. In 2008 the Legal Services Commission (LSC) and the Crown Prosecution Service proposed changes that would enforce barrister time recording. The information was to be maintained in a readily auditable format to demonstrate proper stewardship of public funds. Seen by many as a threat, had these proposals been embraced, the information collated in the years that have passed would have been a valuable lever in negotiations with the LSC and now the Ministry of Justice as well as an asset in tendering processes, giving accurate and vital statistics with which to argue against reductions in fees and the unfair fat-cat perceptions that prevail. The holistic approach The key to assimilating this data is consistency. There are many and varied time recording systems in use that include spreadsheets, s, pieces of paper, notes scribbled as part of a telephone conversation as well as software solutions. Whilst these methods provide billing information and some reports on an individual barrister basis, what is required is analysis that includes groups of barristers covering different types of work. To work efficiently the ProcureCo needs to know how work rates vary amongst members and it is only by having a single

21 the barrister 21 time recording system that this can be easily and accurately determined. assisting accountants in complying with UITF40 requirements. Accountants are also in the business of providing services on a By recording time centrally, a valuable repository of data is built that has many benefits to the individual, their chambers time-recorded basis so reports that reduce the number of billable hours they take to prepare your tax should yield a reduction in and the ProcureCo. Utilising a case the fees charged. management system that has integrated time recording would therefore appear to be the way forward. In addition to individual benefits, reports may be run by clerks and chambers administrators to provide analysis by; Does time recording pay? Diary bookings and case information is already created and held within case management systems such LEX. Members may record their time against case records (that have been created by their clerk) to analyse each case according to set criteria; type of funding, type of case, origin, type of client etc. Remote access to the time recording system is essential to ensure recording of time immediately. It s all too easy to overlook a telephone conversation you may have had in the robing room prior to a hearing. The availability of remote time recording minimises lost time - that quick piece of advice that you gave over the telephone. You recall several days later spending 5 minutes on the telephone and don t bother billing for it. If you had been running a call timer that showed you had actually spent 25 minutes on the advice, would you be so willing to forget about it? That 25 minutes can be easily allocated to the relevant case and the time recorded, managed by the clerks for billing purposes, utilising notes created at the time, all of which reduces duplication of effort and eliminates inaccuracy as no re-keying is required. Taxation advantages Amongst the many benefits of utilising a central time recording system is access to reports analysing your own billable hours and fees earned. Calculation of work in progress at tax year end is aided thus teams of barristers, types of work, funding types etc. all of which add to the business intelligence that is required. Success or disaster? In conclusion, maintaining records of time taken to complete various types of work is a crucial tool in order that you tender effectively for work now and in future. If you are seriously considering tendering for work, you simply must start recording time expended as soon as possible using a central system. The benefits of doing so are clear, the consequences of inaction - a recipe for disaster. CHARTERED SURVEYORS COVERING KENT, LONDON AND THE SOUTH EAST We are a professional firm of general practice chartered surveyors, regulated by the RICS, based in Maidstone, Kent offering a comprehensive range of valuation and surveying services of primarily residential properties throughout London and the south east. We act, provide reports, and give evidence in Court as Expert Witnesses in compliance with Part 35 of the Civil Procedure Rules 1998 (CPR35) for: Litigation Disputes Negligence Inheritance tax Compulsory purchase and compensation Debt recovery Insolvency CRANBORNE ASSOCIATES CHARTERED SURVEYORS & VALUERS Barham Court, Teston, Maidstone, Kent ME18 5BZ T: E: info@cranborneassociates.com W:

22 news round up 22 the barrister European Commission supports CEDR programme to boost the standard of mediation in Europe The European Commission has agreed to support the Centre for Effective Dispute Resolution (CEDR) to run a mediation training project designed to help ensure a consistent high quality of standard in commercial mediation training provision across Europe, which is important given the new focus on using mediation to resolve business disputes in Europe as an alternative to costly litigation. The Mediator Skills Master Trainer Programme, which will run until spring 2012, will look at enhancing the ability and skill of mediation trainers in 10 different countries across the European Union. CEDR, known internationally for its leading mediation skills accreditation, was selected for funding by the European Commission to the deliver 10 three-day training sessions, where delegates of up to eight mediation trainers will received advanced skills trainings. To this end CEDR is considering all requests from local Alternative Dispute Resolution (ADR) organisations across selected EU member states or accession countries that wish to work with CEDR and benefit from having the locally qualified advanced trainers. This programme follows the implementation of the EU Directive on Cross-Border mediation in spring 2011 and seeks to complement and assist the on-going development of knowledge, uptake and use of mediation across Europe. As one of its charitable foundation activities, CEDR has created the ADR Trainers Network, a forum for sharing ideas about current mediation practice internationally, innovations in the field of ADR training delivery and developing practice standards for ADR trainers worldwide. CEDR hope that its new partners in Europe will join the regular exchanges about practices worldwide, to learn from each other and thereby fostering better and more consistent international training standards. James South, Director of Training at CEDR, said As mediation develops across the EU, it is crucial that the training of mediators is of the highest quality to ensure that those mediating commercial disputes do the very best job for disputants. With over 20 years of experience in training mediators we are delighted to be supported by the European Commission to help bring our knowledge and methodology to provide the most effective training for mediators in new jurisdictions. Organisations wishing to qualify for this programme, must be: from an EU member state or accession country focussed on commercial mediation and ADR active in training in ADR in their local jurisdiction able to offer support for the delivery of the training including, up to 8 ADR trainers as participants, logistical support, the training venue and refreshments, at no cost, to host the training which would require a plenary room big enough to host the full group and two trainers and one smaller room which can accommodate 6 persons. Those ADR organisations interested in taking up the free 3-day Train-the-Trainer course from CEDR should dkershen@cedr.com with a short background of your organisation and its activities. Note this project is limited to one organisation per country and is limited to 10 countries only. Law Society ramps up pressure on Government as legal aid cuts leave immigration clients stranded The Law Society is extremely concerned to hear of the closure of the Immigration Advisory Service which has gone into administration. This closure is another crushing blow for the provision of legally aided immigration advice which is already threatened by severe cuts arising from the Government's proposed reforms of legal aid funding. Operating a national network of 14 offices plus several outreach sessions the IAS is responsible for a significant proportion of both asylum and non-asylum immigration work in the UK. Employing more than 200 specialist staff, IAS handled some of the most complex immigration cases in the UK. Its closure will leave thousands of clients, many of whom are especially vulnerable, without access to their files, advice or representation. In many cases impending hearings before Immigration tribunals will be thrown into doubt. In the north of England the position will be particularly dire - IAS are responsible for 7,500 matter starts in Yorkshire alone. Whether other providers will be able to absorb such a large volume of cases is highly questionable. Commenting on the news that the Immigration Advisory Service (IAS) has gone into administration Law Society Chief Executive Desmond Hudson said: 'While Parliament debates further cuts in legal aid, the news of the collapse of IAS has left thousands of clients stranded. This is the true impact of funding cuts. 'The Government claims that not-for-profit organisations like IAS will fill the gaps in public service provision. The fact that this is the second such collapse in the sector in less than a year shows that these claims are little more than wishful thinking. Incoming Chair of the Criminal Bar Association: The Criminal Bar is Vital to Ensuring Justice Max Hill QC, began a year-long term as Chairman of the Criminal Bar Association, which represents criminal barristers in England and Wales, has sent a stark warning to the Government about the long-term effects of legal aid cuts. In a rallying call to criminal barristers, he has warned that if legal aid cuts cripple the criminal Bar, it will be almost impossible to restore. Max Hill QC, whose practice includes prosecuting high-profile terrorism trials from 18 Red Lion Court, said: Criminal barristers play a vital role, both prosecuting and representing people charged with criminal offences, in the public interest. We operate on the frontline to ensure that our justice system works efficiently, effectively and most importantly, fairly for all involved. It is a profession filled with committed, hardworking individuals, comprising dedicated public servants as well as entrepreneurial privately funded practitioners, who work for clients all over the world. Legal aid cuts and the new Quality Assurance Scheme for Advocates (QASA) represent the immediate landscape for my year as Chairman. Tough times are undoubtedly ahead for the criminal Bar. But rather than allowing these issues to divide and depress us all, my mission must be to raise our chins from the floor. I have one key message for anyone who will listen: you can destroy the publicly funded Bar if you want, but you will want it back when it is too late to recover what you have lost. Frankly, it is puerile to dismiss our arguments as little more than financial self-interest, when the criminal Bar has for decades proven that it is efficient and exceptionally hard-working. We have nothing to fear from quality assessment; day-in, day-out criminal barristers across England and Wales provide consistently excellent advocacy. We are a profession with much to be proud of and everything to fight for. I will not shy away from the challenges which lie ahead.

