Barrister Magazine issue 39

8/9/2019 Barrister Magazine issue 39

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3

the barristerISSN 1468-926X

price

3.0012th January 2009 - 19th March 2009

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eitor: nige sio0870 766 2715mail: [email protected]

publishrs: meia maageet cororatio lt

publishing dirctor: derek paye

dsign an prouction:Aa pritharmail: [email protected]

print by: newnorth, mito Keye

#39

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The Constitution Committee

The House of Lords Select Committee on the Constitution

which I chair, was formed in 2001 in response to

a recommendation by the Royal Commission on the

Reform of the House of Lords. It is unusual among

committees in that it performs a dual role: scrutinising

legislation and conducting longer policy inquiries into

matters of constitutional importance.

Relations between the executive, the judiciary and

Parliament1

In July 2007 the

Committee published

its report on Relations

between the executive,

the judiciary and

Parliament which

analysed the evolving

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

relationships between

the three arms of

the state and made a p.32

Nws

It is important that government and

ministers understand and respect the vital

independence of our judiciary

HiLArY TerM iSSUe

eSSeNTiAL reADiNG FOr BArriSTerS

www.bastmagazn.com

LORD GOODLADChairman of the House

of Lords ConstitutionCommittee

Bespoke tax advice for barristers

Chancery Lane, Londonwww.haysmacintyre.com

.21

Stuy into local lgal avicannounc

Est . 1999

The Wood Review:Tough Love for the BVC

The Panel established by the BSB to review the

BVC and chaired by Derek Wood QC published

its report in July 2008, and all stakeholders

regulators providers, practitioners, prospective

students and those advising them are now

getting to grips with its recommendations.

These were comprehensive, in some cases

radical, and certainly reflected the range and

apparent seriousness of allegations to which the

review had been addressed. As listed in Chapter

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

recruitment of too many students (numbers had

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

for too few pupillages (a 5% reduction over the

same period); students who were unaware of

the risks they were running when they signed

up for an extremely expensive course; content

that was insufficiently challenging, realistic and

specialised to meet the needs of modern practice;

teaching standards that were too low; and a pass

level which was lower than any professionally

recognisable threshold of competence, even for

pupillage.

For providers this must have been depressing.

It might also have been somewhat perplexing,

because over the last ten years the BVC has been

subject to almost constant external scrutiny.

Its current content was prescribed in some

detail, via the so-called Golden Book,

by the Elias Working Party as recently as

2000. Since then, major aspects of the

12

16

p.10

Consultations on aymnt of CrownCourt fnc costs

Fears over the Future oF the

court service and concern

over justice budget cuts

Th rorts in Octobr 2008 of cutbacks

at th Ministry of Justic ar th latst

masurs takn by th Govrnmnt to

ruc th xnitur on th justic

systm as a whol. Ths ar not th

first bugt cuts which ar likly to havan imact on th workings of th justic

systm in englan an Wals.

By paul Marsh, prsint, Law Socity

of englan & Wals

LegaL gLobaLization: an

expanding picture

Whil th ictur might b xaning, is

a uniformity of lgal ractics sraing,

thrby contracting th ivrsity of

law worlwi? Builing on th last

issu of Th Barristr, w continu our

invstigation into lgal globalization an

consir in articular th ffct iffrnt

jurisictions ar having on ach othr.

By Alistair King of Justis publishing

enhancing the participation oF

chiLdren in FamiLy proceedings

Th issu of whthr or not chilrn

shoul hav th oortunity to lay

a gratr art in rocings whr

cisions will b ma which will affct

th rst of thir livs is bcoming th

subjct of incrasing bat.

By Nicholas Crichton, district Jug,

sitting at th Innr Lonon Family

procings Court


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03the barrister

Fears over the future of the court service andconcern over justice budget cuts

By Paul Marsh, President, Law Society of England & Wales

The reports in October 2008

of cutbacks at the Ministry

of Justice are the latest

measures taken by the

Government to reduce the

expenditure on the justice

system as a whole.

These are not the first budget cuts which arelikely to have an impact on the workings of

the justice system in England and Wales.

The courts and legal aid system have been

at crisis point for some time, so there is no

scope for further cuts without cutting into

vital public services.

The Court Service itself has suffered from

years of underinvestment, and we badly need

sustained investment in court staff and their

supporting infrastructure. Job cuts and the

abandonment of longer-term programmes

to modernise court infrastructure are not

the right way forward for court users or the

wider public interest. A modern, efficient

court system is essential to the well being of

the economy as a whole.

Legal Aid

There are ongoing concerns about the

possible impact on the legal aid budget of

the budgetary pressures that have been

revealed. We already know that the Carter

reforms have led to the Government making

significant savings as against the previous

trend lines for legal aid expenditure, and we

have received repeated assurances that the

Ministry believes that legal aid expenditure is

now sufficiently under control that no further

cuts or restructuring will be required beyond

those proposals already signposted, such as

for Crown Court means testing, private law

family litigation and family advocacy.

Moreover, in the light of the Ministrys

willingness to reach a deal with QCs that

increases the payments to the highest paid

barristers in the system albeit on the basis

of arrangements that should be cost neutral

it would be politically very difficult for the

Ministry now to make cuts elsewhere that

impact on solicitors or clients. In the light

of the unequivocal assurance from Justice

Secretary, Jack Straw, that this settlement

was affordable, any cuts to the system that

impacted upon the solicitors professionwould be viewed as a significant breach of

faith by the Ministry.

The cuts in staff at the Legal Services

Commission (LSC) do give some cause for

concern to barristers as well as solicitors.

Practitioners frequently complain about delay

in their dealings with the Commission, and it

would be very damaging if the effect of these

cuts was to increase delays.

The delays in responding to case plans in very

high cost family cases are exorbitant. During

the credit crunch, it is more vital than ever

that bills are processed and paid promptly.

It would not be acceptable if these matters

were addressed at the cost of introducing

new delays in parts of the system that are

currently reasonably efficient.

Having said that, this could represent an

opportunity for the profession. The LSC

needs to recognise the limits on what it can

reasonably achieve, and to tailor its activity

accordingly. This may require a reduction

in the information it demands from firms,

to reflect what it genuinely has the scope

to process. There is no point in demanding

huge amounts of information that are never

processed and dont add value to the planning

and/or accountability of the system.

It may involve radical downsizing of its

audit policy. In theory, since a peer review

result lasts three years, every firm should

be reviewed no less often than once during

the life of each contract. In practice, the

LSC is able to achieve only a fraction of this

target. The system needs to be designed

in accordance with what the LSC can

realistically do in practice, not what it would

like to do in an ideal world. This applies with

equal force to the design of the scheme for

quality assurance for advocates.

It will hopefully involve the devolution of

much greater powers to the lawyers and

advisors to take the steps professionallynecessary on a case. At present, firms have

to undergo a degree of micromanagement on

individual cases that would be hard to defend

even if the LSC did have the resources to do

it effectively.

In terms of proportionality of cost to result,

and in terms of the delay caused in delivering

the service to clients, this level of involvement

in individual cases must end. The LSCs job is

to manage the system, not to manage every

case within it.

Even totemic projects such as CLACs and

CLANs and Best Value Tendering need to be

carefully considered. They require huge costs

in order to deliver rather speculative benefits.

With the current budgetary pressures, are

these really more important than maintaining

the current day to day service to clients?

I have been extolling to the profession the

concept of the Business of Law a central

theme of my presidency - encouraging law

firms to run efficiently and follow sound

business principles. Many have risen to

that challenge. Perhaps the LSC needs very

speedily to adopt the same principles.

