DNA ON TRIAL

The Government recently consulted on

proposals to expand police powers

further, by allowing police to take DNA

from those arrested for non-recordable

offences, which would include, for

example, littering and minor traffic

offences. It is our view that this is

disproportionate to the aims of identifying

a person and of confirming whether or

not a person was at a crime scene.

By Professor Sir Bob Hepple QC, FBA,

of Blackstone Chambers, Chairman of

the Nuffield Council on Bioethics

PERSONAL MITIGATION

This study examined the role of

personal mitigation in sentencing in the

Crown Court. The topic is important

because decisions about mitigating

and aggravating factors actually define

the detail of any sentencing framework

grounded in proportionality. It is the ways

in which sentencing practice deviates

from the principle that the punishment

should fit the crime that constitute the

interesting penological questions.

By Dr Jessica Jacobson and Professor

Mike Hough

CPD: HAVE WE BEEN HOODWINK?

WHY CPD NEEDS REFORM AND LESS

REGULATION

Many barristers were taken a bit by

surprise when the implications of the

Access To Justice Act hit home to

the mass of our members and that

regulatory dinosaur called ‘Continuous

Professional Development’ (CPD) rose

its “ugly” head - as far as some, mainly

older, members were concerned.

By Phillip Taylor MBE, Abbey and

Richmond Chambers

3

the barristerISSN 1468-926X

PRICE

£3.0011th January 2008 - 19th March 2008

Features

Editor: Nigel Simmonds0870 766 2715email: info@barristermagazine.com

Publishers: Media Management Corporation Ltd

Publishing Director: Derek Payne

Design and Production: Alan PritchardCambridge Printing Park Tel: 01223 423000

#35

p.18

The issue of quality assurance has become one of the most important issues in professional regulation. Clients’ expectations are changing. Consumers are more willing to challenge poor service and have a greater tendency to question professional opinion. They want to know wheth-er their lawyer is competent at what he or she does. In this article we seek to outline the Bar Standards Board’s (BSB) commitment to qual-ity assurance and to explain why it is a priority. We will also describe the way in which the BSB proposes to address this question and how it fits with other initiatives that are being carried on by other bodies.

Barristers have a vital role in the justice system. Courts rely on barristers to be up to date in their knowledge of the law and to be competent advo-cates. Clients rely on the advice and services that they receive from barrister because it can affect their rights, liberty, family and financial position.

The BSB must en-sure in the public interest that barris-ters are performing to a consistently high standard.

Research that the BSB has under-taken makes it clear that most cli-ents and solicitors rate very highly the service that they obtain from the Bar. But this is not a reason for complacency. Nor does the BSB con-sider that the old view that the market sorts out the best performers is neces- p.38

News

Raising the Bar: the importance of quality

HILARY TERM ISSUE

ESSENTIAL READING FOR BARRISTERS

www.barr istermagazine.com

MARK STOBBSDirector of the Bar

Standards Board

p.19

Beyond naming and shaming

Welcome for Court of Appeal result

Est. 1999

2008 Bar chairman sets out visions for

barristers to compete in reformed legal

services marketTimothy Dutton QC, who took over as Bar Coun-cil Chairman on 1 January, set out his agenda for the Bar in his inaugural speech to the 2007 Bar Council, by calling for barristers to compete in the reformed legal services market. He said that regulation of the profession in the new legislative climate would create opportuni-ties for the Bar, at home and abroad: “In 2008 I want every member of the profession to know the important fact; that the Bar Coun-cil works in their interests across all ranges of discipline. A number of steps will be taken to strengthen ties and to ensure better communi-cation to the profession of what we are doing. These will bind together Circuits, Specialist Bar Associations, the Bar Council and individual bar-risters with stronger lines of communication and reporting, maximising our use of new technology in pursuit of this. “My job is to promote the Bar and our system not just at home but internationally. All of us are operating in an international market with Eng-

lish law as an attractive option in commercial disputes. In criminal law there is an increasingly international aspect to the work, and in family also. I intend to promote the values and skills of the Bar as advocates, arbitrators and mediators abroad.” The Legal Services Act 2007 would also present an opportunity to regulate advocacy more widely: “I have little doubt, as it becomes possible for advocates to choose by whom they are regulated, that the Bar Council (with the BSB functioning independently in the decisions it makes under Section 29 of the Legal Services Act 2007) will become the preferred regulator of barristers and many senior solicitor advocates. We have a his-tory of skilled regulation of advocacy through regulating the Bar. That regulation has enjoyed public confidence and has received repeated praise from the Ombudsman. We are cheaper than the Solicitors Regulation Author-ity – by a massive degree. Our voice is strongly heard and respected in Parlia-ment, the press and wider public. Why

10

29

p.6

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03the barrister

As readers of this magazine

will know, bioinformation

evidence is highly influ-

ential in determining the

progress and outcome of a

criminal prosecution. Posi-

tive matching of a fingerprint or DNA sample

can persuade many defendants to plead guilty.

And research in Australia has found not only

that cases with DNA evidence are more likely

to reach court, but also that it assumes great

strength in influencing jury decisions, with

juries 33 times more likely to convict where

prosecutors produced DNA evidence.

The focus of public concern, however, has

been on the use of bioinformation earlier in

the criminal justice system – on police pow-

ers to take DNA and store both the samples

themselves and the resultant DNA profiles. In

England and Wales, DNA can be taken, with-

out consent, from any person arrested for a

recordable offence. The samples are kept and

the DNA profiles are stored permanently on

the National DNA Database. The UK now has

by far the largest forensic DNA database in

the world per capita, with its 4 million sam-

ples representing six per cent of the popula-

tion.

There is no doubt that DNA evidence is an

extremely valuable tool for detecting and

prosecuting offenders. In 2005–2006, DNA

samples from suspects or volunteers were

matched with around 50,000 samples found

at crime scenes. The crime detection rate in-

creases from 26 percent to 40 percent when

DNA evidence is available.

However, the establishment of the National

DNA Database and subsequent extensions

to police powers were effected without any

meaningful public debate. It was for this rea-

son that the Nuffield Council on Bioethics, an

independent body, decided that a critical ex-

amination of the subject was needed.

The Council appointed a Working Group in

2006, which included members with exper-

tise in law, genetics, philosophy and social sci-

ence. As part of the inquiry, the Group held a

public consultation.. The responses revealed

a wide range of views, from those who whole-

heartedly welcomed the expansion of forensic

databases, to those who viewed the increase

in police powers with deep suspicion.

The Council published its conclusions in a re-

port, The forensic use of bioinformation: eth-

ical issues, in September 2007. It discusses

issues surrounding the police use and stor-

age of DNA, the scientific robustness of DNA

profiling, the use of bioinformation in court,

and governance of forensic science services

in the UK.

Although fingerprints are more commonly

used by police, the taking and retention of

DNA is seen as far more sensitive because

of the additional information can be derived

from a person’s DNA. For this reason, par-

ticular attention is paid in the report to the

forensic use of DNA.

Some of the Council’s conclusions and recom-

mendations are summarised below.

Ethical values and human rights

The protection of the public from criminal ac-

tivities is a primary obligation of the state. It

is also necessary to protect certain fundamen-

tal ethical values, such as liberty, autonomy,

privacy, informed consent and equality. The

Working Group broadly endorsed a rights-

based approach, which both recognised the

importance to human beings of respect for

their individual liberty, autonomy and privacy,

and the need, in appropriate circumstances,

to restrict these rights either in the general

interest or to protect the rights of others.

The principle of ‘proportionality’ is at the

heart of the recommendations in the report.

This means that any interference with legally

enforceable human rights, such as the right to

a fair trial, the right to respect for private and

family life, and the right to equal treatment,

must be justified by the state, and evidence is

needed to show that it is proportionate to the

need to fight crime.

Scientific reliability

The science and technology of DNA profiling

is increasingly robust and reliable. However,

problems can occur with deliberate or acci-

dental contamination of crime scene samples,

misinterpretation of mixed samples (those

originating from more than one person), and

mistaken interpretation of partial profiles.

Our recommendations regarding the use of

DNA in the criminal justice system are de-

signed to reduce the risks of mistaken identi-

fication resulting from (relatively rare) cases

of flawed science, and the (more frequent)

failure of experts to present the scientific

evidence.in ways that can be properly under-

stood by legal professionals and juries.

The use of DNA in criminal investiga-tion

Collecting DNA

The Government recently consulted on pro-

posals to expand police powers further, by al-

lowing police to take DNA from those arrest-

ed for non-recordable offences, which would

include, for example, littering and minor traf-

fic offences. It is our view that this is dispro-

portionate to the aims of identifying a person

and of confirming whether or not a person

was at a crime scene. Suspicion of involve-

ment in a minor offence does not justify the

taking of bioinformation without consent.

We would like to see the police instead put

more resources into the collection of DNA

from crime scenes. At present, fewer than 20

percent of crime scenes are forensically ex-

amined.

Retaining DNA

The police can permanently store DNA on the

National DNA Database even if the individual

DNA on trial

By Professor Sir Bob Hepple QC, FBA, of Blackstone Chambers, Chairman of the Nuffield Council on

Bioethics

04 the barrister

The barrister magazine cannot accept responsibility

for information supplied by other parties, views

expressed may not necessarily be that of

the editor or publishers.

is later found to be innocent. There are per-

sonal implications for these individuals, such

as an increased chance of being involved in

a criminal investigation, anxiety about being

associated with a ‘criminal’ database, and

loss of privacy.

The number of profiles on the DNA Database

has doubled in recent years, yet the number

of crimes solved where DNA evidence played

a role has stayed more or less the same.

Some believe that this is because the people

now being added to the database are unlikely

to commit the type of crimes for which DNA

evidence is relevant.

We recommend that the police should only be

allowed to keep the DNA of people who are

convicted of a crime. The exception would be

people charged with serious violent or sexual

offences, whose DNA could be kept for up to

five years. These changes would bring the

law in England, Wales and Northern Ireland

into line with that in Scotland.

Volunteers

Biological samples and DNA profiles can

only be taken and retained from witnesses,

victims and volunteers if they give their con-

sent. However, once consent is given, it can-

not be later withdrawn. We recommend that

volunteers should be able to have their DNA

removed from the National DNA Database

at any time without having to give a reason.

Ideally, volunteers’ DNA should not be stored

at all beyond the conclusion of the relevant

case.

Children

There are around 750,000 under-18s on the

National DNA Database. The United Nations

Convention on the Rights of the Child re-

quires that special attention be given to chil-

dren in the legal system, including opportu-

nities for rehabilitation. We recommend that

there should be a presumption in favour of

removing DNA taken from children from the

Database, if requested, unless there is a good

reason, for example, if it was a very serious

offence or there is a serious risk of reoffend-

ing..

DNA evidence in court

It is vital that DNA evidence is properly in-

terpreted within the particular circumstances

of the case, and not represented as providing

definitive evidence of guilt.

Previous miscarriages of justice have high-

lighted the problem of non-disclosure of

evidence to the defence. During the pre-trial

stages, in order that a defendant has the op-

portunity to challenge a fingerprint or DNA

match, or its interpretation, it is vital that all

DNA and fingerprint evidence is disclosed

in a timely manner to both the defence and

prosecution.

There are serious doubts about the use of

statistics in criminal proceedings. We found

that scientific evidence, and the accompany-

ing statistical data, may not (yet) be properly

understood by non-experts involved in crimi-

nal proceedings, such as jurors, or even bar-

risters, solicitors and judges. For example,

the ‘prosecutor’s fallacy’ has compromised

the use of DNA evidence for a fair trial. This

fallacy suggests that the rarity of a profile is

interchangeable with the probability that the

defendant is innocent (for example the rarity

of a one in a million match produces the false

conclusion that the chance of the defendant

being innocent is one in a million).

We recommend that legal professionals

should acquire a minimum understanding of

statistics with regard to DNA evidence. Infor-

mation should also be made available to jury

members about the capabilities and limita-

tions of DNA evidence.

Other uses of the DNA Database: ethnic in-

ferencing

When DNA is collected from individuals,

the arresting officers allocate them to one

of seven broad ethnic groups. This informa-

tion has been used in research and now fo-

rensic analysts can tell the police the likely

ethnic group of a DNA sample collected from

a crime scene. The police may use this to nar-

row down their pool of suspects. However,

the practice of assigning a ‘racial type’ to in-

dividuals is subjective and inconsistent, and

genetic research does not support the idea

that humans can be classified by appearance

into a limited number of ‘races’. We recom-

mend that ‘ethnic inferences’ should not be

routinely sought, and they should be used

with great caution.

A population-wide DNA database?

Some believe that taking the DNA of everyone

at birth to build a population-wide forensic

database would assist the police whilst also

removing problems of discrimination. Howev-

er, this would be hugely expensive and would

have only a small impact on public safety. The

intrusion of privacy incurred would therefore

be disproportionate to any possible benefits

to society. For these reasons, we are against

the establishment of a population-wide foren-

sic DNA database at the current time.