23 the barrister 23 news round up Community sentences' role in containing prison growth questioned by new report As the population in custody in England and Wales hits a record high (1), a new report from the Centre for Crime and Justice studies (2) questions the role of community sentences in controlling or reducing prison numbers. Community sentences: a solution to penal excess? (3) argues that there are inherent limits to what community sentences can achieve beyond relatively minor adjustments to the numbers in custody. The long-term trend in prison numbers has been upwards since the 1940s, with growth accelerating markedly in the 1990s. Successive governments over a number of years have sought to manage prison numbers through the reform and promotion of community sentences. In practice, community sentences have failed to act as a like-for-like replacement for short term prison sentences. The report also finds that the emphasis on tougher community sentences may have contributed to sentencing inflation, with less serious offences being subject to higher tariff sentences compared with a decade ago. The report follows the publication of an inquiry by the Justice Select Committee, which warned of the risk that community sentences were being used in place of lesser sentences, rather than as an alternative to prison (4). Among the key facts and figures highlighted in the report are: The number of prison sentences handed out between 1998 and 2009 grew by a third. The number of community sentences imposed in the same period also grew, by 10 percent. Suspended Sentence Orders - a sentence introduced in 2005 and intended to be used in place of a prison sentence - appear to have been used mostly as an alternative to community sentences and fines rather than to prison. 2,000 (three percent) fewer short-term prison sentences (under one year) were imposed in 2009 compared with This might indicate that reforms to community sentences helped to control the predicted growth in short-term prison sentences. However, the scale of increase in short-term prison receptions that preceded these reforms was left unaddressed and remains largely unchanged. Helen Mills, the report author, said: `Over a number of years the greater use of community sentences has been a preferred strategy of government ministers to control, perhaps reduce, the prison population. This report highlights the limitations of such a strategy. At best community sentences have slowed the growth of short term prison sentences. It seems unlikely that community sentences will, on their own, offer a coherent means of controlling or managing a prison population almost double that of thirty years ago Contact: Richard Garside at The Centre for Crime and Justice Studies on to obtain a copy of the report Crime victims in Europe to get extra protection Britons who are victims of crime in another EU country will get a guaranteed level of support, Justice Minister Nick Herbert said. He announced that the UK would opt in to the proposed EU Directive on the rights of victims, so the Directive will also apply in the UK. 'The availability of support for victims in other European countries can vary hugely', Mr Herbert said, 'we need to ensure that victims rights are clear and consistent so that crimes are reported and criminals can be brought to justice.' Victims in fear for their safety will also be better supported, thanks to proposed new EU-wide protection orders. Currently, protection can vanish the moment a victim crosses a border. But the planned new protection orders will mean that measures to safeguard the most vulnerable victims can automatically follow them when they travel to another European country. This would mean that, for example, a victim given a non-molestation order in one country, will be given a similar standard of protection in another EU country without having to go through lengthy and complex court procedures. Nick Herbert also said: The UK is rightly seen internationally as a leader in the provision of support to victims of crime. The Government is committed to improving the effectiveness of support we provide even further. This Directive will help to ensure that Britons who become victims of crime when travelling in Europe are given the support they need. Coming into contact with the Criminal Justice System can be an intimidating experience at an already difficult time. When it happens in a foreign country with the barriers of language and different legal systems to overcome, it s particularly important that victims are well supported. BAR COUNCIL AND CRIMINAL BAR ASSOCIATION VOICE QUALIFIED SUPPORT FOR COURTROOM CAMERAS The Bar Council, which represents barristers in England and Wales, and the Criminal Bar Association (CBA), which represents criminal barristers, have voiced a cautious welcome to recent proposals to allow film cameras into courtrooms for sentencing remarks. With the Prime Minister expected to announce moves to allow recording and transmitting sentencing remarks from courts, Peter Lodder QC, Chairman of the Bar Council, said: The Bar is well aware of the increasing dominance of the broadcast and internet-based media in public life, and we offer a qualified welcome to these proposals. It is vital that the judiciary is consulted and that the welfare of victims, witnesses and jury members is taken into account. Any broadcasts must be in the public interest and in the interests of justice. Public trust in the criminal justice system may be enhanced by the broadcasting of sentencing remarks. All sentencing decisions are explained fully, but the full extent of the judge s remarks is often unreported. Max Hill QC, Chair of the CBA, said: Criminal barristers have nothing to fear from increased public scrutiny, which can only demonstrate the quality and integrity of our profession. We do, however, have reservations about the potential broadcast of the trial process itself. Extracts shown in isolation may give a biased impression of a long criminal trial in which the jury have patiently listened to weeks or months of evidence from both the prosecution and defence. We must be cautious about placing any extra pressure on victims and witnesses, or exposing jury members to undue external influence.