Technology

More than 10 years after Lord Woolf, in his

report on access to civil justice, expressed

his 'conviction that sensible investment in

appropriate technology is fundamental to the

future of our civil justice system' the possible

abandonment of the Court Service's flagship

proposals to introduce electronic filing and

document management (EFDM) systems to


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04 the barrister

the civil and family courts is depressing. It is

also short-sighted.

The pace of technological change is

accelerating and Lord Woolf's expectations

for technology in the courts now seem as

retrospectively modest as they are unfulfilled.

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

that back in 1996 a good Pentium PC with an

800 Mb disc and running Windows 95 would

have cost a law firm around 2,200! The

world has changed. The courts have barely

changed. In essence they are still hugely

paper-based and relatively inefficient.

If the government is not prepared to make

significant investment in the technological

infrastructure and back-office processes

of the courts now, the position can only get

worse.

In the first place, a cutback in such essential

infrastructure appears inconsistent with

a proclaimed policy of fiscal stimulus to

ameliorate recession. Secondly, the court

system will suffer further relative decline

both in relation to alternative jurisdictions

and in relation to our rising expectations. The

government knows this.

Civil Justice 2000 was subtitled 'A vision of

the Civil Justice System in the Information

Age'. It argued that 'for too long Government

departments have lagged behind the private

sector in the innovative and effective use of

new technology'. It identified the impact of

the internet on business and suggested that it

was necessary to 'look ahead in order to plan

and develop the future share of the justice

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

time when solicitors are embracing a range of

new technologies to compete as effective and

efficient businesses in the delivery of services

to their clients we need the government to

match its earlier vision and rhetoric with

action. Now is not the time to cut much

needed investment in the courts.

Virtual Courts

Virtual courts, one initiative where the courts

have looked to implement new technology,

unfortunately risks lowering the quality of

ustice in our courts.

We are extremely concerned about the

potential for waste in the virtual courts pilot,

a project led by the Office for Criminal Justice

Reform (OCJR).

Planned for implementation in early 2009, it

will require the kitting-out of 16 custody suites

in London and Kent with video conferencing

equipment to enable defendants to 'appear'

at their first hearing in court.

There are enormous practical difficulties

and additional costs that this new way of

conducting court hearings, which will be

extended to include out-of-hours work, will

cause defence lawyers, which have only just

adjusted to the post-Carter world of fixed fee

cases to be dealt with in the one court centre,

with no additional travel and waiting.

The Law Society also has concerns about the

quality of the justice that will be delivered

remotely, and we very much doubt that the

supposed benefits - said to be savings arising

from fewer defendants failing to appear and

reduced police transport costs - will make the

very conservative estimate of 8.7 million,

as set out in the OCJR's business case,

worthwhile.

While it is acknowledged that video

technology is used to good effect in dealing

with administrative and appeal hearings,

here we are concerned with a person's

first appearance after arrest, when issues

such as release on bail are considered, and,

increasingly, pleas are required to be entered,

often when the person is not in possession of

proper disclosure and may not have received

any, or sufficient, legal advice.

We would politely suggest that before spending

large amounts of money on this costly

experiment, the fate of the 2002 Extended

Court Sitting Hours Pilot, otherwise known

as Night Courts, should be considered, and

the virtual courts pilot dropped, or, possibly,

confined to rural areas where there may well

be advantages to all involved in the criminal

justice system, not least the defendant.

Conclusion

The Law Society, and I am sure many other

representative bodies in the legal profession,

are ready to engage in constructive dialogue

with the Ministry on the on-going budget cuts

and state of our justice system. I made this

clear in my letter to the Justice Secretary

when news of the latest cut backs emerged.

The government must draw on the expertise

of the profession and others with day-to-day

knowledge of the working of the courts. We

must all be united in defending the justice

system.

Paul Marsh, President, Law Society of

England & Wales

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06 the barrister 07the barrister

Moves in mediation: confidentiality, the EUDirective and regulation

By Tony Allen, Solicitor, Mediator and Director of CEDR and Professor Karl Mackie, Barrister,

Mediator and Chief Executive of CEDR

C

onfidentiality is at the

heart of the mediation

process. Because parties

feel safe from commercial

exposure or assumptions

of weakness drawn fromsignals of readiness to compromise, they

attend mediations, parties talk directly to

each other in a way that litigation makes

virtually impossible, they disclose secret

positions to the mediator, they indicate

willingness to move from strongly expressed

litigation positions, they make offers to

each other and discuss alternative ways of

mending business relationships. Insurers

and defendants apologise and empathise

with injured claimants and often move huge

distances from their on-the-record positions

to achieve risk-moderated solutions. None

of this would happen if the parties did not

feel safe in doing so. There is no doubt that

this is a process which works and delivers

results.

But we need to be clear both about the

present situation in law and whether it needs

amendment. The imperative to do so lies

in the requirement of the EC Directive on

mediation that the UK legislates by 2011

to implement the relatively minimum

standards it sets for cross-border mediation.

With huge pressure on the legislative

timetable, mediation is unlikely to get much

Parliamentary time, especially if the topic

is limited to the minority activity of cross-

border mediation. The changes we make

to meet the Directives requirements almost

certainly will be applicable to mediation

generally.

While we may already just about meet

the Directives requirements on quality,

education, and enforceability of mediated

outcomes, and while we may feel resistant

to suspending limitation periods during

mediation (mainly because we fear satellitelitigation about when a mediation starts and

ends), we cannot escape consideration of the

reform of mediation confidentiality. Article 7

(headed Confidentiality of mediation) reads:

1. Given that mediation is intended to

take place in a manner which respects

confidentiality, Member States shall ensure

that, unless the parties agree otherwise,

neither mediators nor those involved in the

administration of the mediation process

shall be compelled to give evidence in civil

and commercial judicial proceedings or

arbitration regarding information arising out

of or in connection with a mediation process,

except:

(a) where this is necessary for overriding

considerations of public policy of the Member

State concerned, in particular when required

to ensure the protection of the best interests

of children or to prevent harm to the physical

or psychological integrity of a person; or

(b) where disclosure of the content of the

agreement resulting from mediation is

necessary in order to implement or enforce

that agreement.

This is a very watered-down version of

what appeared in the previous version of

the Directive. Mediators and providers were

previously placed under an absolute bar over

giving evidence about:

Par ty inv itat ionsorwi ll ingness to

participate in a mediation;

Anypartysstatements,admissions

and settlement proposals made during a

mediation;

Any mediator proposal for

settlement and any partys expression of

willingness to accept it; and Anydocument preparedso le ly for

the purpose of a mediation.

The earlier draft went further by providing

that any such evidence could not be ordered

by a court to be given by anyone else who

had attended the mediation (remembering

that the mediator is absolutely barred

anyway) and if offered should be treated as

inadmissible, in both proceedings related to

the mediated dispute and also other litigation.

It could only be admitted to the extent

required to implement or enforce a mediated

settlement agreement; for overriding public

policy reasons; or where the mediator and

the parties agree. It also provided that

otherwise admissible evidence would not be

rendered inadmissible simply because it was

used in a mediation.

So it not only gave absolute protection to

mediators from being compelled to give

evidence, but also restricted the content

of evidence that anyone could give about

what happened at the mediation in any later

proceedings, a far cry from the qualified

protection to mediators given as the only

component of mediation confidentiality in the

Directives final form.

Of course we have no such statutory

protection for mediators at all in English

law, merely a contractual undertaking by the

parties not to call the mediator or mediation

provider as a witness. So we need legislation

to achieve even this limited requirement.

But do we need more, and is the current

law clear enough? I suggest that we need

to establish a higher standard and greater

clarity.