Governance and ethical oversight

The current legislative regulatory structure

for the collection and retention of forensic

bioinformation is piecemeal and patchy. We

recommend that there should be a statutory

basis for the regulation of forensic databases,

which should include oversight of research

and other access requests.

The Council also suggests that an independent

tribunal should be set up to oversee requests

by individuals to remove their DNA from the

Database, and that safeguards should be put

in place regarding access to the Database by

international law enforcement agencies.

Further information about the report The fo-

rensic use of bioinformation: ethical issues is

available at www.nuffieldbioethics.org

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A4 Concepts.indd 3 3/9/2007 11:47:18 AM

06 the barrister

go elsewhere?” Mr Dutton said that: “British Justice is still held in high

regard around the world. That is why we must oppose any lowering of standards by those involved in the system - solicitors, bar-risters, judges, police, CPS, other agencies. We must also resist any attacks on or lack of investment in the system. The public will only know that something has gone wrong long af-ter mistakes are made.” A good example of this was the McCann case: “Despite the awful circumstances, I was heartened to hear public demands for good old British Justice, during the recent press coverage of the disturbing Madeleine McCann case. What was being sought was the me-thodical approach of our police, our prosecu-tors, our barristers. There was reprehensible reporting of innuendo outside of official proc-ess. This jurisdiction would have provided a well-adjudicated process, under which evi-dence is carefully tested and the issues pre-sented to an impartial jury.” He went on to show his support for binding the legal profession as a whole: “One of my principal aims for the year is to strengthen the bonds that bind us together as a profession. We are a profession of 11,500 self employed and 3,500 employed barris-ters. When I was called, we numbered in total about 5,000. The solicitors’ profession has increased by similar proportions up from about 45,000 with practising certificates when I started, to about 120,000 with them now. There is a clear need within our society for the expert help, which lawyers and bar-risters in particular can offer.” Turning to promoting the work of the Bar, Mr Dutton said: “There is a further sense in which I will be promoting the Bar – both here and abroad. Barristers are the leading-edge problem-solv-ers in the law: if you have a difficult point of Chancery Law you seek advice from a spe-cialist Chancery barrister. If you are charged with a criminal offence, you should be seek-ing the advice from and representation by a specialist criminal barrister. The reason why you go to such practitioners for advice is that they are able accurately and expertly to pre-dict, in the light of the facts and the law, how a court or tribunal will rule in a case. The knowledge and skill which comes from the Bar’s work at the end of the litigation proc-ess is what is needed before any such process

gets under way. Barristers are best placed to anticipate the outcome, and therefore advise on the appropriate response. “So I intend loudly to proclaim our expertise here and around the world. Too often one finds that a barrister has not been instructed, or instructed early enough, or that costs have been wasted on fruitless enquiries because there is a simple point, which determines the case.” Speaking on the solicitors providing advocacy services: “The comparative attraction of “advocacy” to some firms of solicitors, as a service that they themselves might offer, may be causing them not to instruct barristers until errors have been made by inadequate in-house handling of work. I shall be working with the Law So-ciety to ensure that professional standards are never compromised in the way that cli-ents are supported by law firms.” Turning to questions of whether or not the Bar could survive as a referral profession: “We need to remind ourselves of the rea-sons for the referral model. The reason for the referral barrister model is that advocacy is of itself a specialist skill, and requires the practitioner to concentrate only upon it, and the advisory and drafting work relating to it. This requires that work be referred to him. “The skill is specialist and requires concen-tration upon and repeated practice of its core elements. The more you dilute the skill by undertaking office admin, personnel man-agement etc, the less likely you will make the correct prediction for cases or conduct them in the best way possible for your clients.” Mr Dutton then addressed the issue of the ‘cab rank’ rule: “I have no doubt at all that English barristers following the cab rank rule are demonstrably more independent minded in court than their fused counterparts in other jurisdictions. I have worked in both systems and I have seen a palpable difference.” “I am confident that, in the private sector, provision by a largely specialist referral pro-fession of advocates will be the model of de-livery for the next 5, 10 or even 20 years by the Legal Services Act, however barristers or their sets of chambers ultimately decide to or-ganise themselves.” Turning to broader threats and how they re-late they work alongside the justice system:“Meanwhile, we live in a world where there

are terrorist threats, and difficult terrorist tri-als to prosecute and to defend. These cases need the best advocates to prosecute and to defend. I am concerned that High Costs Criminal Cases should not be bedevilled by a flawed procurement scheme On the relationship between the Bar and the CPS: “The DPP wants in-house advocacy capacity for the CPS, but also wants and needs work to be undertaken by the referral Bar. There is no reason why a suitably qualified employed barrister should not undertake advocacy for his employer. The days of protectionism have long gone. What matters is that we get the balance right in the interests of the public.” Entry to the profession would continue to be a key theme: “You will have read the excellent report by Lord Neuberger published on 27th November 2007 to acclaim. The Bar Council will dis-cuss this report in January 2008 (this month). I urge you to do everything you can to en-dorse and support the recommendations. I welcome it. Soon, the last vestiges of the perception that the Bar is the preserve of the privileged will be driven out.” The Bar Council would also be considering its internal mechanisms: “Also this year we shall have two debates on our own governance arrangements. One in January 2008 on a member’s proposal about more elected representatives, and another in March 2008 to discuss Sir Paul Kennedy’s recommendations made in the Kennedy re-port for the Bar Council. As I have said, I am already taking steps to strengthen the num-bers of elected representatives on committees and to improve communication with the Bar. I think the Bar Council under the Kennedy arrangements will improve. We will need to debate this.” The Bar was also working to contribute to the Government’s work on Governance: “The Bar has some of the world’s leading constitutional law experts, and our contribu-tion to proposed constitutional reforms is in-valuable and demonstrates that we have the public interest at heart, and that we have the expertise to help on issues of importance.”

p.1

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08 the barrister

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09the barrister

10 the barrister

Personal mitigation1

By Dr Jessica Jacobson and Professor Mike Hough

This study examined the

role of personal mitigation

in sentencing in the Crown

Court. The topic is impor-

tant because decisions

about mitigating and aggra-

vating factors actually define the detail of any

sentencing framework grounded in propor-

tionality. It is the ways in which sentencing

practice deviates from the principle that the

punishment should fit the crime that consti-

tute the interesting penological questions.

The topic is not simply of academic inter-

est, however. Our sentencing framework has

shifted its centre of gravity from just deserts

to risk-based sentencing – but the ‘rebalanc-

ing’ that this has involved could unbalance

the framework. This is because all the em-

phasis in the new risk-based provisions is on

the sentencing of high-risk cases. It is perfect-

ly proper for politicians to decide that in the

interests of public protection some categories

of offender should get heavier sentences than

their offence actually warrants. But if they do

so, it makes both penological and fiscal sense

to allow sentencers to deviate from propor-

tionality not only in high risk cases, but in

those where risks are low. Greater attention

to personal mitigation could thus help con-

tain our burgeoning prison population.

The study

The study involved observation of sentenc-

ing in open court and one-to-one interviews

with sentencers. It was carried out across five

Crown Court centres located in London, and

in the South-East, Yorkshire and the Humber

and West Midlands regions. We observed a to-

tal of 132 cases involving 162 defendants and

52 sentencers. In most cases we observed the

prosecution’s account of the facts of the case,

the plea in mitigation by the defence coun-

sel and the passing of sentence by the judge.

We conducted interviews with 40 sentencers,

including each court’s resident judge. The

interviews comprised a series of open-ended

questions about sentencing and mitigation,

followed by a short sentencing exercise in

which the respondents were asked about the

weight they would accord to a number of al-

ternative mitigating factors attached to three

different sentencing scenarios.

Key findings

The term ‘mitigation’ is used to refer to any

aspect of a case that reduces the severity of

the sentence passed. ‘Personal mitigation’ re-

fers to factors relating to the offender rather

than the offence. Personal mitigation takes

many forms, for example relating to:

• the offender’s past (e.g. good char-

acter, productive life, deprived background);

• the offender’s circumstances at the

time of the offence (e.g. financial pressures,

psychiatric problems, intellectual limitations,

immaturity);

• the response to the offence and

prosecution (e.g. remorse, acts of repara-

tion, addressing the problems that led to the

crime, cooperation with the police);

• the offender’s present and future

prospects (e.g. family responsibilities, sup-

portive partner, capacity to address problems

underlying the criminal behaviour).

Our observation of sentences being passed

shows that personal mitigation plays an im-

portant and largely unrecognised part in the

sentencing decision. Judges cited at least

one factor of personal mitigation as relevant

to the sentence in just under half of the 162

cases observed in the study. Personal mitiga-

tion can be the decisive factor in choosing a

community penalty in preference to impris-

onment. In just under a third of the 127 cases

where the judge made the role of mitigation

explicit, personal mitigation was a major

– usually the major - factor pulling the sen-

tence back from immediate custody. In just

over a quarter of the 127 cases, mitigation in-

cluding personal factors resulted in a shorter

custodial sentence.

The judges and recorders whom we inter-

viewed were asked to consider three sentenc-

ing scenarios, and to rate the significance of

different sorts of mitigating factors attached

to each. They were in agreement about the

importance of some forms of personal mitiga-

tion. For example, most said that they would

attach a great deal of importance to the fact

that an offender convicted assault occasioning

actual bodily harm was clinically depressed

at the time of the offence; and only one would

give a burglar much credit for the fact that he

had had a difficult childhood.

Other factors produced inconsistent respons-

es. Half said that they would place a lot of

weight on support for the offender offered

by the victim’s family in a case of causing

death by dangerous driving; but almost half

disagreed. Most would also take considerable

account of a burglar’s commitment to enter

a drug treatment programme, but seven out

of 40 said that this should have minimal im-

pact.

Policy shifts and sentencers’ responses

The sentencing framework introduced by the

2003 Criminal Justice Act has shifted sen-

tencing policy some way from that embedded

in the 1991 Criminal Justice Act. The formal

position is that proportionality to the offence

remains the guiding principle of sentencing.

However, new risk-based preventative sen-

tencing measures introduced by the recent

Act could turn out to be of great importance.

These include provisions relating to the sen-

tencing of offenders who are deemed ‘dan-

gerous’. ‘Dangerous’ offenders can be subject

to life imprisonment, extended sentences or

imprisonment for public protection. The Act

requires the court to assess an adult offender

as ‘dangerous’ if he has committed a ‘speci-

fied’ violent or sexual offence and has a previ-

ous conviction for such an offence – unless the

court believes it unreasonable to do so. The

lists of ‘specified’ violent and sexual offences

are extensive; hence a significant proportion

of offenders are potentially encompassed by

these provisions. The 2003 Criminal Justice

Act also directs sentencers to treat previous

convictions as aggravating factors, whereas

established sentencing practice was to treat a

lack of previous convictions as mitigation.

Recent developments in sentencing policy

were discussed during interviews. Some sen-

tencers expressed strong concerns about the

curtailment of judicial discretion, for example

in relation to the provisions for risk-based

preventative sentencing. They tended to think

that legislation would never be able to take

account of the full range of circumstances of

offenders coming before them, and that man-

datory sentences and similar statutory provi-

sions risked driving the humanity and justice

out of sentencing.

Sentencers were asked about the relationship

between risk assessment and the assessment

of mitigatory factors. There was a range of

responses. Some thought that the process of

assessing risk and the process of assessing

mitigation involve two separate sets of con-

siderations. Others thought that the two proc-

esses run in parallel and feed each into other.

Low risk can be a factor in mitigation and/or

vice versa. Similarly, high risk may be associ-

ated with a lack of mitigation. Others thought

that the two processes were in tension, and

often yielded conflicting conclusions.

The study’s implications

There is a clear case for structuring judicial

discretion as it relates to personal mitiga-

tion. The argument is persuasive that judi-

cial discretion enables sentencers to retain

the humanity in sentencing. By implication,

the extensive scope for personal mitigation

is something to be valued rather than dis-

carded. However, the study has shown that

there is plenty of room for idiosyncratic deci-

sions on mitigation, and it seems wrong that

judges should apply conflicting principles in

their decisions about mitigation.

Our analysis has shown that there are at least

four types of factor that sentencers take into

account in personal mitigation:

• Those that indicate reduced culpa-

bility, such as youth or mental health prob-

lems, pressing need, previous good character

and exceptional disadvantage;

• Those that indicate limited risk of

further offending - relating to remorse and

attempts to make reparation, the offender’s

circumstances, or steps taken towards reha-

bilitation;

• Those that indicate particular sen-

sibility to punishment, such as the strain of

prosecution, the loss of reputation and stand-

ing or the fact that the offender is unusually

poorly equipped to handle a prison sentence;

• Factors that call for clemency, such

as the victim’s support for the offender, family

responsibilities and the ‘collateral damage’

that imprisonment would inflict on relatives,

or the social contribution made by the offend-

er.