24 24 the barrister There has got to be a better way than this How often do we ask ourselves, whether we would want to go through our current Court process, could we afford it or would we jump at the chance of resolving the issues which separation and Divorce throw up in a more constructive manner? By Graham Coy, Mundays Solicitors LLP How many times have Clients said this when, eventually, they reach the end of Court proceedings about their Divorce, their Children or their finances? Their view is often shared by their lawyers and even by the Judges who have to make decisions where no agreement can be reached. The answer to the question is yes, there is a better way and it is Collaborative Law and this article will look at the nature and size of the problem, what Collaborative Law is and what it can offer. In 2009, there were 113,949 Divorces, in other words over 250,000 people were caught up in the legal process. According to the Court Service, nearly 100,000 Children under 16 were also involved in Court proceedings started by one or other of their parents. To put this into some perspective, the total number of adults and children is more than the populations of some of our largest cities, Southampton, Leicester and Newcastle for instance. More alarming still is that this is happening every year. After a short period during which the Divorce rate was falling, 2011 is showing signs of it increasing again. If we accept that separation and Divorce are a fact of life, how can we as lawyers make that process as painless as possible for our Clients? Clients complaints about our current system include that it takes too long, that it is too expensive and too painful and acrimonious. Sadly, as lawyers we can do little about delays in the Court process; they are beyond our control and with the reality of Government cutbacks in expenditure, those delays will only get worse. What we do have within our power to control or at least influence are the cost involved and the undoubted stress, pain and anxiety which our Clients have to deal with. But how often, for example, do we as lawyers take into account the research which has shown that the second most stressful event which any of us may ever experience, including unemployment and imprisonment, is Divorce. Only the death of a child or the death of a partner is worse. How often do we ask ourselves, whether we would want to go through our current Court process, could we afford it or would we jump at the chance of resolving the issues which separation and Divorce throw up in a more constructive manner? Collaborative Law has existed in the U.S.A. since 1990 and in this Country since The concept is simple. At its heart are : Clients have their own lawyers and separate legal advice but agree at the outset not to go to Court. They and their Solicitors agree that if one Client does go to Court, both will have to find new lawyers. Negotiations take place only at a series of four way meetings when both the Clients and their lawyers are present. The lawyers are present to assist and advise their Clients and work towards agreed solutions rather than concentrating on arguing a case. There is no limit to the number of meetings. Meetings continue until agreement is reached. Lawyers only communicate with one another in between meetings in cases of emergency or to ensure that everything is on track for the next meeting. This avoids the tit for tat correspondence that so often increases the costs and sets couples yet further apart. Others can take part in the process, e.g. counselors and therapists, accountants, pension experts, financial advisers, valuers and estate agents. The process is not contentious in the way Court proceedings are. It allows everyone involved to look at the whole picture; in other words, not just at the black letter law, but to recognize and deal with the emotional difficulties the couple are facing and the turmoil which their Children are having to deal with. The Court system cannot do that; it was never designed to do so and is ill-equipped to do little more than impose decisions where agreement is not possible. What Collaborative Law offers Clients can be summarized as : Finding solutions which best meet their needs and the needs of their Children Achieving that without adopting the polarised positions which Court proceedings encourage Maintaining control over the process themselves; as lawyers we love to try and take control! Permitting our Clients to retain not only their self-respect but respect for their Partner as well, thereby allowing them to build a platform where they can continue to work together as parents for the benefit of their Children.