Recently judges have either felt able or

been invited to consider what happened at

a mediation, something which is unsettling

for mediators who are used to assuring

parties and their advisers at the outset

of the process that what happens at the

mediation is off the record and not available

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

qualify this by saying that it is unavailable

unless you all consent to tell the judge what

happened, reflecting that the parties have

a joint, but not a several, right to waive

without prejudice privilege. In several

recent cases this seems to be what happened.

For instance in both Chantry Vellacott v

Convergence Group and Malmesbury v Strutt

& Parker, the parties told the judge what they

had offered each other during the mediation,

enabling the judge to find that one of them

had been unreasonable in his stance. On

the other hand, in Reed Executive v Reed

Business , the court would not go behind

without prejudice correspondence when

considering a costs award, and in Cumbria

Waste Management v Baines Wilson, the

judge would not permit solicitor defendants

to have access to mediation material

generated at a previous mediation to settle a

dispute between the claimants and DEFRA,

because DEFRA declined to waive privilege

or their contractual right to confidentiality

of the process. In Brown v Rice and Patel,

the judge held that he was entitled to

look at what happened at a mediation to

decide whether settlement terms had been

agreed, even though one party and indeed

the mediation provider objected, and even

though it was clear that no written settlement

agreement had been produced, as required

by the mediation agreement.

No one wants there to be confusion about

what contractual confidentiality and without

prejudice privilege mean in relation to

mediation. It will unsettle what is a very

useful process. On the whole there has been

no difficulty about it, but harder cases are

emerging which call for clarification of the

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

court receive evidence to support or defeat

a claim by a party that their lawyer under-

or over-settled a case in mediation? Can a

third party claimant get access to mediated

settlement discussions if the parties object,even if affected by the level of settlement (such

as a sub-contractor affected by settlement

between the client and main contractor, or an

earlier lawyer being sued for the difference

between the settlement figure and some

objectively higher appropriate level)? How

precisely may a party, who settles on the

basis of a material misrepresentation made

during a mediation or subject to a threat,

unstitch that settlement? Is it possible to sue

a negligent mediator when this would involve

revealing what the mediator did behind the

veil of confidentiality? Is there a distinction

between contractual confidentiality which

normally is no bar to court investigation

and without prejudice privilege, and if so

how do they interact?

Such problems have already emerged for

consideration in the US and Australia, in

particular, and some fine distinctions are

being drawn. The Uniform Mediation Act in

the US suggests hearings in camera to sort

out such issues before mediation material

enters the public domain by judicial decision.

This may be a sound approach here too,

perhaps invoking the power of the court

under CPR 39 to order private hearings.

The debate sparked by the EC Directives

rather limited aspirations is one we now

need to develop for these wider reasons.

The regulatory debate

Another key issue facing the mediation

community is how it should be regulated.

There is a pressure felt amongst the mediation

community to set some standards in place in

order to discourage cowboys leaping on to

a new market bandwagon, and to encourage

good practice rather than bad practices so as

to create a way for buyers of services to know

that they are dealing with someone of at least

reasonable quality.

Although there are limited instances of real

problems with this flexible, non-binding

process, the Civil Mediation Council (CMC) is

aiming to set both basic standards of practice

requirements for individual mediators and

mediation organisations which register with

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

they meet the standards set, and (b) will

have to commit to follow a Code of Good

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

independent public complaints scheme. It

is a three-part system of supervision that,

while being light touch, aims to ensure that

reasonable minimum requirements are

followed by anyone claiming to operate in a

professional way. The CMC will encourage

courts and public sector bodies particularly,

to ensure that they use registered mediators

or organisations, if they are inviting tenders

for services or otherwise using mediators or

organisations delivering mediation services.

In addition to commercial mediation, this

scheme will be open to workplace providers

of mediation, a development stimulated by

recent employment legislation reform.


5/21

08 the barrister

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Fusion: A threat to independence in CriminalJustice

With legal-aid fees plummeting, the Crown Prosecution Service and defence solicitors using more

and more employed in-house advocates instead of independent barristers, with judges refusing to

allocate serious cases to Queens Counsel, and the morale of the independent criminal Bar at an all-

time low because so many are not even earning a living, Sir Ivan Lawrence QC answers those who

think that the resulting, and seemingly inevitable, moves towards fusion, (barristers and solicitors

becoming a single category of lawyer), will be good for the criminal justice system.

To begin with, the casefor fusion has nothing

to do with the quality of

criminal justice: it is about

money. Yet the idea that

fusion would result in a

considerable saving of money to the tax-

payer, is ridiculous. Solicitors, who have

higher overheads, charge far higher hourly

rates: indeed they employ barristers in the

magistrates courts because it is cheaper for

them than having to appear themselves.

Furthermore, barristers who necessarily pay

their own overheads and pensions would,

if they joined as employees the Crown

Prosecution Service or any other government

legal organisations, have them paid at the

taxpayers expense - plus health provision

and annual holidays with pay!

Secondly, the assumption that, having both a

solicitor to prepare a case and a barrister to

present it, unnecessarily doubles the work

and therefore the cost of criminal trials, is

also nonsensical. Two jobs would still have

to be done by two people, whether they are

solicitors or barristers. Complicated cases

involving a number of witnesses, cannot be

both prepared and presented at the same

time by one person. The former requires

investigation, tracing of witnesses, taking

of statements, and getting them and their

exhibits to court: the latter requires learning

and marshalling the facts, being up to date on

the law and planning and delivering effective

advocacy. Furthermore, a solicitor running

a business cannot suddenly drop work that

he is doing to run off to court to present

someone elses case: and adjournments dueto the unavailability of the advocate are very

expensive to the system and harmful to the

representation and standing of the firm.

Thirdly, in-house barristers employed by

a solicitors firm (or even by a government

organisation) to carry out advocacy alone,

sometimes face another problem. The

employer requires him (or her) to do a certain

amount of work in a certain way within a

certain time as a dedicated fee-earner, and

having in mind the loyalty to his firm (and

his job), the barrister has to comply. The

self-employed barrister, on the other hand,

owes allegiance to his client and to the court:

he owes no professional allegiance to an

employer telling him what action would be

in the best interests of the firm, nor does

he have to concern himself with whether

his employer is making enough money or

has available the required resources. His

independence and commitment to his client,

is of paramount importance to the integrity of

our unique system of justice.

Fourthly, you would not want your family

doctor, or another doctor in the same general

medical practice, to carry out your brain

surgery, and you would want an independent

consultant, skilled through experience in

his chosen field of work, to advise on the

prognosis of a complicated illness: the self-

employed barrister similarly provides the

independent expertise. Like surgeons and

medical consultants, barristers are trained

specialists particularly skilled at performing

their tasks. They are not allowed to take work

that they are not equipped to perform. Theyhave to undergo continuing legal education.

They are ceaselessly monitored by judges,

instructing solicitors and their colleagues.

So, fifthly, one very important advantage of

the dual profession is that everyone charged

with crime, however lowly his condition, can

have access to the finest defenders practising

at the Bar. He does not have to be represented

at court by a member of the solicitors firm:

he can select from the ranks of available

counsel at large. A fused profession would

hardly be able to avail itself of that degree

of choice.

Sixthly, in the real legal world of increasing

volumes of paper-work and of the appeal

courts relentless changes to complicated law,

the judges, in order to conduct their cases

as speedily as possible, have to rely on both

the experience and the integrity of the Bar.

Inexperienced in-house part-time advocates

inevitably slow the administration of justice

and add to its expense. There is already

plenty of anecdotal evidence that all is not

well with criminal trials where the accused

is represented by an inexperienced solicitor

advocate.