It would be possible – and desirable – to ar-

ticulate a set of principles that should apply to

the various forms of personal mitigation. The

task falls most obviously to the Sentencing

Guidelines Council (SGC), supported by the

Sentencing Advisory Panel. Topics on which

guidance would be helpful include:

• Whether and why securing or re-

taining employment should be regarded as a

mitigating factor;

• Whether disadvantage and social

exclusion should be regarded as mitigating

factors, and whether advantage should be re-

garded as an aggravating factor.

• Whether and why family and child-

care responsibilities should be treated as mit-

igating factors, and whether fathers should

be treated differently from mothers;

• Whether offender ‘sensibility’ to

particular punishments should be taken into

account, by analogy to the means test applied

in unit fine systems;

• To what extent and in what circum-

stances the prospect of rehabilitation, e.g.

through drug treatment, can over-ride the

principle of proportionate punishment;

• The scope for personal mitigation

a) where there is a plea of not guilty, and b)

where the offence is so serious as to make

custody inevitable.

Politicians at present are much readier to

promote risk-based preventative sentencing

than to argue the case for personal mitiga-

tion. They tend to assume that the public

have little time for judges’ claims about sen-

tencing the individual. Generally, the tone of

political debate assumes a public that is fed

up with ‘soft’ treatment of criminals.

There is certainly evidence to show that at

one level, a majority of the public feel that

judges are out of touch, and believe that sen-

tences are too lenient. However, this cynicism

and frustration appears to be a function of

the limited and inaccurate information that

people have about sentencing. When asked

to ‘sentence’ specific cases, members of the

public give responses which are often softer

than judicial practice. In other words, polls

may indicate that people want tougher sen-

tences; when given the chance to reflect on

the issues, however, they are likely to support

judges’ views about the importance of indi-

vidualised sentencing. If this is indeed the

case, it should be possible to reach a broad

consensus on the key principles underpin-

ning personal mitigation. In order to achieve

this consensus, however, there is a need for

political leadership that persuades the pub-

lic there is value – both moral and fiscal – in

principles of penal parsimony, and that jus-

tice and toughness are not synonyms.

Dr Jessica Jacobson is a freelance researcher

and writer, specialising in the fields of polic-

ing and crime prevention. She has previously

worked for the Home Office Policing and Re-

ducing Crime Unit

Professor Mike Hough is Director of the Insti-

tute for Criminal Policy Research Kings Col-

lege. He joined the School of Law in 2003,

bringing with him the research unit that he

set up at South Bank University in 1996.

ICPR now has a staff of around 15, carry-

ing out policy research for central and local

government and for independent funders. It

is one of the major criminological research

centres in Britain. He was previously Profes-

sor of Social Policy at South Bank Univer-

sity, and before that Deputy Director of the

Home Office’s Research and Planning Unit.

1 This study was funded by the Esmée Fair-

bairn Foundation. A copy of the full report

is at

http://www.prisonreformtrust.org.uk/temp/

mitigationdistributionspcopy.pdf

11the barrister

12 the barrister

CDS Direct

The basic safeguards for those in custody which were introduced in 1984 by the Police and Criminal Evidence Act (PACE) are something that many of us working in criminal defence take for granted. However, these protections have not always existed, and recent Government proposals make their future look somewhat shaky.

By Richard Miller, Legal Aid Manager, Law Society

Introduction

Section 58 was introduced on the recommendation of the Royal Commission on Criminal Procedure, and established ba-sic safeguards and protections for those detained at police sta-

tions, giving them the right to consult a so-licitor in private at any time. It took a serious miscarriage of justice – the Confait case – to prompt this realisation of the importance of the provision of access to legal advice from a solicitor to those in custody1.

‘CDS Direct’

In January 2008, the Legal Services Com-mission intends to expand the ‘CDS Direct’ telephone advice scheme, which is designed to save £6 million per year, or just three per cent of annual expenditure on police station advice. The Home Office has recently con-sulted on changes to PACE Code C that will be required in order for the expansion to go ahead2.

CDS Direct has been piloted since October 2005, and provides telephone advice to peo-ple detained in the Police Station. It is re-stricted to cases where a person has been:

• detained for a non-imprisonable offence, • arrested for failing to appear in court • arrested on suspicion of driv ing with excess alcohol (failure to provide a specimen, driving whilst unfit/drunk in charge of a motor vehicle), or • detained in relation to breach of bail conditions.

The largest of the organisations selected to provide the CDS Direct service after Janu-ary 2008 is a non-solicitor agency – Bostalls - which the Law Society understands has em-ployed an unknown number of solicitors to supervise the accredited representatives who will provide the advice direct to the public.

Bostalls has recently applied for and been granted a waiver by the Solicitors’ Regulatory Authority from Rule 12.01(1)(f). The waiver permits in-house solicitors to provide legal services other than to their employer or as permitted by rule133.

Concerns have been expressed by the Law Society that this arrangement represents a pre-emption of the development of alterna-tive business structures (ABS), which will be set up under the Legal Services Act 2007. The service would be provided by a commercial organisation that is wholly unregulated, even though a limited number of employees of the organisation may be regulated. Until the necessary regulatory regime to support the development of ABSs has been put in place, there will be significant risks involved in the provision of legal advice by an organisation run and almost entirely staffed by non-solici-tors.

Own Client work

The expansion of CDS Direct heralds a fun-damental and worrying erosion of the link between solicitors and their clients, with the inclusion in CDS Direct of ‘Own Client’ advice for the offences listed above. In other words, a client’s request to speak to their own so-licitor in one of the specified cases will be declined and will be routed to a CDS Direct adviser instead4. A client’s right to choose their own solicitor is a fundamental and important one. Even the LSC acknowledges the importance of client choice in helping to maintain quality of serv-ice. Solicitors have built up relationships with clients often going back over many years, and the numerous benefits to cases being dealt with by a solicitor with previous knowledge of the client will be lost if this proposal goes ahead.

Private clients

Another aspect of the proposed expansion is that all requests for publicly funded advice

will be routed through the Defence Solici-tor Call Centre (DSCC), but that requests for privately funded advice will continue to be passed to the solicitor by the police.

Whilst the Commission asserts that such requests will ‘remain unaffected’, this is in fact unlikely to be the case. Under the pro-posed new system, the police will have to as-certain first of all whether the client wishes to pay privately, before they know whether they should phone the client’s solicitor or not. Code C of PACE includes amendments that were specifically aimed at ensuring that suspects knew that legal advice in the po-lice station was free. The proposed scheme is likely to discourage suspects from seeking legal advice in particular because, depending on how the question about payment is put to suspects, many may believe that legal advice is dependent on payment.

There has been no guidance produced as to what the custody officer is to do if the suspect indicates that they do not know whether they can afford to pay privately. The effect of the proposed changes is to remove the client’s opportunity to negotiate a fee with their so-licitor, or even to speak to the solicitor to as-certain what the fee is likely to be, and what part of the case may be covered by the fee.

There will also be cases where a solicitor may wish to provide pro bono advice to a client in the police station, or when a third party is paying for the advice. There is nothing in the proposed scheme which provides for this.

Finally, and perhaps most significantly, if the call centre cannot get hold of the nominated solicitor, the duty solicitor will be sent instead. Because of changes to the criminal contract, the client will then be unable to change to their own solicitor throughout the duration of the investigation, even if that lasts many months. For the LSC to introduce such a significant interference with a client’s choice of solicitor on the back of what purports to be a mere technical administrative change, and with Parliament having had no in-put into the decision, seems extraordinary.

Section 58

Recent weeks have seen a flurry of questions flying around regarding the structure of CDS Direct, and its relationship with the require-ment in Section 58 of PACE, that any person detained by the police should have the right to consult “a solicitor”. Who is the solicitor who has conduct of a matter on behalf of the client, when the solicitor has not spoken to the client? Does the solicitor discharge his/her professional responsibilities merely by being available should an unqualified clerk decide to refer the case up? And is this is-sue affected at all by the supervising solicitor being an employee in an unregulated non-solicitor organisation rather than being in a regulated firm of solicitors?

From the information provided to the Soci-ety so far, the relationship between the ac-credited representatives providing the advice under the CDS Direct scheme and any super-vising solicitor(s) is unclear; in particular any lines of accountability for the advice provided by the CDS Direct representative.

For the arrangements under CDS Direct to satisfy Section 58 of PACE, provision must be

made for detainees to have access to advice from a solicitor should they so request. On paper, the arrangements appear to meet this requirement, but the Society has concerns about whether the theoretical safeguards are present in practice. If and to the extent that the service is provided by unregulated com-mercial providers, there is no independent means of verification.

Conclusion

The knock-on effects of what at first sight ap-pears to be merely an extension of the exist-ing system for telephone advice in the police station may have profound constitutional im-plications. There is a serious risk that many detained persons may be denied their right to legal advice, and the protection for detained people introduced by the Police and Crimi-nal Evidence Act will be significantly under-mined.

PACE was introduced in order to safeguard the rights of detainees to access legal advice. By involving the police in discussions about the funding of the suspect’s advice, and by denying suspects their choice of solicitor on the basis of pure chance as to whether a Gov-

ernment bureaucracy can contact a named individual within a short period of time, these proposals are in danger of undermining the principles on which PACE was founded.

1In the Confait case, three people were wrongly convicted of murder after they were pressured to confess by the police, in the ab-sence of any access to advice from a lawyer.

2The Law Society’s response to the Home Office consultation can be accessed at: http://www.lawsociety.org.uk/influenc-inglaw/policyinresponse/view=article.law?DOCUMENTID=367494

3Rule 13.07 permits solicitors employed by a commercial organisation to provide telephone legal advice to enquirers provided that the advice comprises telephone advice only, together with a follow-up letter to the enquirer, if necessary.

4From January 2008 this will initially be in 3 areas – Greater Manchester; West Mid-lands; West Yorkshire. After 3 months it will be expanded to the rest of the country.

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13the barrister

Corporate Manslaughter and Corporate Homicide Act 2007: “Same same or new new”

By Gerard Forlin, barrister, 2-3 Grays Inn Square

After more than a decade

of the Corporate Man-

slaughter and Corpo-

rate Homicide Act 2007

(the Act) finally received

Royal Assent on 26 July

2007. It will be brought into force by second-

ary legislation on 6 April 2008.

The new Justice Minister, Maria Eagle, stat-

ed:

“The Corporate Manslaughter Bill is a

ground breaking piece of legislation. This is

about ensuring justice for victims of corpo-

rate failures. For too long, it has been virtu-

ally impossible to prosecute large companies

for management failures leading to death.

Today’s Act changes this. For the first time,

companies and organisations can be found

guilty of corporate manslaughter.

On the basis of gross corporate failure in

health and safety. The Act will make it easier

to prosecute companies who fail to protect

people.

We are sending a very powerful deterrent

message to those organisations which do not

take their health and safety responsibilities

seriously.”

In essence, it will finally dispense with the

need to find a controlling or directing mind

that is also personally guilty of manslaugh-

ter. It further massively reduces the scope of

Crown immunity that currently exists, some

of which has been in existence for decades.

It has not previously been possible to pierce

the corporate veil and successfully convict

a large or medium sized organisation. The

past decade is littered with previous failed

attempts to successfully prosecute in these

situations. With the advent of the Act, it is

highly likely that such organisations will now

be realistically in the telescopic sights of the

prosecution agencies after April 2008.

Section I (1) of the Act states:

“An organisation to which this Section applies

is guilty of an offence of the way in which its

activities are managed or organised –

(a) causes a person’s death, and

(b) amounts to a gross breach of a rel-

evant duty of care owed by the organisation

to the deceased”.

Section I (3) states:

“An organisation is guilty of an offence under

this Section only if the way in which its activi-

ties are managed or organised by its senior

management in a substantial element in the

breach referred to in sub-section (1)”.

Section (4) (b) states:

“A breach if duty of care by an organisation

is a ‘gross’ breach of the conduct alleged to

amount to a breach of that duty falls far be-

low that can reasonably be expected of the

organisation in the circumstances”

(c) ‘Senior Management’ in relation to

an organisation, means the persons who play

significant roles in –

(i) the making of decisions about how

the whole or a substantial part of its activities

are to be managed or organised, or

(ii) the actual managing or organising

of the whole or a substantial part of those ac-

tivities.”

These provisions will therefore make it far

easier to prosecute deaths in the future as

when compared with trying to find a Direct-

ing Mind who is guilty of manslaugher.

In theory, this Act will not change the law

regarding the prosecution of individuals who

are in any event increasingly being impris-

oned following conviction for manslaugh-

ter. See the case of AG v Shaw (AG Refer-

ence No.86 of 2006 (CA) [2007] Bus LR 906)

whereupon after a AG reference, a director

who had been give a two year suspended

sentence for pleading guilty to manslaughter

after a hung jury at his trial was immediately

imprisoned by the Court of Appeal to fifteen

month inside. This trend is also shown by

other recent cases including R v Connolly

[2007] EWCA Crim 790 arising out of the

Teebay case where 4 men working on the

railway were killed by a runaway trailer lo-

cated with Rail. The brakes of the trailer had

been removed. He was sentenced to 9 years

imprisonment which was reduced to 7 years

on appeal.