25 the barrister 25 The Collaborative process gives our Clients the opportunity to resolve the issues which separation and Divorce present in a manner which does as little harm to them and their Children as possible and which allow them all to move on in their lives. It also saves them significant sums in legal fees. Much of this is due to the success of Resolution(formerly The Solicitors Family Law Association) in promoting its Code Of Practice. Resolution now has 5,700 members and has responsibility for training Collaborative lawyers; so far about one third of its membership have qualified to practice as Collaborative lawyers. Collaborative practice is not easy, either for the Clients or the lawyers. For the practitioner, a whole new skill set is required but it is worthwhile both for us but most of all for our Clients. Neither is it a panacea; not every Client will want to follow the Collaborative route and not every case will be suitable, e.g. where Clients do not want to negotiate realistically or where one is not prepared to make complete disclosure of their assets. In those cases, the Court process is the only route forward; committed litigators need not fear extinction. Eight years after Collaborative Law came to these shores, the questions have to be asked, if Collaborative Law is such a positive innovation, why is it not more widely used as a means to resolve disputes and has its development in this Country stalled? There are a number of possible answers. Firstly, the label Collaborative Law really does not go anywhere near describing the process and what is involved. Having said that, it may need either a moment of divine inspiration or a deep pocket to instruct a branding guru, to come up with something better! Secondly, in order to succeed, a much greater degree of awareness is needed; awareness amongst the Judiciary, amongst the profession, amongst other professions (e.g. doctors, psychiatrists, counsellors), amongst the media and amongst the public. To a large extent both the Judiciary and The Bar are now familiar as to what the Collaborative approach can offer. Increasingly, both are enthusiastic as to what it has to offer. The media provided a lot of coverage when Collaborative Law was first taking off in this Country but interest has now waned. As a result, when a couple are struggling to get to grasp with the consequences of a relationship breaking down, not often enough does their list of options include Collaborative Law. At one stage, the relatively small number of Solicitors who were Collaboratively trained did hamper its progress; for the process to work, each of the couple s solicitors has to be Collaboratively trained. By and large, if a Client wants to see a Collaborative lawyer, it is not hard to find one. Some parts of the Country are now extremely well organised, practitioners are motivated and public awareness and interest are high However, the recession has had its effect on Collaborative law s development. Some Solicitors still see anything but litigation and the Court as a threat to their practices and livelihoods. Too often in the past, lawyers have been slow to react to change. Too often, change has been forced upon us. If we do not wake up to the inadequacies of our current system and embrace new ways of resolving disputes for our Clients, others will and as lawyers we will be left behind. Rightly or wrongly, the Divorce process in this Country does not have a high level of public confidence. The Coalition Government are considering reform of the Family Justice system as a whole; wide scale reform is needed. If it is recommended, will the Government act? At a time of deep cuts in public expenditure, including in the legal aid budget and to the Court Service, there can be no grounds for optimism. Leaving our Clients to sort things out for themselves is not the answer. But Collaborative Law can be an answer. It is a better way. This is especially the case at a time when the Courts are going to become more and more clogged up with litigants in person, Judges are not being replaced when they retire or move on, Court lists are getting longer and Courts are being closed. Collaborative Law offers Clients the answer to many of the problems the Court process creates while at the same time offering them and their children the prospect of a brighter future. Collaborative Law should be the first stop to helping Clients when they see us about separation and Divorce; it also lends itself ideally to resolving other issues, such as negotiating pre-nuptial agreements. More information about Collaborative Law can be found on Resolution s website : Graham is an experienced Family Lawyer and Partner in charge of a family team at Mundays LLP, Cobham, Surrey. Contacts: Graham Coy, Mundays Solicitors LLP: graham.coy@mundays.co.uk Graham is the Partner in charge of the Family Department at Mundays Solicitors LLP and has specialised in Family Law for nearly 30 years. He is very experienced in dealing with complex financial issues, cohabitation agreements and disputes, and pre-marriage agreements. In addition, he has built up specialist knowledge in dealing with disputes concerning children. Graham was one of the first family lawyers to become an accredited specialist with Resolution (formerly The Solicitors Family Law Association). He is a qualified family mediator, a trained Collaborative lawyer and an accomplished advocate.

26 26 the barrister Voluntarily Intoxicated Consent Rape or Regret? Intoxication, whether through drink or drugs, in the context of the regulation of sexual conduct, presents highly contentious and controversial issues. It can be notoriously difficult to obtain a conviction as a result of drunken consent By Gary L. Walters LL.B. (Hons), PGCE (PCET) FE/HE (Dist.), Dip. Bus & Fin Lecturer/Tutor: LL.B., LL.M., M.Sc., B.Sc., and E-Learning Facilitator Introduction Only 6% of reported rapes result in a conviction 1. However from April June 2006, 53% of prosecutions were successful in securing a conviction for rape 2. Obstacles that present themselves when deciding on cases of this nature are profoundly difficult to analyse. Upon discussing this issue with Felicity Gerry, Criminal Barrister, Felicity points out: The essential question in many rape cases is the defendant s assertion that this was regret not rape 3. This will be analysed during the consideration of the cases R v Bree 4, R v Olugboja 5 R v H 6, Donovan 7, unreported and academic journals. The Acts If an act is carried out voluntarily, it is done so without external force or pressure. This is a significant component of criminal responsibility. In other words, a female has voluntarily consumed alcohol with the defendant. Under s. 1, Sexual Offences Act 2003 (SOA 2003) a man is guilty of rape if he engages in the non-consensual penile penetration of another s vagina, anus or mouth (actus reus) and he has no reasonable belief that the victim consents at the time (mens rea). It was this Act which provided a statutory definition of consent for the purposes of sexual offences law for the first time in English and Welsh law. The SOA 2003 gives guidance to jurors regarding decision making in terms of the presence or absence of consent. Prior to the SOA 2003, the Sexual Offences Act 1956 (SOA 1956) Act allowed, arguably, more autonomy for jurors but jurors needed more direction in such serious cases. Failure to provide for voluntarily intoxicated consent has left the SOA 2003 wanting more from a sociological aspect. S.75 of the SOA 2003 creates two evidential, rebuttable presumptions: the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it 8 (emphases added) A number of circumstances (to be proven by the prosecution) are listed in s. 75(2) as triggering these presumptions; those of relevance are to be found in paras. (d) and (f): (d) the complainant was asleep or otherwise unconscious at the time of the relevant act; (f) any person had administered to or caused to be taken by the complainant, without the complainant s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act. The SOA 2003 has nothing specific to say about those cases of voluntary intoxication where the complainant remains conscious. Bree is a significant case in English and Welsh law in this area. Failure to provide for voluntarily intoxicated consent is a massive legal issue, especially for jurors. Intoxication - fatal to a case Intoxication, whether through drink or drugs, in the context of the regulation of sexual conduct, presents highly contentious and controversial issues. It can be notoriously difficult to obtain a conviction as a result of drunken consent. In Donovan 9 the complainant was so intoxicated she could not remember consenting or not which was fatal to the prosecution s case and hence, it failed. In the same way that a driver who dies in a car accident when not wearing his seat belt is seen as contributing to his own death, it would appear to be the case that an intoxicated victim of rape is regarded as asking for it, to coin a (vulgar) phrase, in the eyes of some jurors. The complainant may be considered to have aggravated her own situation. R v Bree (and others) In the case of R v Bree 10 the complainant was a nineteen year-old student at Bournemouth University. Bree was a twenty five year old man. Bree requested the company of the complainant one evening. It was agreed both were inebriated but to different levels. Later, the complainant was so intoxicated it was noted she: could not remember very much about the return journey, but accepted that she must have been conscious as she walked home, and she had all the necessary fobs, keys and passes which she used to gain entrance for them both 11 When they returned to the complainant s flat she was sick. It is at this point that the evidence conflicts. Bree contends she asked for shampoo so that her hair could be washed. The complainant contends she was asked for the shampoo. There is an unusual comment from Sir Igor Judge at this point: There was no suggestion of any sexual activity at this stage. The defendant was behaving unselfishly. 12 This could well have the opposite