Seventhly, our judiciary has earned

a reputation over the years for being

independently-minded and not beholden in

any way to the wishes of its paymaster, the

State. Much of that tradition of independence

stems from the fact that the higher judiciary

has always been drawn and is still mostly

drawn- from members of the independent

and highly trained Bar. That is not to say that

judges chosen from solicitors or the employed

Bar are not capable of independence, of

course they are: but life teaches us that it

may be difficult to live down a life-time of

obedience to a superiors wishes.

It is surely clear that these many

advantages of our present dual

profession of the law have immense

value not just for the integrity and

efficiency of the criminal justice

system, but also for the important

perception of it as being fair, by thosewho have to use it and submit to its

judgements.

The public impression, carefully fostered by

some of the media, is that barristers are all

fat cats with their snouts in the trough.

Nothing could be further from the truth,

for the publicly-funded Bar. And if more

and more young barristers, with their high

student loans to repay, and their already

hopelessly inadequate legal-aid fees, halved

by their overheads of clerks fees, chambers

rent, pensions, insurances, travel costs,

hotels, books, and equipment, are driven

away from the self-employed Bar to work

as full-time employees, the British criminal

justice system, and its reputation in the world

for independence, will suffer. If more senior

barristers are driven into accepting employed

status for the sake of their economic security,

the situation will be even worse.

It is quite obvious that the public, the

government, members of Parliament and the

civil service, who between them guide our

futures, have little idea of how much would

be lost by fusion. That is because there has

been no public debate: we just seem to be

drifting very quickly in that direction.

I can say, with the experience of 23 years in

Parliament, that those who have power over

us do not always wish to have contentious

matters brought into the open for public

discussion. Certainly those of our masters

who are enthusiastic for fusion, but who

have never mentioned the word in their

dealings over the legal-aid scheme, would

prefer to keep their silence.

All the more reason, for there to be a

public debate and for that to start

immediately. Before the independence

which is the glory of the British

criminal justice system completely

disappears.

09the barrister


6/21

10 the barrister

course have been reviewed by no

fewer than four working parties,

each chaired by an eminent

udge, practitioner or academic: Bell (2005);

Neuberger (2007); Wilson (2008) and finally

Wood. The standards and quality of all BVCs

have, moreover, been monitored frequently,

via detailed annual reports from providers,

and by Bar Council (now BSB) appointed

external examiners and panels.

According to Wood, though, there remained a gulf of misunderstanding.. between the

practising Bar and the BVC. The impression

persists among many practitioners that the

BVC is flawed in most or all of the ways

described (above)

Faced with all this Woods approach was

robust, businesslike and fair, and its outcome

could best be characterised as tough love.

On the tough side are its recommendations

that:

The BSB should introduce a

challenging aptitude test, covering analytical

and critical reasoning and fluency in written

and spoken English, which all those wanting

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

Professional Training Course) from 2010

onwards will have to pass in order to qualify

for entry.

Theknowledgeareasshouldbe

tested by a combination of multiple choice

and short answer tests: the former set and

marked by the BSB; the latter set by the BSB

but marked by the providers

The pass mark for these tests

should be raised to 65

Those who fai l these tests ( or any

other summative assessment) should be

allowed only one re-take.

More loving are its conclusions that:

Therationaleforthecourseremains

sound. Wood reaffirms that its sole function

and purpose..is to introduce prospective

barristers to the practical knowledge and

skills they will need to provide a high quality

professional service to their future clients.

It therefore not only rejects the idea that the

course ought necessarily to be accredited

towards Masters level degrees, but warns

that, where particular providers decide that

it will do so, this should not detract from

(its) essential character as a practical trainingcourse for the profession.

Thecontentofthecourseislargely

fit for purpose (though it recommends the

introduction of a new compulsory module on

Resolution of Disputes out of Court and that

Professional Ethics and Conduct should be

separately taught and assessed).

Thequal ityo f teach ingandother

resources are satisfactory

The academic entry threshold

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

has to be set in the context of the new aptitude

test, and the removal of any BSB discretion to

allow students who have not obtained a 2(ii)

to take the course.

Taken as a whole it is a formidable

achievement and a great credit to the working

group which conducted the review and the

small BSB team which supported it.

It manages to distinguish between concerns

which are real, provable and serious;

and those which are based on prejudice,

misguided aspiration, or hearsay; or which

simply reflect the gulf of misunderstanding

noted above

Its recommendations are commensurately

measured, sensible and convincing. They are

consistent with both the proper educational

aims and objectives of a vocational stage

programme for the Bar; and with the

professions responsibilities to ensure the

widest possible access and diversity.

It was completed in a remarkably quick time

and this despite its having included a specially

commissioned survey among students taking

the BVC. All stakeholders were thus spared

the blight, analysis paralysis and consultation

constipation which afflicted the Legal Practice

Course over the seven or so years that it took

the Law Society to complete the TrainingFramework Review.

It has therefore strengthened the BSBs claim

to be an effective and independent regulator,

- something which will almost certainly be

of great benefit to the Bar after the Legal

Services Authority starts work on 1 January

2009.

On the other hand, though, there are, of

course, limits to what a review of this kind,

and at this stage in the history of the BVC and

the Bar itself, could possibly have achieved.

Firstly, Wood notes that (w)e have the

impression that the profession has become

disengaged from the course which trains its

recruits.In truth the course should belong

to the profession as much as it belongs to the

providers. If practitioners were more willing

to take responsibility for it they would, we

suggest, be more satisfied with it and there

would be fewer complaints. Some of the

reviews key recommendations anticipate

and will require a significant level of active

support from the practising bar. This cannot

be guaranteed, and it remains to be seen to

what extent it will be forthcoming.

Secondly, there can be little doubt that over

the next few years there will be severe

pressures on the profession as a whole, but

most especially on the junior bar, and thus the

availability of tenancies and pupillages. These

will come from a number of directions: the

Carter reforms (and the further restrictions

on public expenditure, which are inevitable

from 2010 or so onwards); the Legal Services

Act, and the general economic climate.

Solicitors and others (including CPS

caseworkers) could well undertake an

increasing proportion of advocacy in the

lower courts, while an increasing proportion

of qualified barristers could be working

from Legal Disciplinary Partnerships or

Alternative Business Structures and the

professions centre of gravity could shift

markedly from independent to employed

practice.

In these circumstances, it seems almost

inevitable that in the not-too-far-distant

future the Bar will once again have to

review its vocational stage training, and

perhaps even to consider whether a separate

vocational stage for barristers and solicitors

is any longer justifiable.

In the meantime, however, Wood has provided

a clear, sound route map for the BVCs further

development; has (probably) enabled it to a

period of relative (and much needed) stability;

and has given key stakeholders (most notably

students and practising barristers) as much

reassurance as to is standards and fitness for

purpose as they could reasonably expect.

Richard de Friend

Chair Academic Board

Senior Academic Registrar

Director College of Law Bloomsbury

11the barrister

p.1


7/21


Legal globalization: an expanding picture

While the picture might be expanding, is a uniformity of legal practices spreading, thereby

contracting the diversity of law worldwide? Building on the last issue of The Barrister, we continue

our investigation into legal globalization and consider in particular the effect different jurisdictions

are having on each other.

By Alistair King of Justis Publishing

L

eaving a slight, almost

imperceptible but presumably

deliberate comic pause in the

phrase dreadlocks and their

liking of cannabis, Lord

Bingham described just two ofthe many aspects of multiculturalism and

multi-nationalism that have challenged but

often enriched British law and its evolution

over the decades and centuries.