The reality is, however, that as police inves-

tigations increase, more individuals will be

caught up in the process resulting more in

more arrests and therefore more convictions.

There is already an increasing number of

individuals being prosecuted for both man-

slaughter and ss37 and 7 of the HSWA and

this trend will accelerate after the introduc-

tion of the Act in a recent case called R v P

(TLR 15th August 2007) found the prosecu-

tion need only prove that the circumstances

ought to have put a director on Inquiry to the

extent that there was a duty to act.

Also, the Act will permit the Jury to review

corporate culture inside an organisation and

its general attitude to safety enforcement and

control for the first time.

14 the barrister

Under section 8 of the Act, the Jury will be able to

consider the extent to which the evidence shows

that there were attitudes, policies, systems or

accepted practices within the organisation that

were likely to have encouraged any such failure

or have produced tolerance of it (section 8 (3)

(a) of the Act). This would include, for example,

where an organisation does not enforce its policy

for employees to wear high visibility jackets.

The Jury may also have regard to any health and

safety guidance that relates to the alleged breach

(section 8 (3) (b) of the Act).

Health and safety guidance is defined in section

8 (5) of the Act as “any code, guidance, manual

or similar publication which is concerned with

health and safety matters. For example, ACOP’s,

HSE guidance, SIM’s and a wide variety of other

documents will be allowed to be weighted in the

scales by the jury.

On 9th October 2007 the Institute of Directors

and the Health and Safety Commission published

guidelines regarding the duties of Directors in-

side organisations for Health and Safety. There

are very wide ranging but in essence make the

point that it is a collective Board duty, and will be

a function that Juries will possibly look at when

in the future they asses “how far short” an or-

ganisation fell, with regard to their policies and

attitudes towards health and safety, if prosecuted

under the new Act.

This new ability for the jury to assess and review

the internal practices in an organisation will in-

evitably facilitate successful prosecutions, par-

ticularly when bolstered by recourse to previous

health and safety violations and/or convictions.

This will be a very damning picture in certain

organisations.

Punishment

Once convicted, an organisation will face unlim-

ited fines. Fines imposed in recent health and

safety cases such as Transco and Hatfield [2007]

Bus LR 77 are rising in any event.

In my view, fines in excess of £50million are not

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16 the barrister

far away and when compared to the £120

million imposed recently on British Airways

for anti-competitive conduct or some £300

million for Microsoft recently. BP has been

fined some $170 million for environmental

and fraud charges in the United States. Such

level of fines may soon be imposed in the

health and safety sphere, both in the UK and

in other jurisdictions.

This personal view is perhapes bolstered as

on 15th November 2007, the Sentencing Ad-

visory Panel published some guidelines for

consultation into the future fining of organi-

sations.

In essence, the current thinking of the Panel

is that in the future for corporate manslaugh-

ter the starting point after trial should be:

• The imposition of a publicity order

• A fine of 5 per cent of the offender’s

average annual turnover

• Within a fine range of 2.5-10 per

cent of average annual turnover, within a fine

range of 2.5-10 per cent of average annual

turnover.

Further when sentencing for an offence un-

der the Health and Safety at Work Act in-

volving death, the starting point should be a

fine of 2.5 per cent of the offender’s average

annual turnover within a fine range of 1-7.5

per cent of average annual turnover.

Non-profit making bodies will be looked at

differently but not go unpunished.

This is a huge seachange in the economic cli-

mate, and I foresee great difficulties for cer-

tain organisations. It may well also occasion

certain organisations to reconsider the UK as

a centre for their business.

On the other hand it does equalise the pun-

ishment for small and large alike, given the

same approximate percentages will have to

be paid by offending organisations.

Under sections 9 and 10 of the Act, convicted

organisations can be given a remedial order.

This is order whereby the convicted organi-

sations must remedy the breaches of which

the organisation has been convicted within a

period of time.

Convicted organisations can also be given a

publicity order, which is an order requiring

them to publicise in a specified manner their

conviction, particulars of offence, amount of

the fine and the terms of the remedial orders

imposed.

The effect of publicity orders will result in

greater damage to the reputation of the or-

ganisation causing lower share prices, higher

insurance premiums difficulty in recruiting

and a greater difficulty when tendering for

future work.

At Schedule 1 of the Act there appears a list

of all the Government Departments that no

longer have full Crown immunity. There are

some 9 partial exemptions in some cases

including the police and MoD in situations

which are truly deemed “Emergency situ-

ations”, but it will come as no surprise that

this is seen by certain Government depart-

ments to be unhelpful and unnecessary. On

the other hand, certain groups feel that there

should be no exceptions at all and that the

government has missed a golden opportunity

to kick into touch Crown immunity in all its

guises for ever.

In my view there will in time be a further

gradual erosion of what limited immunity

exists but we will have to wait and see. Ad-

ditionally, where an organisation is subse-

quently prosecuted, the Defence will find it

much harder to prevent that organisation’s

previous convictions going before the jury,

thereby making acquittals harder to achieve

in the future.

Conclusions

Although the Act is still not perfect, and is

bound to be extended in scope both geo-

graphically and in terms of who can be pro-

tected over the coming years, it is arguably a

fairer position than present in that for so long

the reality is that only small and medium or-

ganisations have been successfully prosecut-

ed. The larger organisations hitherto have

been untouched.

In the next few months it will be crucial to

“bed down” as tightly as possible safety sys-

tems and activities that will be capable of

withstanding sustained probing by the Pros-

ecution Authorities in the months and years

following 6th April 2008.

Gerard Forlin is a barrister at 2-3 Grays Inn

Square who has been in many of the recent

leading cases in this area (including Hatfield,

Paddington, Southall, Teebay, Watford,

Barrow, Purley .

Website: www.gerardforlin.com

Email: gerard@gerardforlin.com

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Beyond naming and shaming

The Law Society is challenging the Legal Complaints Service's

proposals to publish complaints records. We believe that a better

way to achieve a genuine improvement in client services is to help

to build the capacity of solicitors to respond to complaints, and to

provide public information on firms who handle complaints well.

The Law Society has conducted polls and focus groups to listen to the profession's views on complaint handling. We have also reviewed the approach of a number of international complaints handling bodies.

Our research indicated concern that publication could:

• reduce access to justice for clients in areas of practice which traditionally generate more complaints • encourage firms to act defensively, thereby driving up costs • fail to encourage a customer focused culture within the profession and instead encourage a compensation culture among clients In a poll on complaints handling, we received 116 responses:• While 96% of respondents already had a complaints handling policy in place, 91% indicated that they would be interested in receiving more information on complaints handling. • Solicitors indicated an interest in receiving assistance from a variety of sources on client service and complaints handling. However, only 38% of respondents were aware that the LCS ran Lawyerline. • There was strong support for information being provided to clients on service levels they can expect from solicitors, with many respondents accepting that individual firms have a responsibility to engage in this process. Providing service level information helps deal with the poor client service complaints (like a delay in responding to letters, rather than misconduct or negligence complaints.) • There was a mixed response on the creation of a voluntary accreditation process on complaints handling for firms. In a poll on complaints publication, we received 325 responses:• 76% of respondents were not in favour of publication. The main reason for this objection was a concern that complaints records could not be published in a way which put the information properly into context. • 53% of respondents said that if publication was to take place, only adjudicated complaints should be included in the record.

Consumer The Winner From The Legal

Services Act

The public emerged the clear winners from the new Legal

Services Act, says the Institute of Legal Executives (ILEX).

With the Act framing the way legal services will be delivered in England and Wales for the foreseeable future, consumers can only benefit from a greater choice of places to go for legal services and an improved and independent complaints system.

The introduction of Alternative Business Structures and the ability of non-legal companies to move into the legal marketplace will present a wider choice for those seeking legal services as well as new business opportunities for firms bold enough to grasp them.

The challenge now facing everyone in the legal sector is how to identify and tap into the right market for their legal expertise and knowledge, whether that is on the high street or elsewhere.

The improved transparency offered by the Office for Legal Complaints and the separation of complaints away from front line regulators can only give the public confidence that complaints will be considered fairly and speedily resulting in less frustration than has often been the case in the past .

“We welcome the benefits the Act will bring for the consumer and believe ILEX members are well placed to work with other legal and non-legal professionals to deliver a better service to the public,” said ILEX Chief Executive, Diane Burleigh.

“But we do have concerns over the likely setting up and running costs of the Legal Services Board and the Office for Legal Complaints. We can only hope that these costs are not so prohibitive that the legal sector will struggle to meet them and risk jeopardising the very thing the Act was designed to deliver, namely a wider choice for the consumer and a better way of handling concerns and complaints.

“We want to see more people buying legal services and more importantly, returning for further services. This is a real opportunity to meet the requirements of all consumers, even those who may not have considered seeking legal advice or those who have had a limited use for legal services in the past.”

Bar survey backs retention of wigs in civil cases - Profession to work with senior

judiciary to find way ahead

A survey conducted by the Bar Council has found that the majority of respondents back the retention of wigs in civil and family cases. The Bar

Council conducted the survey following an announcement in July 2007 by the Lord Chief Justice that the Court Dress worn by Judges sitting

in civil and family cases would be changed in (this month) January 2008. Judges sitting in these cases will wear a newly designed gown, but

no wigs.

The Bar Council now intends to consult further with the profession and other stakeholders as to what (if any) changes should be made to the Bar’s court dress in civil and family cases, bearing in mind the results of the survey. The results of the survey have already been provided to the Lord Chief Justice, who has agreed that the Bar Council’s consultation should take place, and that the Bar Council’s recommendations as to the Bar’s court dress in these cases should be reported to him by 1 March 2008, so that he can announce what dress will be worn in time for any changes to take place after Easter 2008. The Bar Council sought to gauge the level of support for dress change amongst barristers and other interested parties. The consultation received over 2,700 responses, from barristers and interested parties such as members of the House of Commons and House of Lords, students, solicitors and the public. The findings demonstrate overwhelming support for the retention of existing court dress in 2008 and beyond. This support was particularly strong amongst those other than barristers. The results of the survey were that, for civil and family proceedings, respondents supported the retention of the current full Court Dress (gown, wig, wing collar and bands) in the House of Lords (64%), Court of Appeal (66%), High Court (61%) and County Court (47%). Retention was particularly supported for serious cases where a loss of liberty was at stake. ‘Suits’ were deemed the second most appropriate dress in each court, and both ‘current Court Dress minus wig’ and ‘current court gowns over suits’ registered only minor support. These results echo an earlier consultation undertaken in 2003 by the Bar Council.

NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 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NEWS NEWS NEWS NEWS NEWS

BSB set to consider Neuberger

recommendations

The Bar Standards Board (BSB) has responded positively to the

final report of the Working Party on Entry to the Bar, chaired by

Lord Neuberger of Abbotsbury.

Responding to the release of the Report, Ruth Evans, Chair of the Bar Standards Board stated

“Lord Neuberger’s comprehensive report raises a number of important issues about entry to the Bar and diversity which are of major importance to the BSB as a regulator. The recommendations deserve serious study and consideration and we will look at them carefully in the course of our own work on entry to the profession.

“We share the view of the Working Party that equality of opportunity at entry is paramount to delivering a Bar that is of high quality, diverse and representative of the society it services. These are core values and underpin all of the work we do.

“Our root and branch review of the Bar Vocational Course (BVC), chaired by Derek Wood QC, has these values at its heart. The review group will look closely at the recommendations.

IBA calls on the Assembly of States Parties to approve proposed reform of the

International Criminal Court’s legal aid programme The International Bar Association (IBA) called upon the Assembly of States Parties (ASP) to approve the proposed reform of the

International Criminal Court’s (ICC) legal aid programme and the increase to the 2008 legal aid budget. The proposal was initiated by the

ICC Registry after evaluating the pre-trial phase of the case of Thomas Lubanga Dyilo (the first suspect surrendered to the ICC from the

Democratic Republic of Congo (DRC)).

The IBA is concerned that the pre-trial phase of the Lubanga case was lengthened due to delays caused by insufficient staff and other administrative challenges faced by the court-assigned defence team. Justice Richard Goldstone, Co-Chair of the IBA Human Rights Institute and past prosecutor at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda comments: ‘It is important that proceedings before the ICC are conducted expeditiously while safeguarding the rights of the defendants and the victims. To accomplish this, States Parties must commit to providing the resources necessary for the efficient and effective administration of the legal aid programme. Delay is not only costly but has serious consequences for the defendant in custody and undermines the confidence of victims awaiting resolution of the cases.’

In its latest monitoring report, the IBA notes that if adequate resources are not provided to counsel appearing before the ICC, the challenges experienced in the Lubanga case may be repeated in the case of Germain Katanga, the second suspect to be surrendered to the Court from the DRC.

The IBA Report was launched on 27 November 2007 at a high level Roundtable discussion on ‘Equality of Arms and the Right to Defence’ organised by the IBA at the historic Peace Palace in The Hague. The event was attended by more than 130 participants, including diplomats, judges, senior ICC officials, representatives of other international tribunals and international non-governmental organisations, lawyers and law professors.