27 the barrister 27 connotation. He may well have been cleaning the complainant in preparation for sexual intercourse. It is a rather odd comment by the judge, and one that warranted, in the author s view, more investigation. Conversely, it could have been a well meant gesture to a friend who he may have been considering a girlfriend by this stage, however, as this was not further probed, it may not be known. By this stage the complainant was unconscious by her account. Her next memory is of Bree between her legs performing cunninglingus. At this stage she did nothing to dissuade him, although this is not accepting that she consented. Silence during sexual intercourse is not consent which was determined during the case of R v Olugboja during the 1956 act: Apparent acquiescence after penetration does not necessarily involve consent. 13 He then digitally penetrated her. She felt as though she was not in the room and the next recollection was of him near her face asking her for a condom of which she replied she did not have one. Bree s account is that she asked him for a condom, and he said he did not have one. She did not say no to sex. Could she have submitted as opposed to consented? Olugboja was found guilty of rape and appealed, arguing: that rape required that the prosecutor should prove that the girl's submission should have been obtained by force or fear of force. 14 The Court of Appeal rejected this. In terms of submission equating to consent, Dunn L.J stated that the woman concerned did not in fact consent: she may have submitted to Olugboja but she did not consent. Brief penile penetration ensued by Bree but he stopped as she was concerned about unprotected sex. If this is the case then she would appear to have had a degree of capacity to make decisions. Section 74 of the 2003 Act provides:...a person consents if he agrees by choice, and has the freedom and capacity to make that choice. 15 Academic Input According to research carried out by Finch and Munro into jurors attitudes to intoxicated complainants, when women engage in heavy, voluntary drinking, some jurors consider that they have aggravated the crime, even when their drink has been spiked. As Finch & Munro state: she should nonetheless retain responsibility for subsequent events, as she should have taken greater care. 16 It is an important indicator of how jurors think and whilst it is may only be one opinion amongst jurors; a person sharing it may be persuasive in drawing others to adopt the same viewpoint. According to Bryden & Lengnick this may lead to a judgment of the victim as a norm-violating woman. 17 In other words the complainant is not regarded as raped in the traditional perception of jurors that is to say she has not been violently raped by a stranger wielding a knife; instead she engages in mutual sociable activities such as drinking alcohol with her acquaintance and by virtue of this she is looked at less sympathetically by jurors. In the author s opinion the most critical analysis of the decision in Bree is by Shlomit Wallerstein in a drunken consent is still consent or is it? 18 Wallerstein recognises that the court has made progress in stating that, although drunken consent is still consent, the fact remains that consent may disappear before unconsciousness begins. This principle of disappearing consent was not, in Wallenstein s view, applied in Bree. There are many views on how the court should approach voluntarily intoxicated complainants in regard to consent. Wallerstein goes on to suggest Bree did not go far enough: s.74 of the Sexual Offences Act 2003 which governs these P A scenarios allows--and even requires--a more drastic interpretation: a drunken consent is not consent when the person is very drunk. Based on a distinction between factual and legal consent 19 Wallenstein v Bree (decision) Wallenstein criticises Bree in that it did not apply the law to the facts. Voluntarily intoxicated consent is not being addressed sufficiently by the courts under s.74 in terms of not being restrictive enough to the facts of each case, in particular, Bree. Wallenstein argues that the rule of leaving it to the common sense of the jury to ascertain consent, is failing. The statistics seen earlier may be indicative of this 20. The comment for concern regarding the issue of consent in Bree is that the prosecution changed its position. It initially argued that the defendant engaged in sexual intercourse with the complainant when she was unconscious, which would have almost certainly been rape (as, if proven, it would have triggered the s. 75 rebuttable presumptions). F Highways & Traffic Safety Ltd Paul Fenton MITAI, MIHIE, DipASM, MCIHT, MSoRSA Independent Forensic Collision Investigator, Road Safety Engineer & Auditor PAF has been established since 1995 and is a well respected consultancy that provides independent expert advice and support to the legal profession, insurance industry and highway authorities. Paul Fenton, the Director, has the benefit of having served as a Metropolitan Police Collision Investigator as well as working in both the public and private sector including local highway authority, the Highways Agency and consultant engineering organisations. Services include: Forensic CollisionAnalysis & Investigation Collision Reconstruction Scene Investigation Collision 3DAnimation Locus Reports Vehicle Examination Conflict Studies Road SafetyAudits & Assessments Investigation of Non-Compliance of Highway Design Road SafetyAudits & Assessments The Old Vicarage 5 Ancliffe Lane Bolton-le-Sands Tel: Carnforth info@paf.co.uk Lancashire LA5 8DS