In this case it was Rastafarianism but, as he

went on to illustrate in his keynote address

at Novembers Bar Conference, there are

numerous examples from our long and

sometimes inglorious history, from 1290s

edict to Jews that they should change orgo home to twentieth-century debates on

whether Sikh men should be exempt from

crash helmet laws and workplace uniform

regulations.

Like the English language itself, English lawhas evolved and to an increasing extent, the

meaning of which I hope will become clear

devolved. Diverging away from other nations

legal systems in the Middle Ages, it then put

itself about in the Eighteenth and NineteenthCenturies as its British masters set upon

their attempt to colonize the planet. Other

European colonial powers were no different.

So has their influence effectively brought

about a new convergence of laws and legal

practices? And whats the state of play ina Twenty-first Century dominated by the

threats and opportunities presented by

emerging economies?

Bordering on agreement?

In the last issue of this journal we looked at

the globalization of the law from a practice

area point of view. Establishing the germs of

a consensus in the academic and professional

community, we showed how different areas

of commercial law, and even family andcriminal law, were influencing practitioners

work across the globe. Though we wont

depart from further consideration of those

different areas of work, in this issue we will

also expand on the jurisdictional dimensionof the story.

We investigate, among other things, how

global trade might have made it inevitable

that laws come together; how the internet has

influenced the process; if some legal systems

are insurmountably incompatible; and we

continue to consider how the phenomenon

is affecting peoples work, their research and

the type of material they need to access.

An LPC graduate with experience in

practice, Rory Campbell has worked in Justis

Publishings editorial department since 2001.

Now its manager, he overseas the detailed anddiscerning process of putting raw law reports

and legislation through the electronic mill.

Ensuring that they are intuitively searchable,

cross-referenced, indexed and compatible

with expected legal terminology, his early

days were focused on the law reports of theconstituent parts of the UK.

Despite significant jurisdictional expansion at

the company, both in its provision of full-text

case reports and in its development of theprovider-neutral JustCite citator, UK cases

remain an important part of Campbells job.

Whats changed, he says, is that in the past

four or five years hes seen a dramatic and

tangible increase in the number of foreign

cases that are being cited in our courts. Theinternet, he tentatively suggests, might even

be the cause of this increase, not just the

solution to accessing this material.

When in Rome

The World Wide Web, it has to be said, hadless impact on the propagation of Roman law

at the time. But in recognition of its historical

significance, we should have a quick look at

this ancient jurisdiction.

A specialist in comparative legal history andRoman law, Andrew Lewis is a professor

at University College London. Though his

institution subscribes to them, Justis and

JustCite which go back to 1163 sadly

cannot boast case law from the First Century AD, the era we discuss. But, perhaps

surprisingly, with statutes being few and

far between, some of the methods by which

the remarkably sophisticated Roman legal

system operated bore some resemblance to

our own. Though case law precedent was notauthoritative, jurist advice like common law

decisions was used to build up the law.

Lewis highlights the variety of officials that

would have presided in court. Each with

a different level of authority and powers of

enforcement, the areas of law they dealt with

and the representatives they gave audience

to are analogous to today an example Lewis

cites is that of a merchant supplying cornfrom Africa to Rome and the associated legal

wrangling. Containing the fullest statement

of the law, the codification of Justinian in

the Sixth Century preserved the writings of

earlier jurists, says Lewis, while reportssurvive from provinces such as Egypt. But,

inevitably, much of it has been lost.

So what have the Romans ever done for us?

On the continent the whole structure andlanguage of private law is deeply permeated

with Roman ideas, says Lewis. Though its

been less influenced than other European

systems, Roman law has influenced English

law too, particularly the law of contract, he

adds.

How does the British Empire compare in its

lasting effect on the world?

Never the twain shall meet?

Isam Salah is an American lawyer. A partnerat multinational law firm King & Spalding, he

operates jointly in the companys New York

and Dubai offices and is head of its Islamic

Finance practice. Many of his transactions

involve enabling his Middle Eastern clients

to adhere to their Sharia principles, whileoperating in an essentially Western legal

setup. Local laws operate in countries such

as the UAE, Saudi Arabia and Kuwait, Salah

says, but these have been influenced over

the years by the likes of Ancient Egypt,Napoleon and, of course, the British. And its

the British or rather English system that

Salah says has become the law of choice, at

least in the commercial world where parties

can effectively choose which jurisdictions

contract laws to use.

But what of the legal compatibility of Sharia

and Western law? Well, theyre not quite as

mutually exclusive as some tabloid leader

writers would have us believe. Putting aside

criminal law, where one must considernot just how crimes are treated but whats

actually classed as a crime in the first place,

commercial law can be adapted quite easily.

A basic tenet of Sharia is that one can neither

pay nor receive interest. This would appear

to preclude strict Muslims from obtaining

mortgages. And this is the case. However,

contracts that are effectively the same

as mortgages can be drawn up. Thoughsubstantively different, Salah explains

that they are economically equivalent, even

though some of the burden of risk is assumed

by the lender, who buys a commercial

property, for example, and then leases it

to the buyer for a period until theyve paidback an appropriate amount to acquire full

ownership.

Without doubt big differences still stand but

the trend if slow is one of moving towards

a gradual compromise.

The application of international court

decisions

Salahs company now subscribes to the

International Law Reports Online, which

Justis Publishing launched in November. Theonly publication in the world wholly devoted

to the regular and systematic reporting in

English of decisions of the international

courts, these fully searchable reports stretch

back to 1919.

Covering all significant cases of public

international law and dealing with such topics

as treaties, war, terrorism and refugees, they

are crucial for litigators practising in the

international courts.

However, rulings from these courts are also

creeping into numerous countries national

courts as persuasive precedent a point not

lost on Mark Muller QC. A senior barrister at

JustCite-subscribing Garden Court Chambersin London, Muller was on the five-year-long

Access to Justice in Afghanistan Project.

For his unpaid work on this he, and the

rest of the four-person team, won the recent

Bar Pro Bono Awards, presented by our

man Bingham following his aforementionedspeech.

Muller explains that under the UKs Terrorism

Act (2000), its very easy to ascribe charges

of terrorism to the activities of any numberof pressure groups around the world.

Preparation for such cases, he says, requires

much consideration of comparative and

international law. Muller allows that tensions

can arise as British courts are often loath

to accept international law. However, thearguments are being raised, even if theyre

not [necessarily] accepted.

Time will tell how many decisions are

followed at a national level. Given the global

political and economic upheavals weregoing through, my hunch is that it will be a

significant proportion. Proof, perhaps, will

be offered by JustCite, which from later

this year will index and cross-reference the

International Law Reports against nationalcases and journal articles from an expanding

range of jurisdictions, currently including

England, Scotland, Ireland, Australia, Canada

and Singapore.

Of course in the international courtsthemselves theres no debate on their

admissibility.

Professor David J. Bederman lectures in

public international law at Emory University

Law School in Atlanta. I mix teaching withadvising in private, he says, and he is often

called upon for the Appellate Bar and US

Supreme Court. It was while litigating at

the latter on the issue of foreign sovereignty

immunity that he successfully cited a casefrom the International Law Reports.

But heres the rub: this was before their

digitization, so Bederman had to rely on thehard copies. I didnt begrudge going through

them book by book, index by index, becausewe won the case, he says, but Ill sure be

glad in the future that you can do intelligent

Boolean searches and get the same results.

Now, of course, he can.

So why should a law firm subscribe? Becausethey could save an associate 27 hours in

a case where it matters is Bedermans

analysis, based on his estimate that the 25 to

30 hours I spent going through volume after

volume would be reduced by an order ofmagnitude.