Liberty launches “Charge or Release”

campaign to halt Government plans to

extend pre-charge terror detention • The human rights group Liberty formally launched its “Charge or Release” campaign to stop Government plans to extend the period terror suspects are held without charge.• Liberty is mobilising its members, the public and politicians to oppose any extension beyond the current 28-day detention period, which is nearly four times longer than that of most comparable democracies. Liberty’s Charge or Release campaign adverts which compare pre-charge detention periods in 15 democracies will run in national newspapers from today and be displayed on billboards across London. See www.chargeorrelease.com for more information.Liberty Director Shami Chakrabarti said: “Liberty calls on all those who believe that individuals must be thought innocent until proven guilty to join our Charge or Release campaign so that months of detention without charge never become reality in Britain. Extending pre-charge detention will be dangerously counter-productive by targeting the very communities whose help is needed to fight extremism.” In the coming months Liberty will also distribute a Charge or Release viral film featuring Vivienne Westwood and Channel 4 Britz star Riz Ahmed.

Welcome for Court of Appeal result

LAPG has welcomed the judgement of the Court of Appeal in the Law Society's claim for judicial review of the Legal Services Commission's unified contract. The case primarily challenged the LSC's extensive right to amend the contract as being inconsistent with European procurement legislation. The court agreed that the LSC had not complied with its legal obligations. The claim was brought jointly by the Society with Dexter Montague & Partners. DMP's managing partner Bill Montague said: "As the Court of Appeal's judgment sets out so clearly, the principal of transparency which underpins the public contract regulations has profound implications for legal aid contracting. It goes to the heart of the relationship between the LSC and its suppliers, a relationship that is currently at an all time low. The LSC could make a large stride towards regaining the confidence of solicitors by responding constructively to this landmark judgment.

Beyond the specific steps needed to bring the unified contract in line with the Court of Appeal's decision, I would urge the LSC to take on board its wider implications by adopting an approach to contracting which gives legal aid suppliers the clarity and stability they need to maintain sustainable businesses. It's no good paying lip service to the aim of a sustainable legal aid system if that aspiration is not embodied in the supplier contracting arrangements and the terms of the contract itself." LAPG chairman Roy Morgan said: "We are pleased that the Court of Appeal has confirmed that the wide ranging power to amend the contract between the LSC and legal aid lawyers is unlawful. No business should be expected to sign a contract with such power being given to one contracting party, creating such uncertainty.

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20 the barrister

Challenging Evidence in E-Disclosure

There has been an abundance of procedures and case law in the US surrounding this new area of law,

originating from the now infamous Zublake1 case followed by the Sedona Principles and culminating

in the updated FRCP2 in 2006

Greg Wildisen, Managing Director of PinPoint Global explores the legal and practical dilemma of pro-

cessing electronic data.

It will not be news to most lawyers that the growing body of evidence in civil litigation stems from electronic documents. However, although the procedures and rules surrounding the production of hardcopy evidence are

well documented and defined, the rules sur-rounding electronic evidence are, at least in the UK, still being formulated.

E-Disclosure (also known as e-Discovery and ESI Processing) is the process of finding, se-curing and providing electronic data with the intent of being used as evidence. Although the name stems from the litigation process, the term is now more widely applied to the treatment of electronic documents generally for litigation, arbitration and internal and regulatory investigations. Simply put – it’s the process of turning data into evidence.

There has been an abundance of procedures and case law in the US surrounding this new area of law, originating from the now infa-mous Zublake3 case followed by the Sedona Principles and culminating in the updated FRCP4 in 2006. There is however, precious little guidance provided by the judiciary in civil litigation in the UK. Given the increasing trend in global litigation and US headquar-tered companies involved in UK litigation, it seems inevitable that at least some of the US practices and procedures will find their way into the UK. Perhaps not in the form of the tidal wave predicted on the back of Sarbanes Oxley, but at the very least it will be a viral intrusion that will affect the way English law-yers deal with evidence moving forward.

There is some guidance offered in the crimi-nal sphere through the ACPO Good Practice Guide to Computer Based Evidence as fol-lowed by computer forensic practitioners. Arguably these should be equally applied to civil matters. This article will address some of the pragmatic issues in E-Disclosure and look at the possible legal challenges to evi-dence stemming from electronically stored information.

How is data harvested?

From a practical perspective, when a lawyer first becomes aware of the need to review electronic documentation, there is often a tendency to get at the evidence as quickly as possible. Usually there is some pressure to provide an initial opinion and to ‘get on top of the evidence’ promptly.

The common practice in obtaining the evi-dence will be to request it from the client. Usually there will be some guidance as to the level and depth of the harvesting process, for example all email correspondence of certain custodians between a certain date range.

This request is then handed on to the client’s IT department where a technical person, who most likely has little or no understanding of the reason or legal procedures involved will collect the data (usually unsupervised) from back up files, hard drives, external drives etc to collect the specified data set.

In a better organised scenario, there may be more effort put into the scoping process to determine where any relevant data may be stored. There may also be methodologies put in place for collection and ideally documenta-tion of the process confirming all touch points of the data. The process will still normally be performed by an internal technical person.

More rarely, the scoping will be performed by professional E-Disclosure experts in conjunc-tion with the client and legal team, the data will be forensically harvested by technical ex-perts in conjunction with the client’s IT team and the whole process will be professionally project managed and documented.

What is forensic harvesting?

Forensics harvesting of data is the acquisi-tion, authentication and reconstruction of electronic information stored on computer media. This is done by making a non-inva-sive mirror image, a complete physical copy through bit by bit, sector by sector copying of the drive onto an external hard drive. This approach replicates all of the data including all allocated and unallocated space, deleted and corrupt files.

As part of the process, there will also be an MD5 hash verification of all of the contents of the drive to confirm that the process has worked correctly. This allows for true preser-vation of all potential evidence on the original hard drive. Investigation can then proceed without the potential for amending any of the original data as the forensic image is a read only version of the information. This can in-clude viewing file creation and modification dates, viewing deleted files, partially deleted files, evidence in swap files and in file slack or determining if there have been attempts to

spoil evidence etc.

What are the weaknesses that can be tested in the UK?

In the UK the best evidence rule applies – sim-ply put, absent some exceptions, the original of a writing must be admitted into evidence in order to prove its contents. Obviously if the original isn’t available, a copy may become the best evidence available. This will then be a question as to the weight of the applicable evidence.

With respect to an original signed letter, the original is best evidence as the author or a handwriting expert can testify as to the au-thor’s signature on the document.

This same concept can be translated to elec-tronic documents. The best evidence will be that which is preserved forensically from the original source. It is a bit for bit mirror im-age of the original. Anything less than this is potentially open to challenge as it has had the opportunity to have been tampered with. For example, simply by copying an electronic document using the Windows file system, cer-tain meta-data will be changed as a matter of course. This copy is then not a true copy of the original.

The US experience, and the fact that most ev-idence in the UK is not preserved using best practice techniques means that evidence can potentially be open to challenge. However this does not mean that lawyers will seek to challenge the evidence in all cases. Often with electronic email for example, there will be no dispute as to when it was sent, by or to whom or indeed its actual content. The only ques-tion may relate to the correct interpretation of the contents. In this scenario it unlikely that there will be any benefit gained by chal-lenging the authenticity of the document.

Where the very existence, timing or the ac-tual content of a document is at issue, there are some legal challenges that can be consid-ered. If we work through the scenarios above for how data is usually harvested in practice we can split the challenges into those made where data is not forensically harvested and those where it is.

Where data is not forensically harvested

1. Challenge the source of the data

21the barrister

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– in many cases, especially involving multi national organisations, there is potentially massive amounts of data stored in various formats, in multiple locations. It has often been argued that a party has not provided all of the relevant documents for a matter. In the UK at least, defences of proportionality have been raised and recent US cases are tending to favour this view as well.

2. Challenge the methodology used – the argument here is that the methodology by which the data was collected and produced is unsound and as a result, the evidence can-not be considered reliable. This will require an analysis of the methodology deployed and a clear understanding of how this may have “spoiled” the evidence. This can in-clude a technical challenge arguing that the documents produced in court are not exact copies of the originals. This argument would normally require some prima facie evidence of tampering or bad faith on the part of the opponent.

3. Challenge the software used to pro-duce the output – it may be that the software used by an opponent to produce the docu-mentation is open to challenge. For example, if a product did not correctly deal with zip files or embedded OLE objects, arguably the evidence produced by the system is unsafe. Also if the software forces a certain output that has not been agreed by the parties it may be possible to challenge the evidence produced.

4. Challenge preservation of the data – This argument is based on data having been missed by not preserving the evidence from the outset. For example, simply turning on a PC will change the contents of a hard drive. Sedona Principle number 5 states “The obligation to preserve electronic data and documents requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.” There is a signifi-cant body of US law outlining the severe pen-alties that have been applied for parties not applying an appropriate litigation hold.

5. Challenge the chain of custody – po-tential electronic evidence must be accounted for from the moment of collection for discov-ery, to the point of admittance in court in or-der to prove its authenticity. Proving the chain of custody disproves tampering or alteration. The concept was founded mainly in criminal cases where the chain of custody for evidence including inter alia murder weapons was es-sential in bringing a criminal to justice. The concept equally holds true for electronic doc-ument evidence but there is an added level of complexity as the chain is relevant to both the physical / tangible items, for example the PC or laptop, and also the intangible evidence, for example the actual emails, word docs or spreadsheets.

The most likely timing of a breach of the chain of custody is at the very beginning of a matter. Lawyers, under pressure to provide opinions and determine strategy may be tempted to look for clues on a PC without realising the potential forensic damage that can be caused. One of the major advantages of forensically harvesting the data is that provided the ap-propriate software is used, the chain of cus-tody information is automatically generated at the time of acquisition and the continually self verified thereafter.

Where data is forensically harvested

Where data is forensically harvested, it may still be possible to argue that the inappropri-ate data was harvested but it is much more difficult to challenge the methodology and content of the data.

1. Challenge the validity of the compu-ter forensics software product used – where data has been forensically harvested using proprietary or multiple software tools, it may be argued that the evidence outcome is not known and therefore not safe. Using the wrong tools can lead to a situation where the data restoration process alters the evidence on the evidentiary copy or provides visual output that is not complete and accurate. In addition, a software product may not in-tegrate all the essential forensic functions within the one application. As a result, output may be inconsistent and therefore unsafe.

The body of law in the US suggests the most reliable way to protect from such a challenge is to use an industry standard forensics soft-ware product. In the US there have been nu-merous cases where parties have challenged the actual software used for forensic harvest-ing. In Sanders v. State, the Texas Court of Appeals5 reaffirmed the reliability and ac-curacy of leading forensic software product. Equally in Australia in Sony Music v. Univ. of Tasmania et al6 the court confirmed that us-ing a recognised forensic software tool to per-form forensic harvesting ensures the process is beyond challenge on that ground.

2. Challenge the Operator as an Expert – The body of law defining experts is well es-tablished in the UK. If the examiner has weak credentials it will be possible to challenge their ability to harvest the data correctly. This will be more relevant where the results from an examiner are subjective, incomplete or variant. Also if the examiner uses multiple, bespoke software tools, this will open chal-lenges on reliability and consistency as it will be difficult to recreate the output or suitably explain how they operate. It may also be pos-sible to challenge the examiner on their abil-ity to view and report on file slack, swap files, unallocated and deleted data.

Possible sanctions

The main body of law on this stems from the United States, where the courts have imposed

some severe sanctions on parties that have failed to comply with the guidelines and laws on ESI7 processing. The sanctions range from reduced weight of evidence, through negative inferences to punitive damages. At times the damages have appeared to be disproportion-ate to the errors made by the parties.

Conclusions

The area of E-Disclosure is growing through infiltration from the US and sheer weight of volume of documents being created within the UK and around the world. It is inevita-ble that the UK judicial system will need to better define practices and procedures in the area. These guidelines will be essential if le-gal practitioners start to challenge electronic evidence in the same way that their US breth-ren have since Zublake8.

The US has attempted to better define the po-sition in the new FCRP. These have arguably caused more confusion then illumination9. However at present the only real guideline is to follow best practice, which in this area means “the method that would yield the most complete and accurate results10”

While there is a lack of judicial and statutory direction, the evidence in many cases may be open to practical and legal challenges. If the outcome in the US is to be used as any guide, even with the tempering of proportionality, the sanctions for correctly challenged evi-dence could mean that a party’s case is effec-tively lost even before it gets started. For further information on this subject visit www.pinpoint-global.co.uk or email info@pinpoint-global.co.uk

1Zublake v. UBS Warburg, 220 F.R.D. 212

2Federal Rules of Civil Procedure 2206 as amended

3Zublake v. UBS Warburg, 220 F.R.D. 212

4Federal Rules of Civil Procedure 2206 as amended

5191 S.W.3d 272, (Tex.App. 2006); Cert. Denied, 127 S.Ct. 1141. 166 L.Ed.2d 893 (U.S.2007)

6(Fed Court, NSW Dist. N128 of 2003 (May 30, 2003)

7Electronically Stored Information

8Id.