28 28 the barrister Don t do a Dougal However on cross-examination of the complainant the prosecution changed its position due to the complainant s lack of memory due to drink. It is contended by the author, and by Wallenstein, that this was out of desperation and the concern from the Crown Prosecution Service that another Dougal 21 would take place. This problem was later resolved in the case of R v H 22 where it was accepted that the principle of consent disappearing just before unconsciousness begins, was valid. Wallenstein articulates well the question of this article with the following: In any case, the message is clear: a drunken consent 'does not count'. In choosing to have sex without having prior (sober) consent, a man has sex without consent, which amounts to the actus reus of rape. This places the man at risk of being prosecuted, subject to a later decision of the woman not to complain, and the decision of the prosecution whether to prosecute. 23 Conclusion The public and parliament need to move with the times, tempora mutantur nos et mutamur in illis. No doubt improved sociological education of what might happen if men have sex with women that are intoxicated, especially those that do not overtly consent. A simple caveat to any man considering in engaging in intercourse with an intoxicated woman is simply not to do so. The law has and will continue to have difficulties dealing with such issues but unless a contract is drawn up for the two parties before a night out, these problems will re-present themselves. In trying to make more sense of the law on voluntarily intoxicated consent, Alan Reed encapsulates the feeling well: Arguably the true meaning remains as opaque as ever. 24 The need for reform, the author asserts, is stronger now post-bree and the SOA 2003, than ever before. Cases R v Bree [2007] EWCA Crim 804 R v Dougal [2005] (unreported) R v H [2007] EWCA Crim 2056 R v Olugboja [1981] 73 Cr App R 344 Legislation The Sexual Offences Act 1956 The Sexual Offences Act 2003 Journals Bryden, D.P., and Lengnick, S., Rape in the Criminal Justice System,1997, 87 Journal of Criminal Law & Criminology p.1 Finch, E., and Munro, V.E., Juror stereotypes and blame attribution in rape cases involving intoxicants: the findings of a pilot study, 2005, Vol.45(1), British Journal of Criminology, p Reed, A., Rape and drunken consent, 2007, Criminal Lawyer, p.2 Wallerstein S., A drunken consent is still consent or is it? A critical analysis of the law on Drunken Consent to Sex following Bree, Journal of Criminal Law, 73 (318) p.1 Internet Home Office, Supporting Victims and addressing the justice gap, nationalarchives.gov.uk/+/ homeoffice.gov.uk/crime-victims/reducingcrime/sexual-offences/index.html Crown Prosecution Service, cps.gov.uk/publications/equality/vaw/vaw_ strategy_annex_b.html#a02 ukpga_ _en_5#pt1-pb20-l1g74 Sexual Offences Act 2003 s.74, Office of Public Sector Information 1 Home Office, Supporting Victims and Addressing the Justice Gap, webarchive.nationalarchives.gov.uk/+/ reducing-crime/sexual-offences/index.html 2 Crown Prosecution Service, Rape and Sexual Offences, publications/equality/vaw/vaw_strategy_ annex_b.html#a02 3 Felicity Gerry, Criminal Barrister, Specialises in Sexual Offences, 36 Bedford Row Chambers, London 4 [2007] EWCA Crim [1981] 73 Cr App R [2007] EWCA Crim Unreported, Swansea Crown Court, November ukpga_ _en_5#pt1-pb20-l1g74 Sexual Offences Act 2003 s.74, Office of Public Sector Information 9 Supra, n.7 10 Supra, n.4 11 Supra, n.4 at para.5 p Ibid, at para.7 p [1981] 73 Cr App R 344, Dunn LJ at p Supra,n.13 at page ukpga_ _en_5#pt1-pb20-l1g74 Sexual Offences Act 2003 s.74, Office of Public Sector Information, site accessed :52 16 Finch E., Munro V., Juror stereotypes and blame attribution in rape cases involving intoxicants: the finds of a pilot study 2005, British Journal of Criminology, 45(1), at para Bryden, D.P., and Lengnick, S., Rape in the Criminal Justice System, 1997, 87 J. Criminal Law & Criminology, 36 highbeam.com/doc/1g html at point (6), published , site accessed :04 18 Wallerstein S., A drunken consent is still consent or is it? A critical analysis of the law on Drunken Consent to Sex following Bree, Journal of Criminal Law, 73 (318) p.1 19 Ibid, p.1 20 Supra, n.1, n.2 21 Supra, n.7 22 [2007] EWCA Crim Supra, n.18 on public policy reasoning 24 Reed, A., Rape and drunken consent, case comment on Bree, 2007, Criminal Lawyer, p.2 The barrister magazine cannot accept responsibility for information supplied by other parties, views expressed may not necessarily be that of the editor or publishers.

29 the barrister 29 Under the Spotlight: Employers Liability Leading barristers from Atlantic Chambers delivered a fascinating insight into topical issues concerning employers liability during a seminar held in Liverpool recently. control, with Swift J finding the Defendant did not owe the Claimant a duty of care under the 2005 Regulations and she refused him entry to the property in her capacity as an occupier, not as a person controlling the way he carried out his work, with that right belonging at all times to the contractor as his employer. Over 80 solicitors from across the Northwest of England attended the CPD-accredited event, featuring personal injury specialists Andrew Pickering, Charles Prior and Michael Armstrong, of the Liverpool-based Chambers. It was the first time Atlantic Chambers had hosted a seminar on this topic and the half-day event was reported to have been extremely well received. Andrew Pickering, who specialises in personal injury litigation (including industrial disease), clinical negligence and public law, delivered a presentation into various aspects of the Work at Height Regulations 2005, which came into force on 6th April 2005 (Regulation 1). The regulations apply to an employer in relation to work done by an employee of theirs (Regulation 3(2)(a) and (b) any person under his control to the extent of his control, said Mr Pickering, which suggests that the crucial control is over the person, not over the work. Mr Pickering referred to a number of interesting cases, one of which being Kmeicic v Isaacs [2010] EWHC 281 QB. In this the Claimant, a casual labourer, claimed damages against the Defendant, an occupier, for personal injury loss and damage sustained as a result of an accident which happened while carrying out work for a building contractor on the Defendant s garage. The Claimant alleged the Defendant had withdrawn her permission for him to access a roof through a bedroom window, and instructed him to use the ladder from her garage instead. The Claimant claimed the ladder toppled as he was standing on it, causing him to fall. The claim failed, primarily on the issue of During the course of his presentation Mr Pickering directed delegates to the HSE s Brief Guide of the Regulations, which sets out a simple hierarchy for managing and selecting equipment for work at height. The Guide states duty holders must avoid work at height where they can, use work equipment or other measures to prevent falls where they cannot avoid working at height; and where they cannot eliminate the risk of a fall, use work equipment or other measures to minimise the distance and consequences of a fall should one occur. The discussion then moved on to ladders an aspect of the Regulations likely to generate considerable litigation, not least because of the enormous numbers of falls from ladders which occur every year, and which on average, account for one third of all fall from height injuries. Mr Pickering suggested that those who drafted the Regulations seem hostile to the use of ladders, referring to the demands of Schedule 6 para. 1 which must be met before a ladder can be used. Despite the HSE s hostility to their use, the convenience of ladders as a working platform, as well as a means of access, are likely to mean that they continue to be used, Mr Pickering said. Delegates also heard from Atlantic Chambers barrister Michael Armstrong, who deals with all aspects of civil litigation