Continental divide: closing the gap

Legal research isnt all about time-saving

but it certainly helps, particularly if your

area of law is influenced by recent European

legislation and theres precious littledomestic precedent on which to support

your arguments in court. In many branches

of commercial law, particularly intellectual

property and competition law, this is all

too often the case and English courts are

beginning to recognize this, with manyof them allowing precedent from other

European national courts.

Such a problem arose for Jane Wessel,

a litigating solicitor at London law firm

Crowell & Moring. Last year she representeda company who claimed to have been

overcharged by a carbon brush manufacturer

that was found to have been part of a Europe-

wide price-fixing cartel.

Seeking damages for her client through the

English courts, Wessel didnt at the time have

access to Caselex, a new service distributed

by Justis Publishing that solves the problem of

easy access to other member states national

court decisions by providing a searchabledatabase of case summaries in English.

Wessel eventually found the European cases

she needed to fight her corner but Caselex, to

which she has since subscribed, could have

made things much simpler.

Previously I used the European Commission

website to search for cases, she says, but

you cant enter a search and scan through to

see whether you need to refine it for future

searches.

However, she adds, with Caselex "...

competition law, appeals, cases on

jurisdiction under the Brussels regulation...

its all so easy to find, so youre confident that

youve completed your search.

Orient hearing

So what of the future? One of the big

questions is China. In the aftermath of

the Cultural Revolution, the country had

effectively no legal system. Britains ChinaLaw Council was set up by the Bar Council

and Law Society in the late 1980s to providepractical training in the UK for a fledgling

base of Chinese lawyers. Still continuing that

drive, the council also provides a network for

practitioners to exchange ideas and pursueopportunities in both countries.

Adrian Hughes QC of 39 Essex Street

Chambers is the Bars joint Chairman of the

council. The industrial powerhouse mayhave a newly developing legal system but

it has a 1,500-year tradition of mediation

compared to our more recent adoption over

the last 20 years, says Hughes, so its a

two-way educative process. In the past five

or 10 years, our mutual collaboration hasbeen viewed by practitioners as increasingly

relevant to both sides, he adds.

Though its legal system is codified, the Chinese

government has a strong commitment to law

reporting. And the decisions of its courts arebecoming of increasing interest to Western

courts. A new database, iSinoLaw, has sprung

up to cater for this and the concept is met

with enthusiasm by Hughes. But, as we wont

do justice to the service or to Chinese lawitself in the penultimate paragraph of this

short article, well have to save expansion on

this for another day.

And for the closing paragraph itself? Well,

the argument must remain moot. A NewWorld Order of Law remains a distant dream

(or nightmare); but frequent use of other

jurisdictions arguments and systems could

soon be the norm.

Before j oining Justis Publish ing, Alistair King was a journalist for Building

magazine. This followed time with academic

publishers Routledge and Pickering & Chatto.

Along with The Barrister, he has written for

the Student Law Review, Your Witness andthe Australian Law Librarian, and he has

collaborated with the Irish Times. Articles

from these and more can be read at www.

justis.com and www.justcite.com.


8/21

14 the barrister

A new era dawns: Are we awake?

Andrew Butler, Barrister at Tanfield Chambers, considers the arrival of the Legal Services Act

and what this means for how barristers should market their expertise, and reviews his chambers

experience so far in embracing the new era.

The Legal Services Act 2007

A

mong the regulatory

objectives of the Legal

Services Act 2007 is the

need to improve access

to justice, protect and

promote the interests of

the consumer and encourage an independent,

strong, diverse and effective legal profession.

The aim is clear: the Act seeks to encourage

change in the legal marketplace, but how,

as barristers, will this affect our profession?

Will it radically alter the relationship between

solicitor and barrister? Will we see barristers

working in partnerships? One change that

is already here is that of a more accessible

legal market for consumers through the

increasingly utilised means of Public Access.

As a result, the consumer will want easy

access to information on the track record

and expertise of the barrister this must be

addressed. Are you listening at the back?

Public access to information

A Green Paper in 1987 suggested a change

in the traditional two-tier approach that

has always been adopted by the profession

in this country i.e. a solicitor instructs a

barrister on behalf of the client. The rules

subsequently changed in 2004, allowing the

public to approach and instruct barristers

directly for certain purposes. The traditional

role of the solicitor as intermediary has been

altered and in many cases the consumer will

be looking to appoint a barrister directly

resulting in an increasing public appetite

for on-demand interaction. Rather than

relying solely on solicitors advice, the

technologically aware consumers of the

21st century will seek out information on

barristers, enabling them to make educated

decisions about who their advocate should

be. The role of the solicitor is likely to remain

significant, aside from continuing to refer

their clients, they will continue to perform

essential tasks that barristers cannot, for

example, be engaged in, such as the general

management or administration of a clients

affairs. Nevertheless, the point remains

that barristers can no longer solely rely

on solicitor-driven work as the consumer

embraces the notion of direct access. Whilst

maintaining the traditional alliance with

solicitors, the Bar should properly consider

the impact of online technology on consumer

buying habits.

The Internet has enabled consumers to be

increasingly savvy in making choices. An

incredible depth and breadth of information

available on the internet means that we all,

as consumers, make informedchoices and,

as a result, simply disregard products if we

have no point of reference as to their success,

popularity, effectiveness etc. It is time for the

Bar to catch up with the trend that has been

set by other sectors and professions we

need only look at insurance, travel, finance

and supermarkets to see how advanced the

process of information merchandising has

become.

Tanfields experience

Against this background, the departure in

August 2007 of our Chambers Director

seemed to me to be a cloud with a silver

lining. Capable though he was, losing him

provided an obvious opportunity to re-vamp

chambers marketing practices and maybe

bring in some external expertise. And, while

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

old, tired website?

Of course, politely pushing for change in a

chambers meeting is, I imagine, a bit like

going out for a quiet drink in the days of press

gangs. I immediately found myself chairing

our Marketing Committee and meeting a

succession of web designers distinguishable

only by the varying levels of technical jargon

they employed. Eventually we resorted to the

tried and tested technique of asking the only

people whose language we could understand

other barristers.

Thus settled on a reputable firm of legal PR

consultants, we commissioned them to audit

chambers, identify some brand values

and think how to accentuate and articulate

those values, making us as distinguishable

as possible. After all, werent we just another

collection of jobbing barristers striving to get

work? Not quite, it seems; the audit revealed

certain strengths and weaknesses which

most of us collectively recognised, while at

the same time never quite realising we had.

How to weave these brand values into a

website? For this, we retained the services

of a niche design company who produced

two concepts for us both visually striking,

both fresh, both some way removed from

what one might often see when visiting

those of other chambers (when not dazzled

by ones opponents terrifyingly impressive

credentials). We drew on aspects of both

concepts, and two weeks later we were

shown the result. The ability of the designers

to reflect our various wishes and preferences

was enlightening and impressive; I have

seldom seen a committee of barristers

reduced to such a state of reluctant, helpless

unanimity.

The next task was selling the result to the rest

of chambers, and for this purpose we held an

open afternoon for members to come and

inspect the site (at this stage just a succession

of PDFs) themselves. This of course was for

my benefit not theirs, an insurance policy

against later expressions of dissatisfaction,

and as a precaution I arranged it for a Friday

afternoon when I was in Court. It went

swimmingly; the designers said that those

who came along were cheerful, polite, to the

point, and obviously more interested in going

out for a drink!

Utilising yet a third set of professionals

to construct the site, we harmonised the

presentational side and the technical side.