9Lloyd B. Chinn, “Discovery Rules Raise More Questions Than Answers”, New York Law Journal, November 7, 2007.

10Gates Rubber Co. v. Bando Chemicals Indus. Ltd 167 F.R.D 90 (D.C. Col., 1996)

22 the barrister

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24 the barrister

One of the biggest problems

facing the legal profes-

sion is how to open it up

to more students from less

well-off backgrounds who

have neitherthe money

nor the contacts to break through easily into

a law career.

Last year, the Sutton Trust, which was set up

in 1997 to improve social mobility in the UK

published research on the educational back-

grounds of the UK’s top solicitors, barristers

and judges. This research found that three

out of four top judges, more than two-thirds

of top barristers and more than half the part-

ners at leading law firms had attended private

schools which educate just 7% of the popula-

tion. 81% of judges had been to Oxbridge.

“I know from personal experience” Cherie

Booth QC said recently, “how difficult it is to

enter the profession from a non-privileged

background. The problem was not just lack of

money although this was a big obstacle, but

also the lack of contacts – family or friends

who could help to find you work experience

and mini-pupillages.”

As we know, she made it, and so did Baron-

esses Helena Kennedy and Patricia Scotland.

But how many excellent would-be solicitors

and barristers have fallen by the wayside?

What can be done and what do law students

generally think about moves to increase di-

versity in the legal profession?

I can answer the second question directly as

I am in charge of research at The College of

Law, the largest postgraduate centre for legal

vocational studies, with some 6,000 students.

About a quarter of them, including nearly

100 BVC students, responded to a question-

naire which we gave them as they enrolled for

our Graduate Diploma in Law, Legal Practice

Course or Bar Vocational Course last Septem-

ber. The survey included a few questions on

their attitudes to diversity. Quite clearly they

feel a lot could and should be done.

Chambers should take note that aspiring bar-

risters also hold strong opinions on Diversity,

with eight out of ten students indicating that

it is important that the organisation they

work for has Diversity policies and practices.

When thinking about how diversity in the le-

gal profession could be increased, the large

majority felt that providing financial support,

offering work experience and introducing

students from non-privileged backgrounds

to relevant contacts in the legal community,

were the best ways forward. They were con-

siderably less keen on the idea of pressuring

firms to consider non traditional applicants

by introducing targets.

In tune with their sense of responsibility and

wanting to help people, almost three quarters

felt it was fairly important that the organi-

sation/chambers they work for have com-

munity/schools Pro Bono projects. And with

regards to the environment, sustainability

policies and practices were also regarded as

important.

When they finish their studies the average

debt estimated by the 1,489 students who

responded to our survey, was going to be

around £14,900 and the 97 barrister stu-

dents expected to be further in debt - on av-

erage £16,000 - by the time they started their

pupillages.

Law firms and Chambers can only do so

much. The barriers to going to university and

studying law start much earlier. By the age

of sixteen it is not quite too late to encourage

bright students from non-traditional back-

grounds to aspire to study law.

Last year readers of Barrister Magazine

might have read about a girl called Rothna

Shah - thirty years or so years younger than

Cherie - a very bright student from Leith, who

has just completed her third year of a Law

degree course at Edinburgh University. They

will recall that the secondary school she at-

tended is in a poor district of the city and was

lucky to have thirty students in its sixth form

of whom perhaps ten went to university. Her

Bangladeshi father works hard to support his

eight children, running a small business de-

livering Asian food and other materials. But

she admits: “Although I have always wanted

to be a lawyer, and my parents have always

been ambitious for me, I doubt if I would

have made it to this university without the

Pathways to the Profession scheme run by

the university and sponsored by the Sutton

Trust.” She has scored a 2:1 with an A in

her Medical Jurisprudence Paper and Bs in

Media Law and Intellectual Property. In her

final year she hopes to do even better in her

Criminal Law and Gender and Justice papers

and with her dissertation on organ donations.

Subjects in which she is now passionately in-

terested.

She has just completed one day shadowing

Andrew Stewart, Clerk of the Faculty Advo-

cates, in an immigration case at the Court of

Session in Edinburgh.

She said: “In the last two years I have been at-

tending Pathways events and acting as a men-

tor to another student from a similar back-

ground as my own. We were well matched.

Being a Mentor and being an Ambassador for

Pathways, helping other students, made me

work harder and realise just how lucky I was

to be at this great university studying Law.

“Two years ago I spent a week at the same

Court of Session as part of work experience.

As I watched the advocates at work I mar-

velled at their expertise and their ability to

take criticism from the judges. I thought ‘no

way’ could I stand up in court and be like

them. From that day I ruled Advocacy out of

my personal equation.

“Now I am not so sure. I met Andrew at the

Sutton Trust’s Tenth Anniversary celebration

last October. I then spent a day watching him

at work. Now with the increase in confidence

Diversity- What law students think and what can be done about it

By Prudence Shapcott, Director of Research at The College of Law

25the barrister

that Pathways has given me, I thought per-

haps I could become an advocate. I was really

pleased to have this confidence backed up by

Andrew’s own opinion. As I discussed the

case with him he said that of course I would

make a good advocate. Advocacy is now back

on my agenda although with a year of further

research I will be keeping my options open.

“You might like to know that my younger sis-

ter Imma, aged 18, wants to become a doctor.

She too is on the Pathways Scheme and is in

her second year of medicine at the University

of Edinburgh.”

The Pathways scheme, which started in Scot-

land, has been running for a few years and

targets students from non-professional fami-

lies who will often be the first in their fam-

ily to go to university, when they enter their

sixth forms and encourages them to consider

a legal or medical career. If they do they are

given mentors, in the form of other further

advanced law students, careers advice and

introductions to law firms and advocates (the

Scottish equivalent of barristers). Since 2003

231 Pathway students have entered the uni-

versity and of these 133, including Rothna,

are studying Law. They still have formida-

ble obstacles to overcome, not least how they

are to support themselves while they do their

training. Rothna says somehow or other she

will find the money. Her goal now is to do

a postgraduate year on an MPhil course in

Criminology.

Last year The College of Law decided to

embrace and expand the Pathways to Law

scheme. This decision was based on witness-

ing the success of the Edinburgh scheme,

which was singled out for a best practice

award by Universities UK. The College de-

cided to invest £1.25m over five years and to

put its money where its heart was. This has

enabled the Pathways Scheme to be set up

and to be targeting schools around each of the

College’s six centres – in London Bloomsbury,

London Moorgate, Birmingham, Guildford,

Chester and York.

The scheme is aimed at future solicitors and is

managed by the Sutton Trust which is putting

a further £250,000 into the project. By 2010

we estimate that we could be admitting 750

Pathways students each year. Most of these

will have come from schools with a large

proportion of children on free school meals

and which do not send many students to uni-

versity. Assuming about 6,000 Law students

continue each year to start training contracts

as solicitors, this works out as a significant

12.5% of the total number enrolling each year

with the Law Society.

Five leading universities - Leeds, LSE, Man-

chester, Southampton and Warwick - are in

the final stages of recruiting and register-

ing 250 Pathways students, with the initial

events taking place before the end of October.

The universities were selected because of the

reputation of their law courses, their record

of commitment to widening participation and

their existing links with the College of Law’s

six centres.

The universities will deliver a variety of

academic and skills-based sessions for the

Pathways students throughout their two

year participation in the scheme, and each

Pathways student will be allocated a current

LLB student as a mentor. Students will also

receive detailed advice, guidance and sup-

port throughout the university application

process.

The College and the Sutton Trust have been

asking leading law firms to help in terms of

meeting these students, providing mentors,

offering them work experience and consider-

ing them for training contracts. We have so

far had an encouraging response.

Five leading law firms have pledged more

than £350,000 over the next five years to help

finance what is now a £2m initiative to attract

fresh talent to the legal profession. Allen and

Overy, DLA Piper, Freshfields Bruckhaus Der-

inger, Linklaters and Lovells have committed

both time and money to the scheme. Crucial-

ly, participating law firms will provide work

experience placements to the 250 students

who enter the programme each year.

In a joint statement Professor Nigel Sav-

age, Chief Executive of the College, and Sir

Peter Lampl, Chairman of the Sutton Trust,

said: “The contributions from law firms are

especially welcome as they will enable us

to enhance the scheme still further through

national events and web-based support pack-

ages, and may enable more students to ben-

efit from Pathways in the future. But even

more important than that is the authoritative

weight that such firms bring to the project,

showing their determination to widen access

to the law. Their help in terms of providing

work placements within their firms will be

especially valuable.”

For those students wanting to become cor-

porate or commercial lawyers, the financial

obstacles are not so formidable. We are al-

ready working with a number of top firms

(including Allen & Overy, Clifford Chance and

Linklaters) on firm-specific LPCs. The part-

nerships we have with these and other firms

mean that all their postgraduate course fees

are paid for.

When it comes to students keen to do Legal

Aid work we have a similar scheme with the

Legal Services Commission which will pro-

vide some help with course fees. We still need

to find some form of funding help for those

students attracted to the universities through

the Pathways scheme who wish to work for

High Street and other small firms who cannot

fund them through their courses.

The Pathways scheme will cover Bar stu-

dents. But they could be lost to the Bar if the

profession does not respond to them in the

same was as solicitor firms are likely to do.

We will need help from Barristers Chambers.

We have asked them if they would consider

providing mentors, offering Pathway students

special pupillages and organising events, per-

haps sponsored by the Inns, where they can

meet barristers, benchers, judges and law

lords. Perhaps the Inns could look favourably

on them for scholarships and find sponsors

of the kind they offer their own student mem-

bers. A positive response from the Bar Coun-

cil is expected soon.

The College is happy to talk and meet with

anyone else to see how this project, which

will enrich the profession with diversity, can

be furthered.

Can torture ever be justified?

Based upon the reports by Sultan Almasoud, Liam Askins, Chris Kershaw and Darina Mackova, PHD

students at The University of Hull Law School

As UK and US governments face increasing pressure to consider information extracted under torture in their fight against terrorism, the Law School at the University of Hull held a

special two-day event to investigate key is-sues in the terrorism and torture debate, earlier this month. The conference attracted speakers and delegates from across the globe and raised many important issues. A key focus of the conference was the impact of 9/11 upon democracy and law. Massimo La Torre, Universities of Hull and Catan-zaro, Italy pointed out that the 9/11 attacks brought down more than the Twin Towers: they brought disregard for international law and, by faux moral and legal reasoning, brought back torture. He suggests torture is a phenomenon which is always incompat-ible with the rule of law and never capable of moral justification.

La Torre expressed serious concerns about the views of the US administration. Worrying-ly, Bush’s National Defence Strategy of March 2005 likened international law and judicial process to “a strategy of the weak”, on the same level as terrorism. La Torre deplored the assertion of the theorist John Yoo, a fa-vourite of George Bush, that the President’s power in the context of the ‘war on terror’ is unrestrained by law.

With torture’s recrudescence, La Torre felt compelled to re-answer a question which had long been thought settled by history and ju-rists; a question so appalling that it should no longer be responsibly and seriously asked, namely “Is torture compatible with rule of law?” La Torre characterised torture as a form of despotism, slavery and tyranny: in-herently and necessarily abusive and exces-sive; disproportionate and unpredictable; a practice which denies the equality and digni-ty of both the victim and the torturer. Torture is therefore forever incompatible with rule of law and never capable of moral justification.

Augustín José Menéndez, from the Univer-sities of León, Spain and ARENA, Norway, presented a paper entitled Torturing consti-tutional theory: The constitutional of Bush II and the juridification of torture. The Ameri-can Administration, he said, considered the 9/11 attacks an act of war against the US. In order to ensure the national security after 9/11, not only does the US President have the power to ignore international law, but also a new interpretation of the meaning of the right to life and integrity. This empowers the Pres-ident as “torturer in chief”, allowed to take any action in order to protect the Nation. The speaker pointed out that the argument of “lib-eral torture” is extremely dangerous, not only on grounds of wickedness, but also because it reveals the real nature of the Cheney’s con-stitutional doctrine as a “decisionist theory of

law covered under a natural law façade”.

Some presented compelling arguments of specific cases of where torture can be justi-fied. Michael S. Moore, University of Illinois, USA, offered a provocative account of situa-tions where the ends may justify the means in the use of torture. He offered an array of potential answers “good consequences”, such as potentially saving lives of innocent people.

Moore thinks that the resort to torture can be justified in situations such as self-defence or almost guaranteed salvation of many lives. This obviously involves an accurate balancing of the consequences and prompts important questions, such as “who decides?”, or “what counts as torture?” Is “torture” limited to the causing of harm, or does it also include omis-sions, such as a refusal of medical care in the case of a suspected terrorist?

Francesco Belvisi, from Modena and Reggio Emilia, Italy, examined the problematic sce-nario of the ‘ticking bomb’. If a bomb is set to detonate, leading to the death of possibly hundreds of innocent civilians and the terror-ist is captured and is the only person capable of defusing the bomb, may one torture the detainee to save innocent lives? Belvisi em-phasised the practical importance of putting oneself into the position of the official with a duty to safeguard the public. In his view, torture – in such extreme situations – can be justified.