30 30 the barrister and has a particular speciality in personal injury. Mr Armstrong s presentation saw him explore the effects of no fewer than 12 recent employer liability cases. One of which, Munro v Aberdeen City Council [2009] CSOH 129, saw M, who was employed by ACC, slip on ice in a car park which was part of her workplace within the meaning of WHSWR. Damages were agreed at 150,000 including a quarter discount for contributory negligence. The issue in dispute was whether regulation 5(1) of the WHSWR applied to transient hazards such as ice on the surface of an otherwise structurally sound car park. The court found that the European Workplace Directive does not clearly impose on employers any absolute duty to secure the safety of workplaces under all possible conditions. Whilst in the case of Ceva Logistics Ltd v Mark Anthony Lynch & Steve W Lynch t/a SW Lynch Electrical Contractors [2011] EWCA Civ 188, MAL was a visiting electrician employed by SW to a warehouse owned by CL. MAL regularly visited the warehouse in the course of his employment and was walking within the warehouse when he was struck by a reach truck. With no criticism of the driver of the truck due to the configuration of the truck and warehouse at first instance a claim succeeded against CL on the basis of Regulation 17 of the WHSWR. CL appealed suggesting it was not liable under Regulation 17 for employees that were not its own. This was rejected by the COA on the basis only CL could control the rules in the warehouse in order to keep everyone safe. Mr Armstrong also referred to the case of Vaile v London Borough of Havering [2011] EWCA Civ 246, in which V, a teacher employed by LBH, was assaulted by a 14-year-old special needs child, X. X was within the Autistic Spectrum, although V had not been informed of the same and had not been trained in the appropriate techniques. At first the claim was dismissed as although LBC failed to provide an adequate teaching system for X and train V appropriately, the judge felt there was no evidence the teaching was so inadequate to produce an unsafe system of work or that any breached caused V s injury. However on appeal V s claim was allowed. It found the judges conclusions that X was not properly educated and that V s lack of training were sufficient evidence of any unsafe system of work. Further the COP found that had X s educational needs been met and V properly trained, on balance the accident would not have occurred. The focus of discussions moved on to the principles of interim payments as Atlantic Chambers personal injury specialist barrister Charles Prior took to the stage. There are three facets to every application for an interim payment: first, conditions which must be satisfied, and, second, matters which must be taken in to account, as well as, third, the general discretion, including the overriding objective, Mr Prior explained. Satisfied, within CPR 25.7, here means more likely than not at trial. This being an interim application, the Court, on limited information, has to make that assessment on the balance of probabilities but to a high standard so that it thinks that a Claimant would achieve a particular result after trial or assessment, he added. Mr Prior referred to the case of Stringman (a Minor) v McCardle [1994] 1 WLR 1653 to demonstrate that Claimants now do not have to prove a general need for the monies and a particular need for the monies. However, since there is a discretion, it seems that in practice Claimants do have to prove a need, especially where the application is founded upon neither an interim judgment nor an admission, Mr Prior noted. After all, the Practice Direction to CPR 25 - PD25B requires that an application has evidence stating the items or matters in respect of which the interim payment is sought. Delegates heard that CPR 25.7 requires two matters to be taken into account in any application for an interim payment: that the interim payment must not be more than a reasonable proportion of the likely amount of the final judgment ; and that the interim payment must take into account contributory negligence. Mr Prior explained that taking into account the reasonable proportion of the final judgment can still mean a high proportion - even 90% - but is usually up to 50% or 75%. The reasoning being the assessment of the final judgment is done conservatively, so the proportion of that conservative assessment need not also be conservative, just reasonable. Mr Prior also explored how special circumstances, including the requirement to show need, apply in large cases where a Periodical Payments Order is a likely final order, following the case of Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204. The speakers from Atlantic Chambers were joined by guest speaker Philip Collier, a consulting forensic engineer and partner at Collier Knight Watts LLP, who delivered a presentation entitled Engineering Expert Witnesses - Friend or Foe. The above feature has been produced to give an insight into some of the content featured in Atlantic Chambers recent Employers Liability seminar and in no way constitutes legal advice. For specific advice please contact Atlantic Chambers directly. Visit

31 the barrister 31 Barristers views sought on sentencing for multiple offences and mode of trial. The Sentencing Council is seeking views from barristers on proposed guidelines for three overarching aspects of sentencing: totality, offences taken into consideration and allocation. The draft guidelines, which are set out in a single consultation document, aim to promote a consistent and proportionate approach to sentencing in cases where more than one offence is involved and to help the courts operate as effectively as possible by ensuring that each case is heard in the appropriate court. Totality is the principle that the total sentence for a number of offences considered together should be just and proportionate and reflect the overall seriousness of the criminality when all the offences are considered together. There is a wealth of case law regarding this principle but no one source of guidance and so the guideline aims to bring both greater clarity for the judiciary and practitioners in the application of the principle and to increase transparency for the public. It is not seeking to bring about any change to sentencing practice other than where the application of the guideline might lead to greater consistency of approach. The draft guideline provides guidance on areas such as whether a sentence should be concurrent or consecutive, the stage in the sentencing process the principle should be applied, the effect of personal mitigation and how to ensure a sentence is just and appropriate. It also includes guidance on how to structure multiple sentences in a variety of specific situations such as multiple fines or community orders, or determinate sentences where the offender is already a serving prisoner. Comments from barristers on any aspect of the draft guideline would be welcome. The Sentencing Council is also consulting on its draft guideline for offences taken into consideration (TICs), which are those offences which an offender is not being prosecuted for, but asks the judge to take into consideration when sentencing him for another offence. While there is wellestablished practice on the matter, there is no single source of guidance about the approach the courts should take. The Council therefore felt it was important to set out the general principles, procedure and approach that should be taken to TICs. The draft guideline is intended to bring clarity and consistency of approach to this longstanding convention. Like the draft totality guideline, it is not intended to bring about changes in sentencing practice other than where the application of the guideline might lead to greater consistency of approach. The types of sentence being given and the prison population are not expected to be altered. As well as asking criminal justice professionals for views on the proposed approach to the application of TICs overall, the consultation covers many other aspects such as proposed procedural safeguards. The draft guideline reinforces the court s discretion as to whether to take offences into consideration. It also lists a number of circumstances in which it is undesirable for TICs to be accepted, such as where a TIC could attract a greater sentence than the conviction offence and if it is in the public interest that the TIC should be the subject of a separate charge. However, it is asking for views on whether there are other examples that could be included in this list of circumstances. The third draft guideline the Sentencing Council is consulting on is allocation, the decision of a magistrates court as to whether an either way offence should remain in the magistrates court or be committed to the Crown Court for trial. The draft guideline aims to encourage a consistent approach to allocation decisions and so ensure that each offender is dealt with by the court most suited to sentence them according to the seriousness of their crime.