The aim was to try to think really hard about

how our clients not forgetting that this now

extends to the general public too - would

want to use our website, making it as easy as

possible for users to choose barristers by call,

experience and expertise, and highlighting

in a self-contained section those who are

prepared and qualified to accept Public

Access work. We also wanted accessible

images, with an element of wit and latitude;

I am particularly pleased that one members

dog basket (or technically, I should say, that

of his pet dog) will now adorn our pupillage

page, and that a bottle of champagne left

incongruously in a row of files introduces

forthcoming social events.

That left only the small task of collating the

members profiles and photographs. This

threw up a number of contentious issues (in

particular But why cant Diocesan Law have

its own Practice Group? and Im not really

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

cajoling, flattering, and threatening to write

them myself, they all seem to have got done.

Of course, the information that is available on

the website about an individuals expertise

and experience is just as important as the

message that the site communicates about

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

brand will, however, naturally reinforce the

consumers feeling that they are looking at

the right person for the job.

The site has recently gone live and I leave

it to others to judge the results. All I hope

is that those solicitors whom our clerks

say they can hear down the phone tapping

away in search of the profile pages of those

being put forward for potential briefs will

be pleasantly surprised by what they find.

And the cost of all this (plus a vibrant media

promotions programme which now sees our

members obtaining media space like never

before)? About half the annual salary of our

former chambers director. No disrespect to

an excellent professional like him, but I think

its money well spent.

Dont drop off

The main message, in my opinion, is that

solicitors and

barristers should

embrace the

change that the

Legal Services

Act 2007 will

and is already

bringing about.

Online technology

provides an

e x c e l l e n t

opportunity for

the Bar to promote

competition in

the provision of

services and to

encourage an

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

strong, diverse

and effective legal

profession lets

use it effectively.

Solicitors will

continue to

instruct barristers

but advances in how the consumer can

obtain information about services on offer

means that the Bar must respond accordingly

so that they can in fact reap the benefits

of change rather than shying away from

it. There is no denying that consumers are

becoming increasingly reliant on online

technology to help them make their decisions

whether it be in their choice of insurance

provider, supermarket or indeed, legal

expert. Therefore, as service providers, we

need to ensure that the volume and quality of

information about the service we provide is

in line with the requirements of the consumer

so that they can ultimately make an informed

choice.

Andrew Butler, Tanfield Chambers

www.tanfieldchambers.co.uk

31 Dugdale Hill Lane, Potters Bar, Herts EN6 2DP

T: 01707 850969 www.bradish.co.uk [email protected]

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15the barrister


9/21

Enhancing the Participation of Children in FamilyProceedings

The issue of whether or not children should have the opportunity to play a greater part in

proceedings where decisions will be made which will affect the rest of their lives is becoming the

subject of increasing debate.

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

W

ould you want

important decisions

to be taken in your

life without being

consulted? Even ifsomebody talked to you

beforehand and undertook to report your

wishes and feelings to the person charged

with the responsibility for making the

decision, might you want to meet that person

to make sure that they t ruly understand how

you are feeling? Children have views about

what they want to happen in their lives why

should we not give them the opportunity to

make a connection with the person who will

be making important decisions for them?

Put simply, Article 12 of the United Nations

Convention on the Rights of the Child states

that a child has a right to have an opinion,

to have that opinion listened to, and to have

it taken seriously; and specifically to be

provided the opportunity to be heard in any

udicial proceedings affecting him, directly or

through a representative.

The issue of whether or not children should

have the opportunity to play a greater part

in proceedings where decisions will be made

which will affect the rest of their lives is

becoming the subject of increasing debate.

In their research published in Your Shout

and Your Shout Too the NSPCC established

that a significant number of children involved

in public law proceedings would like to

have had an opportunity to go to court; and

that of those who did in fact go to court an

even greater number felt that they received

insufficient support and were not listened to;

and that a larger number of children involved

in private law proceedings would have liked

an opportunity to go to court and speak to the

judge. One of the most concerning findings

was that some children had not felt listened

to properly by Cafcass.

In Mabon v Mabon [2005] 2 FLR 1011

Lord Justice Thorpe and Lord Justice Wall

reviewed and referred to the benefit of the

tandem model of representation of children

in the English courts. Lord Justice Thorpe

went on to say that

it was simply unthinkable to

exclude young men aged [17, 15 and 13]

from knowledge of and participation in

legal proceedings that affected them so

fundamentally.

Lord Justice Wall referred to the reluctance

of the English Judge to talk to children in

private and said that

from the boys perspective it

was simply impossible for the guardian

to advance their views or represent them

in the proceedings. He would, no

doubt, faithfully report to the judge what the

boys were saying, but the case he would be

advancing to the judge on their behalf would

be (or was likely to be) directly opposed to

what the boys were actually saying.

In Re W (Leave to Remove) [2008] 2 FLR

1170 Lord Justice Thorpe spoke of the

participation of children as being a matter

of particular topical concern. The three

judges of the Court of Appeal in that case had

differing views about whether the children in

that case should have met with the judge who

decided their case, and at what point.

In his address to the UK Association of

Women Judges at their Annual Conference in

March 2006 the President said -

The question of the involvement

of children in decision making and the

representation of their rights and interests

in both public and private law proceedings

enjoys a higher policy and public profile

that at almost any other time in our recent

history.

He went on to say

it is my view that, in an effort to

ensure the welfare and happiness of children,

and to listen to their voice first hand, we

should be encouraging judges to talk in

private to children who wish to do so, trusting

the judge to retail the burden of his concerns

or any changed perception having heard the

child, whilst respecting the confidence of the

child in sensitive areas.

In the May 2008 edition of Family Law the

Voice of the Child Sub-Group of the Family

Justice Council published a paper Enhancing

the Participation of Children and Young People

in Family Proceedings - Starting the Debate.

In fact, the debate was started at an event

held at Inner Temple Hall on 20th October.Approximately 150 attended. The event was

chaired by the President, Sir Mark Potter.

There were presentations from two young

people, one who had experienced public law

proceedings and one who had experienced

private law proceedings. Mr Justice Hedley

and Anthony Douglas (Chief Executive of

Cafcass) spoke for greater involvement of

young people. Anthony Hayden QC and

Alistair Paddle, (former chair of NAGLRO)

argued for a more cautious approach. A

distinguished panel which included Mr

Justice McFarlane and Lucy Theis QC, Chair

of the FLBA, then took questions from the

floor. Highlights of the debate can be heard

on a pod cast which can be found on the

FJC website at www.family-justice-council.

org.uk. An edited typescript of the debate is

also available on the Councils website. The

FJC has received some extremely helpful

responses from various quarters. It is hoped

to publish a summary of those responses in

early in 2009.

The Voice of the Child Sub-Group does

not suggest that all children should attend

court. Nor do they suggest that those who

do attend court should be giving evidence,

except in very rare cases. Their wishes and

feelings are properly established by trained

and skilled professionals away from the

court and presented to the court in written

form. However, as the NSPCC research

demonstrates, there are a significant number

of children who feel excluded from the

decision-making process and who would

like to have a greater connection with that

process. In order to establish that connection

they need to be provided with age-appropriate

information to enable them to understand the

process and the role which they might play.

They need to have it explained that whilst

their wishes and feelings are important, they

are not necessarily determinative. When I

see children in my court I make it clear that

we cannot have secrets from their parents

and the other parties in court; and that

judges have rules they are required to take

a number of different things into account,

just one of which is their wishes and feelings.

It is my experience that children have little

difficulty in understanding such basic rules.