No discussion of the the use of torture would be complete without an examination of mo-rality. Uwe Steinhoff, University of Hong Kong, offered a lively and challenging analy-sis of the moral dilemma surrounding the use of torture. His creative use of scenarios to illustrate the problem offered an engaging insight into this question. Many of these con-sidered the perspective of those who might suffer if torture were not used, emphasising that if someone instigates a terrorist attack, this person should bear the responsibility for harm done to him aimed at preventing the attack.

He made a number of references to the eth-ics of warfare and humanitarian law, which are founded on the principle of self-defence. It was noted that the bombing of ‘innocent’ defenceless combatants in a trench from the air was permitted in the law of armed conflict and that the law of armed conflict allows for the euphemistically termed ‘collateral dam-age’ − provided the use of force fulfils military necessity and proportionality requirements. The speaker was unequivocal in claiming the right of the moral philosopher to appeal to emotions in relation to sensitive issues such as torture.

Penny Green, King’s College, London and Tony Ward, the University of Hull presented a

paper on Torture and the Paradox of State Vi-olence, offering a criminological perspective on “managing torture” as a practice towards which most humans have natural inhibitions. Torture therefore corrupts and poisons all of the society and Victims of torture are not only those who are subject to brutal practices, but also those carrying them out. In the power-play of regimes subscribing to torture, it is the human that is lost; the human essence of everyone and all. This way, the moral core of the “torture discussion” − about what kind of society we want to live in, skilfully resur-faces.

Hauke Brunkhorst, University of Flensburg, Germany, examined whether or not torture is compatible within democracy. Taking vari-ous functions of law as a starting point, he counter-posed the stabilising function of law with the emancipatory one. The stabilising function was, in Europe, historically tied to the protection of Christianity. Torture in this context – the Inquisition – was also presented as means of saving the person’s soul, the “in-ner life” of the criminal. Modernity, on other hand, is emblematic of the emancipatory role of law. Power-limiting constitutionalism gives way to an emancipatory constitution-alism protecting primarily the rights of free and equal citizens. Within the setting of the democratic constitutional order, torture is op-posed to the principal value of constitutional democracy – the value of freedom – that shall not be unconstitutionally restricted. The un-conditional prohibition on torture follows from the idea of democratic self-determina-tion, which makes torture definitively incom-patible with democracy.

The use of torture through the ages was ex-amined. Marina Lalatta Costerbosa, Bologna, Italy, offered interesting arguments against torture developed in the past. Her paper Tor-ture in the Modern Age challenged the fre-quent impression that advancement in time automatically means progress. Today’s anti-torture arguments are at least 300 years old. According to Costerbosa, torture in modern terms is a serious breach of constitutional-ism. It also denies the presumption of inno-cence and is judicially irrational − treating innocents worse than criminals. Quite inter-estingly, Machiavelli himself was accused and tortured in 1512. He claimed that torture was used wrongly in relation to him, but did not reject torture in principle as a practice. By distinguishing two faces of torture − the judi-cial and political − he maintained that torture is a legitimate means to combat political en-emies. Jeremy Bentham’s argument against torture stemmed from its excessive and ex-treme nature, making it impossible to control or regulate it by law. “A little bit of torture” or “sustainable torture” is logically impossible, as torture is by its essence extreme and un-predictable, or not torture at all. Costerbosa concluded that in democratic setting, law and

26 the barrister

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NEWSROUND

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torture cannot go together and any justifica-tion of torture is merely instrumental. Practice of torture and advocacy for torture signal a cri-sis of democracy and harks back to pre-mod-ern times.

An interesting joint project based on interna-tional cooperative research was the basis for the contribution by Linda Shields, Professor of Nursing at The University of Hull. Entitled “Torture and Terror: Nurses in Nazi Germany, Shields’ paper recalled the horror of World War II and explored the field of professional ethics of health workers in Nazi Germany.

Professor Shields demonstrated how even car-ing professions can be abused in the machin-ery of authoritarian regimes. Nazi “eugenics” programmes included assigning to midwives the role of identifying “defective children”; running the “euthanasia” programmes for both children and adults suffering, for in-stance, from epilepsy or other life-long health problems. Many nurses resisted killing their charges or participating in camp experiment programmes during the Third Reich, but there were also willing abusers, and participants who felt obliged to carry out orders. She went on to state how the absolution of 14 nurses in the Munich trial in 1965 opens up serious questions of limits to the State serv-ants’ duty of obedience. Documented by con-crete names, faces and places, presented in a vivid manner, this contribution helped to remind conference delegates of the reality of torture.

Modern perspectives on torture were also ana-lysed, most notably by Bev Clucas, Lecturer at the Hull Law School, who presented a paper on modern cultural representations of torture. Considering the nature and employment of the torture scenes in the US television series 24, which has an average of 13 such scenes per series, she concluded that the show’s use of torture as a plot device is not neutral.

She argued that on balance, the show’s mes-sage was pro-torture in ticking time bomb cas-es. The show suggests (erroneously) that tor-ture is practically necessary and valuable, and legally and morally permissible. The series 24 has therefore stepped out of the category of programmes we might wish to accept as pure entertainment.

The conference benefited not only from en-gaging and penetrating papers, but also from extremely lively debate and discussion. Un-surprisingly, there were two main positions. The camp of “moral absolutists”, on the one hand, upheld the unconditional, definitive pro-hibition on torture. On the other side were those who advocated a re-consideration of the prohibition in extreme situations, such as the ‘ticking-bomb’ scenario. It was emphasised that the threat of a “slippery slope” in the lat-ter case, however − a well-meaning exception leading inevitably to more wide-spread prac-tice of torture − may be as noxious for democ-racy as is the threat of terrorism. The dilemma of “democracy versus security” is not an easy one to resolve. Humanity has been on similar crossroads many times in the past. Which route we should choose is still in our hands.

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29the barrister

CPD: Have we been hoodwink? Why CPD needs reform and less regulation

By Phillip Taylor MBE, Abbey and Richmond Chambers

Many barristers were taken a bit by surprise when the implications of the Access To Justice Act hit home to the mass of our members and that regulatory dino-

saur called ‘Continuous Professional Devel-opment’ (CPD) rose its “ugly” head - as far as some, mainly older, members were con-cerned.

As part of a wide ranging educational report to be published this year, I have reviewed the working of the CPD system as part of my post-graduate educational research thesis, and I came upon some startling findings from those I interviewed and researched.

A starting point was a ‘Training Journal’ magazine article, where Graham Guest de-fines CPD in what appears to be an accept-able form as the “systematic maintenance and improvement of knowledge, skills and competence, and enhancement of learning, undertaken by a person throughout his or her working life.”

In this excellent ‘educationalists dream arti-cle’, Guest includes, as suitable CPD activities the following: in-house training, open learn-ing, short courses, conferences, seminars, workshops, structured reading, self-study, preparing and making presentations, and acting as a coach or mentor. The remit re-mains therefore highly vocational for many.

However, the fact remains that any compe-tent professional will pursue such activities without being forced to do so, and would not have survived in our profession otherwise. And this is where the attitude problem arose with my interviewees: resentment.

Unfortunately, we now have substantial stat-utory regulation which forces everyone to identify that the heart of CPD is the process of learning, which takes many different forms depending on which educationalist you speak to. Guest and others have suggested that it may be formal, non-formal or informal.

Guest’s Education-speak

It is inevitable that much education-speak gobbledygook exists in any serious articles or comments concerning CPD today across the professions, and my research has certainly come across some beauties.

It’s accepted that formal learning has mainly been gained through structured courses run

by education or training establishments, such as universities or colleges; usually by a cer-tificate, diploma or degree awarded on suc-cessful completion and this will remain with a new Education and Skills Bill expected to be completed in 2008 or 2009 which raises the school leaving age amongst other measures.

For non-formal learning, we include pro-grammes run by organisations whose prime purpose is not the provision of learning with examples being corporate training centres in, say, a large company where a certificate may or may not be awarded when learning has taken place.

On the other hand, informal learning can be gained in an unstructured way during the course of one’s work or outside it. This is of-ten referred to as “incidental learning” and is, by its very nature, not usually subject to some form of certification.

So what should we barristers do? Barristers have their own preferred ways of learning taken now from a mixture of academic and vocational training as my research indicated. Each of us, I was told, when we learn any-thing new, typically pass through four distinct phases which Guest has helpfully re-defined for us in his article as:

1. Unconscious incompetence: we don’t know that we don’t know. We have yet to learn about a subject, such as driving a car or riding a bike.

2. Conscious incompetence: as we begin to learn something, we are very much aware of our failings and inability to master the skill we are trying to learn.

3. Conscious competence: we have begun to master the skill but have to maintain our concentration and are still prone to errors.

4. Unconscious competence: this is where we apply the skill automatically, with-out the need really to think about it. The unconscious mind takes control, leaving the conscious mind to think about other things.

Isn’t this stuff great?

When I did my teacher training we heard this sort of thing everyday… but it was such a change from court and client work, and is something we will all probably hear more of as CPD function is expanded because it is a money spinner.

So did we expect to undertake this when we first thought of becoming advocates?

In some respects, CPD is just a way of giving a name to a process that we have all been engaged in anyway, probably subconsciously when reading ‘The Times’ on the train to chambers. If we have been successful in our chosen career the chances are that we have been ‘doing CPD’ incidentally and without be-ing aware of it since call.

THE CPD INSTITUTE

My starting point with modern, 21st century CPD thinking was triggered by a letter I re-ceived from the Institute of Continuing Pro-fessional Development (www.cpdinstitute.org). In it, the institute has described itself as a ‘cross-professional’ organisation, pro-moting the values of lifelong learning whilst encouraging networking and partnership amongst individual professionals and the groups they are associated with. So nothing wrong there, then.

I saw when discussing their role with them, that ICPD members are at the forefront of the current government’s lifelong learning policy which can be described as ‘learning from the cradle to the grave for both personal and pro-fessional enrichment, with the focus on the learner’.

What the ICPD fosters is lifelong learning in both professional and networking func-tions so that professional bodies like the Bar, business, education and training establish-ments, employers’ organisations and trades unions will retain an interest in supporting the CPD of their members, clients, employees and students through an approach based on partnership. The networking element iden-tifies CPD and the wider concept of lifelong learning as vital ingredients in an increas-ingly ‘networked world’ (quite a change for the Bar, some might think!) as the growth of information and communication technologies dissolves distances.

One conclusion I came to was that the starting point for the CPD function is that all profes-sionals (not just advocates) are assumed to be technically competent and managerially ca-pable (even if they have small staff). Indeed, in our knowledge-intensive world some have argued that the only real source of sustain-able competitive advantage is the ability to recognise and adapt to these changes faster than the competition. Most of my interviewee agreed with that point.

30 the barrister

The commitment to keeping up to date has grown in significance as an increasing number of people recognise the benefits of adopting a planned and structured approach to post-qualification learning at a reasonable cost in time and money. Commitment to CPD has acknowledged that becoming professionally qualified is not merely an end in itself - it is merely the be-ginning. Updating skills and knowledge on a continuous basis is essential to career pro-gression, particularly given the passing of the 'job for life' and rigorously-defined career path cultures pursued currently.The Institute is part of the Continuing Profes-sional Development Foundation, an educa-tional charitable trust providing high-quality and broad-ranging CPD since 1981 and now very much in vogue. The Institute does serve the public interest by helping to raise the ef-fectiveness of professionals through the pro-motion of CPD as an important and integral element of lifelong learning but has been the subject of claims that it is a ‘bit of a money-spinner’ which I wanted to reject from my research as being an unfounded slur.

A REGULAR CPD COMMENT

‘CPD- an insult to the integrity of the junior barrister’

I received some surprisingly vicious views in a series of anonymous surveys with attendees at the updating Conditional Fee Agreement regulations courses which I have presented for the lat ten years as part of my own CPD commitment. Comments ranging from ‘waste of time’, to ‘money-making schemes for the clapped out’, etc filled the questionnaires I received. Frankly, some remarks were very colourful and clearly illustrated the resent-ment and irritation felt by many towards the new regulatory structure. The problem I had was that some attendees clearly knew much more than I did about specific aspects of the course seminars (but not everything), so they felt frustrated about being there.

So, how does CPD help you personally then?

A main theme running through current edu-cational thinking requires that evidence be provided that learning has taken place. Ben-efits of CPD aren’t just felt when you’re going for a legal promotion or upgrading your qual-ifications. Many employers in the professions now value ‘learning agility’ as a core compe-tency and this is to be broadly welcomed by the Bar in my view as we enter the new world of more formal appraisals by our peers even in our own world.