32 32 the barrister There are currently no sentencing guidelines on allocation although there is some guidance responses should be sent by 8 December to: consultation@sentencingcouncil.gsi.gov.uk within the Consolidated Criminal Practice Direction issued by the Lord Chief Justice. The guideline proposed is intended for use in the magistrates court, where the vast majority of allocation decisions are made. Barristers are invited to give their views The professional consultation paper, short guides on allocation, totality and TICs, resource assessment and equality impact assessment can be found at: on whether the structure of the guideline provides sufficient guidance to magistrates to help them make consistent and appropriate allocation decisions, whether the recommended approach for assessing cases is effective and whether there are other matters that the guideline might usefully cover. The consultation on the three draft guidelines was launched on 15 September, and

33 the barrister 33 A new type of Law Report for a new type of emerging law! By Phillip Taylor MBE, Richmond Green Chambers There s much change afoot with our beloved law reports and we now have a new addition to go with all the old favourites such as the All Englands and the Weekly Law Reports. They are called The Information Law Reports which are confidently described as an important new series in an expanding area of law online and in print. In other words, it s this rapidly growing area covering the right to know, the right to keep private and the ever-shifting boundary between the two. With the big changes brought about by the information technology revolution in the last 25 years, the reporting of legal decisions is also changing now to reflect modern practices. For instance, The Times Law Reports - probably the first ones we actually see in print - are now available under the auspices of the Incorporated Council for Law Reporting, whilst many use the sometimes rather frowned upon British and Irish Legal Information Institute (BAILII) which I must confess I have always found very helpful after all the fiddling around with LexisNexis online which somewhat puzzled me because I could not get the citations right. WHAT IS INFORMATION LAW? Think back to your student days when the law of tort was so much less cluttered, and the Campaign for Freedom of Information was in full swing against our over-secret society, and the public services. Well, we ve moved forward and the gap in the detail is now being covered for a new generation of lawyers in both paper form and online. So you ll probably wonder what all this has to do with you as Counsel! The answer lies in London at 11 King s Bench Walk in The Temple, and with the legal publishers, Justis Publishing, who have collaborated to create a new series of law reports available both in bound volumes and also on the Justis website or platform as some call it. We are told that Information Law is becoming ever more important, seeking to balance the right to know and the right to be left alone in an age of massive databases and global information flows. Of course, we all want to protect our own privacy, but we also want to understand how public authorities make decisions and spend our money. So this new series does help professionals grapple with these issues as we see the precedents build up as a new body of, dare I say it, an emerging substantive law of information. I have used this platform and I did find it easy to navigate after the problems I have encountered in the early days of using online library precedent services which were not always easy systems. Timothy Pitt-Payne QC, a barrister at 11KBW and one of the leading editors of the new reports, said when introducing these reports that: There is a growing case-law, generated by the specialist Information Rights Tribunal and the higher courts. Navigating this material and quickly identifying the most important recent developments is increasingly challenging. The Information Law Reports seek to meet this need, bringing together all the most important cases in a single source. 11KBW are delighted to be working with Justis on this much-needed project. Mr Pitt-Payne is joined in his work by Anya Proops and Robin Hopkins, all leading practitioners in the field of information law, who are the joint leaders of 11KBW s Information Law Practice Group. What I did like from the reports I have read so far are the credits given to all those reporters who have contributed to the publication which show the range of expertise available and complement the gravitas of the reports themselves. The update frequency is around six full reports each quarter and access to the archive as it grows. And Mr Masoud Gerami, the Managing Director of Justis Publishing, when launching the new law reports said: We have had a number of significant milestones in our 25-year history, mostly associated with innovation and developments which have changed legal information dissemination for the better. I am delighted that another milestone has been added to our list of achievements by producing the new series of Information Law Reports in association with 11KBW, the leaders in this increasingly important field. I believe that the complementary nature of the expertise from the partners in this project is the ideal requirement for any successful product or service, and we look forward to a continued relationship with 11KBW.

34 34 the barrister JustCite and Justis platforms is to use them so I feel that it s probably a big time-saver once the reports stack up and you get used to using the systems. Many of you may be wondering what relevance this area has for your practice, and I did too. Then I realized the range of the reports themselves. This is part of the short shopping list of the areas: data protection; freedom of information; other statutory rights of access to information; and the regulation of surveillance. He went on to say that: This is also the first time that Justis Publishing has produced a product in hard copy, and we are very excited about the possibilities that the combination of hard copy and online versions will present. When I interviewed Mr Gerami, he likened the new reports as viewed on the web as being akin to peeling off the layers of an onion - rather an interesting comparison as the law reports and their precedents do tend to be peeled away but fortunately without the tears, either of joy, or from the onion! What we get here is the first and only systematic repository of full reports in an expanding area of law otherwise limited just to the written judgments themselves, and this must be a good thing for all concerned. And it s the cross-referencing to previous cases which I found helpful. In the past I have relied on the written notes in the Law Library paper law reports for cross-referencing to other cases. What we have with these reports when viewed online is a very quick noter-up system which is immediate (and thus time-saving) with these reported decisions identifying which authorities from the past back our cases, and which do not. Additionally, there are links from the Justis platform through to the JustCite citator, its sister service. Here, simple visual images rather like the branches of a tree show precedents cited in the case in question (on the left), and subsequent cases citing the case in question (on the right), along with indicators of whether the treatment was broadly positive, neutral or negative. Click the case and you go straight to it. Frankly, the only real way to understand the It s also right to say that it s a fast moving legal area which is relevant to a wide range of legal practitioners (there were many solicitors at the launch) in both the private and public sectors. The substantive areas of law covered include employment law, administrative and local government law, and business law which will certainly cover what we know as commercial and company (corporate governance) law. The full-text online legal library which is being created is probably the beginning of the end for the old-style reports as we know them. The key is to master the operation of what Justis have created here as the reports are indexed with their aforementioned sister service, which is described as a providerneutral citator called JustCite. ENDPOINT So, what the Information Law Reports do offer is a searchable facility which can be operated in isolation, or in conjunction with, other series of reports so Justis are pathfinders for the new way we will end up doing things. I was rather apprehensive about this approach at first, but I have concluded that it is a great way forward for us as legal practitioners in this digital decade.

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