Of course there are challenges

we have constantly to balance the

Human Rights issues against welfare issues;

there is a significant difference

in assessing the needs and assessing the

wishes and feelings of children in private law

compared with public law;

if a child expresses an interest

in seeing the judge, there needs to be

discussion as to how this need may be met

the Enhancement paper already referred to

raises various possibilities.

It is my personal belief that Cafcass officers

should routinely discuss with children and

young people of an appropriate age and

understanding whether or not they would

wish to meet with the judge, at the same time

explaining that not all judges will be willing to

see them. In my view, and in the view of the

Sub-Group, judges should not be reluctant

to meet them. Many judges like to have a

photograph of the child in order to give a

face to the person for whom they are making

a decision better still, surely, to meet in

person? It needs to be stressed that the object

of the child meeting the judge is not to assist

the judge but rather to assist the child. There

are many ways in which this can be achieved.

It is rarely appropriate for the judge to see

the child in the presence of parents or other

parties. He can see the child in his chambers

or in the courtroom. He should do so in the

presence of another professional such as the

Cafcass Officer, the childs solicitor, the court

associate or legal adviser. It is my practice to

agree a note of what was said which can then

be shared with the other parties.

Some will find it easier than others to talk to

children. Guidance and training needs to be

introduced to assist judges in communicating

appropriately with children, which would be

of benefit to all. The members of the sub-

group would like to think that ten or fifteen

years from now judges will be routinely

seeing those children who wish to see

them. Of course, some children may prefer

the decision to be made without meeting

the judge. What is important is that the

alternatives are discussed with the child and

that he should be given the choice. This means

providing the child with the information to

enable him to understand the whole process

and then discussing it with him in order to

establish how best to meet his individual

needs. Involvement is empowering, even if

it results in the child declining to take part.

Empowerment increases confidence and self-

esteem. Refusal to meet a child who wants

to meet the judge lowers confidence and self-

esteem.

I started this article by posing some questions.

I conclude by posing another should

judges be making these sorts of decisions if

they are unwilling to meet the people they

most affect and sometimes, in appropriate

circumstances, to explain their decisions to

them?

Note: in this article children should be

taken to include young people; and judges

should be taken to include magistrates sitting

in the family proceedings court.

Nicholas Crichton is a District Judge, sitting at

the Inner London Family Proceedings Court,

a member of the Family Justice Council and

the Chair of the Councils Voice of the Child

Sub-Group.



10/21

18 the barrister

Public Inquiries - do they really work?

By Ann Alexander, formerly Senior Partner of national clinical negligence law firm Alexander Harris

Barely a week goes by

without fresh calls for a

public inquiry of some

kind. Whether these

calls arise from the

Lockerbie and Omagh

bombings or the circumstances surrounding

the recent death of a young student in Leeds,

public inquiries are seen as being the most

effective way of investigating major tragedy

so that lessons will be learned and change

will happen. After all, it is well known that

following such an event, grieving families

are intent upon discovering the truth behind

what has happened and most importantly

want to make sure that change is effected

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

similar experience.

In recent years there have been many

examples of major organisations who have

failed to carry out their responsibilities,

whether they are substantial companies or

government agencies, and often the result of

those failings is catastrophic human tragedy.

In the health care arena, for example, one

only has to ask why so many babies died in

the cardiac unit at the Bristol Royal Infirmary

between 1988 and 1995 and how HaroldShipman, the general practitioner from

Hyde, Cheshire managed to kill so many of

his patients throughout his career without

arousing suspicion?

Families call for public inquiry an all too

familiar headline following such a tragedy

but do those families actually know what they

are asking for? Michaela Willis 7 day old son

Daniel was one of the 29 babies who died at

Bristol. She chaired the Bristol Childrens

Heart Action Group and recently told me that

they didnt know what one was. Neither did

the Shipman families when they approached

me for advice about how they might have

such an inquiry after his criminal trial. But

these families know that they want answers,

and for the truth to be revealed in a totally

independent forum. And most importantly

they want complete transparency for that

search for the truth to be conducted in public

with the media present to report on the

evidence being given so that all the details

will be exposed and nothing can be hidden

away behind closed doors. After all, in spite

of a lengthy legal battle which went to the

Court of Appeal, the parents of the children

killed and injured by nurse Beverly Allitt in

Grantham had to settle for an investigation in

private with little involvement for themselves

or for journalists. And today, nearly 15 years

later, many of those parents still dont feel

that they know enough about what really

happened and why.

Whilst inevitably to some extent those

responsible will have been one or a handful

of individuals - after all it was Shipman

himself who killed his patients - it is the

exposure of failings in the systems which

is vital to identify where and how change

must take place and for the Inquiry to make

recommendations for change.

But that is all an Inquiry can do make

recommendations. They are not the law. And

it is then up to government to decide whether

it accepts them and when and how to

implement them. And there lies the problem.

In a series of reports following the Shipman

Inquiry, Dame Janet Smith made hundreds

of recommendations for sweeping changes

across the systems in which general

practitioners operate to close all the loopholes

Shipman had exploited. Writing in her first

report published in 2002, Dame Janet said:

"I hope to be able to make recommendations

which will seek not only to ensure that a

doctor like Shipman would never again be

able to evade detection for so long, but also

to provide systems which the public will

understand and in which they will have well-

founded confidence."

But even though the government

formally accepted very many of those

recommendations, they have still not been

implemented. Recently, nearly four years

since the publication of Dame Janets sixth

and final report, a report from the Healthcare

Commission says more work is necessary

to ensure all concerns are picked up,

investigated and, where appropriate, action

is taken.

And this is by no means an isolated example.

There have been 70 public inquiries into

child abuse cases in England and Wales,

producing thousands of recommendations.

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

old Victoria Climbi, which was itself followed

by another far reaching Inquiry under Lord

Laming.

A number of reasons might be put forward asto why this might be the case. It is beyond the

brief of an Inquiry Chairman to make sure

something happens after his or her report is

published and government ministers who do

have that responsibility move departments.

In March 2006 when Harriet Harman M.P.

was Minister of State for Constitutional

Affairs she went to Hyde, Cheshire where

Shipman practised as a GP to talk to some of

the families about how her department was

implementing the changes to the Coroners

system but shortly afterwards she became

Deputy Leader of the Labour Party and she

had to pass the responsibility to someone

else. That is what civil servants are there for

but the families believe the impetus has been

lost and little has happened.

And is that good enough?

In the course of making a documentary

recently for Radio 4 about how such Inquiries

work,

I spoke to a number of people with

considerable experience of public inquiries

and I asked whether there needs to be a

change in the way in which the Inquiry

system operates.

Neil Garnham QC was Leading Counsel

at the Climbi Inquiry and told me that

there needs to be a follow-up process. That

process should, he says call to account

the government departments or the local

authorities or whoever it is, to ensure that

they have done what has been expected of

them and that needs to be a refinement to the

process of some inquiries.

The idea is supported by Richard Lissack QC,

who has been involved in nine inquiries and

is the editor of a forthcoming book on the

system. It would be an extremely good idea

to build into the inquiry process the idea of

someone being charged with seeing through

the recommendations for change. This would

ensure it doesnt just sit on a shelf for six

years gathering an ever thicker collar of

dust.

At present there is no procedure for anyone

to take responsibility for making the changes.

And of course because the media spotlight

has died down, there is regrettably an

assumption on the part of many that the

changes have in fact been implemented and

the failings have been fixed. Theres no doubt

that the process has a beneficial effect on

cultural change; it does inform the public.

And whilst it has to be up to government

to decide which recommendations it

accepts, what is the point in having a

Barrister Magazine issue 39

Documents

Transcript of Barrister Magazine issue 39