These are some of the benefits which the CPD propagandists (to some, ‘money-makers’) suggest: CPD builds confidence and credibility -you can see your progression by tracking your

learning on, guess what, …a ‘form’! You will earn more by “showcasing” your achievements- a handy tool for job/career appraisals, and showcasing is such a handy word! Achieve your career goals by focusing on your training and development, which I felt all members of the Independent Bar actually did. Cope positively with change by constantly updating your skill set… by, presumably, reading ‘The Criminal Law Review’ assidu-ously every month. Be more productive and efficient by reflect-ing on your learning and highlighting gaps in your knowledge and experience. Reflection is the key word here and I have little to disa-gree with the needs to do this regularly.

How does CPD help the Bar generally? As chambers shift the responsibility for per-sonal development back to the individual, the ability and insight to manage one’s own pro-fessional growth is seen as a key strength but just how relevant is this to us? Think of some of the published benefits:• They help maximise staff poten-tial by linking learning to actions and theory to practice (but we are sole traders). • Helps HR professionals to set SMART (specific, measurable, achievable, re-alistic and time-bound) objectives, for train-ing activity to be more closely linked to busi-ness needs (but we are sole traders). • Promotes staff development. This leads to better staff morale and a motivated workforce helps give a positive image/brand to organisations (but we are sole traders). • Adds-value, by reflecting it will help staff to consciously apply learning to their role and the organisation’s develop-ment (but we are sole traders). • Linking to appraisals. This is a good tool to help employees focus their achievements throughout the year (but we are still sole traders).

In quite a few professions now, members (ex-cluding student members) have a profession-al obligation to undertake a minimum of be-tween 30 to 35 hours structured CPD work in any one year, calendar, financial or academic. This, it is often stressed is for the members’ own benefit, and often embodied in codes of conduct. Professionals should also, where possible and appropriate, support the profes-sional development of fellow members and potential members of their profession.It is worth remembering that any profes-sional qualification gained has a limited shelf life when considered against the length of ca-reers. The knowledge obtained when quali-fying does not remain at the same level but is updated by training and personal experi-ences, i.e. by continuing professional devel-opment.To strengthen the regulatory framework, each

year, regulators will undertake random moni-toring of the eligible membership in a given profession. Failure to reply to this monitor-ing does result in some professionals being “monitored” for their CPD commitment for three years to ensure that they demonstrate their compliance. Any failure to undertake these requirements can and now often does result in referral to the Conduct Committee for breach of a profession’s Code of Con-duct. This is probably where the resentment comes in as many barristers I have talked to feel this fetters their individuality, and hence their special freedoms to act as advocates un-hindered by threats from their professional guardians.

Personal Development PlansMany professions consider that it is the re-sponsibility of the individual to determine their own CPD requirements, and can be re-quired to develop their own Personal Devel-opment Plan (PDP) at the beginning of each year to identify development activities they wish to undertake in support of their own objectives. This is when my research showed deep resentment and fears that individuals would, next, be told what they should under-take for development.

THE BUREAUCRACY BITBelow is a typical guidance procedure which many now have to follow for completion of a Personal Development Plan (PDP) and a CPD record card similar to the sort of logs we must keep:

• Your CPD programme is personal — you should complete your PDP at the be-ginning of each year, this will assist you in determining your CPD requirements which should be relevant in your area of expertise or future career ;• you are encouraged to consult with your seniors when developing and reviewing your PDP ;• you must keep a record of your CPD activity — you should then indicate the type of activity and the number of CPD hours un-dertaken on your personal record card;• CPD hours only include those where professional development has been achieved (a dangerous development when suggests that learning must have been seen to have taken place) ;• you should maintain a file of all CCPD activity undertaken — you can show this to employers and clients (do you actually have the time for this bureaucracy) ;• unless asked, you will not be re-quired to send your PDP and record card to your professional body.

You should also:• Use CPD as a necessary (and stimulating) experience to develop new talents and skills which will almost certainly be discussed in the new Education and Skills Bill produced in November 2007 ;

31the barrister

• identify and honestly appraise personal shortcomings in your role as an advocate;• consider interests and responsibilities;• think about changes which affect you per-sonally or the profession at large; • appraise present tasks and performance; • consider career development or transition to a new role; • consider how you will develop corporate, personal, management and technical skills;• define priorities; short, medium and long term needs;• consider time and costs available;• think laterally because your CPD does is not necessarily expensive; • consider networking throughout the Bar and at other professional meetings like the Bar Conference; find practical ways to meet your needs;• expand on day-to-day maintenance of knowledge and skills;• record and re-assess your personal CPD ef-forts on a regular basis;• check progress and discuss with col-leagues;• modify and improve your plan as neces-sary;• avoid downgrading CPD to a hunt for CPD certificates...which is what I found most do!

The activities are the best with the following being recommended for CPD:

• structured reading of books and periodicals (which we do) • use of distance learning text, DVDs and CDs (which we do)• writing articles/academic/professional pa-pers (which we do)• private study including systematic study of literature or learning a new and relevant lan-guage • recording on-the-job research • studies leading to a further qualification or academic award • teaching — for those in practice • practice — for those in teaching • examining or tutoring • committee/community/Institute work which extends peer group learning • CPD clubs

The professional also see to be following a new organised CPD direction which includes: in-house seminars; joint programmes with other practices/chambers; local CPD events, like ones arranged by the Bar Council or other groups; regional or central CPD events, courses, conferences and seminars; struc-tured professional presentations; and pro-grammes organised by CPD consultants. WAIT A MINUTE! Haven’t we being doing this before? So isn’t this just a job creation exercise for bureau-crats? Remember, our profession tells us that we must demonstrate to clients, colleagues and the public at large the commitment, especially of practising members to be well

informed and up-to-date in our spheres of involvement.It is a matter of record that exercising due skill and care depends upon keeping abreast of developments by focusing the individual member’s attention on what is necessary to remain competent by keeping up-to-date and allows the Head of Chambers to develop a structured training scheme for the members of chambers; it shows that (fill in name of rel-evant professional body here) is promoting competence in its professional membership; and it shows the public that it is served by a profession intent on maintaining high stand-ards.

So how does CPD benefit you now we have looked at the personal side?

The benefits of CPD aren’t just felt when you’re going for promotion or upgrading to chartered membership. Human resource managers now value ‘learning agility’ as a core competency and the Bar would appear to be going down this route; build confidence and credibility, you can see your progres-sion by tracking your learning; earn more by showcasing your achievements; a handy tool for appraisals; achieve your career goals by focussing on your training and development; cope positively with change by constantly up-dating your skill set; and be more productive and efficient by reflecting on your learning and highlighting gaps in your knowledge and experience. My research shows that in the view of some this simply does not fit in with the role of the advocate as they see it.

So, as organisations shift the responsibility for personal development back to the individ-ual, which is now happening to a greater de-gree, the ability and insight to manage your own professional growth as a lawyer is being seen as a key strength.

THE PROBLEM IS TOO MUCH REGULATION

Many interviewees felt we now have far too much regulation. To balance this, some sug-gested that, in order to maintain and enhance the quality of legal services that they offer, barristers need to update and develop spe-cialist areas of knowledge and substantially improve their skills, and quite a few judges supported this observation. Furthermore, in the face of increasing competition in the mar-ket for legal services, barristers must have sufficient flexibility to adapt to the changing demands of clients, the profession and their own careers.

We know that the Bar Standards Board is committed to ensuring that the profession continues to offer legal services of the very highest quality, therefore it was decided that all practising barristers are required to com-plete CPD, and there was no democracy in

this decision. Whilst attending courses alone will not guarantee that appropriate standards are maintained, the Bar Standards Board considers that mandatory compliance with a planned programme of CPD is essential if barristers are to maintain and improve their skills.., and the judges agree.

The trouble is, are we getting too top-heavy with the regulation? The answer, from my re-search is a resounding, yet anonymous, ‘yes’, with CPD driving people out because the pro-fession they joined has radically changed. Al-though I thought the reality a little different when the numbers remaining in practice are now steady.

What are our current rules?

In the first three years’ of practice, newly qualified practitioners are required to com-plete 45 hours of CPD, including at least 9 hours of Advocacy Training and 3 hours of Ethics (the “New Practitioners’ Programme”). After the first three years of practice, barris-ters are required to undertake 12 hours of CPD each year, called the “Established Practi-tioners’ Programme”.

The BSB website gives all the necessary ad-vice and paperwork but I did conclude that CPD is very necessary for some but not all. The concept has been imposed because those in authority knew it would not be accepted voluntarily and time will tell whether it is a success or merely an additional element of bureaucracy which most barristers thought they had escaped from by joining the Bar.

I concluded that the CPD system for us is here to stay but it will remain deeply resented unless it is reformed; it treats barristers as though they were back in school, but it also gives a great deal of new information which we might not have seen or heard. I started this review by saying CPD needs reform. It does and the best method suggested by in-terviewees would be a relaxation, and an acknowledgement that barristers should be able to fulfill their own destinies without re-course to disciplinary codes of conduct which appear bullying and intimidating in nature and far removed from the concept of the un-fettered advocate. I fear my conclusion will fall on fallow ground and bureaucracy will continue to rule, stifling creativity and plac-ing more unnecessary burdens on an already overburdened professional to the detriment of his work as an advocate.

NEWSROUND

UP 32 the barrister

Janet Allison is a mother of five

living in Georgia, USA. Recently

she was forced to move from a

four-bedroom home in down-

town Dahlonega to a two-bed-

room mobile home "way off on

a dirt road" because she is a convicted sex

offender and her former home was within a

quarter of a mile of a church.

Allison's situation reflects how residency

laws can affect those who aren't necessarily

sexual predators. She was arrested in 2001

for allowing the 17-year-old boyfriend of her

pregnant daughter, then 15, to move in with

them. She was convicted of being a party to

child molestation.

Allison didn't go to prison, but three of her

children were put in foster care, and she's

not allowed to have contact with her daugh-

ter or grandson. "I didn't touch anyone," Al-

lison says. "I just thought I was protecting

my daughter."

There are problems associated with these

residency restrictions, passed in 27 states

and hundreds of cities in the US over the past

decade, even for those offenders deemed to

be high risk and predatory. Barring them

from living, often in entire cities, because of

overlapping exclusion zones around schools,

churches and day care centres forces many

to live in remote areas where they become

more difficult for the authorities to monitor.

Many don’t register with local police as the

laws require or they give fake addresses.

Many complain they cannot find a place to

live legally.

In Iowa, legislators began holding hearings

in January 2007 on the effectiveness of a

2002 law that bars sex offenders from liv-

ing within 2,000 feet of a school. Sen. Keith

Kreiman, Democratic co-chairman of the

Judiciary Committee, is reported as saying

that he expects the law to be revised but not

repealed. "It is very politically risky to even

hold hearings," he says, because lawmakers

who change the rules could be called "soft

on crime."

We are good at copying the States. We have

pursued this same Catch 22 approach to

crime, not just with sex offenders but gener-

ally. Why? Put simply, being tough on crime

is seen as a vote winner.

Faced with the unintended or unforeseen

consequences of their own actions many

legislatures in the States, like Iowa, are now

seeking to re-frame their Megan’s Laws to

make them not only workable but also less

risky. But this is difficult because once you

have become ‘tough on crime’, how can you

become ‘soft on crime’ without committing

political suicide?

Something else that we emulate the USA in,

as a direct consequence of this political ap-

proach to crime, is a prison population the

size of which is both an absolute disgrace

and an appalling waste of public funds. Of

course those that present a real threat to so-

ciety, a real risk, need to be imprisoned, but

we cannot, and should not be imprisoning so

many others unnecessarily when there are

alternatives.

For the second time last year our prison

population has peaked at record levels and

sticking plaster solutions such as early re-

lease have not stemmed the relentless in-

crease brought about by being tough on

crime. What is the Government’s answer?

Build more prisons.

An average size prison costs around £100

million to build and it costs about £25,000

per year to keep one person in jail – so an-

nual running costs for a 500 bed jail are in

the region of £12 million. What additional

level of supervision by the Probation Serv-

ice would that money buy? Enough to fund

rather more than 500 cases even at risk level

4 one suspects. But how strange that at the

same time that a prison building programme

is being trailed as the solution to prison over-

crowding, we have the announcement of the

Comprehensive Spending Review for 2008-

10 which appears to indicate a ‘flat cash’

settlement for the Ministry of Justice. This

will decimate Probation and the Prison Serv-

ice too is talking about closing if not prisons

then at least wings within prisons – at the

same time as the Government is announcing

the provision of more prison places – 8500

by 2012. Does this make any sense?

If there are no more resources for Probation

then we must begin asking what work is not

to be done. Because much as it might suit

the Government for the Probation Service

to demonstrate infinite elasticity in terms of

capacity, it is not going to happen. Already

in his annual report this year, the Chief In-

spector of Probation has flagged up a seri-

ous concern over resources and capacity and

this even before this CSR announcement.

The message has to be that, like the Prison

Service, Probation too has a ‘No Vacancies’

sign that can and will go up in the window.

That would be very politically inconvenient

because of course the Probation Service

remains the pressure release valve for an

overstretched Prison Service – after Proba-

tion, there is no place to go – no police or

Court cells. The Government cannot go on

demanding more for less. Probation resourc-

es have increased over the past 10 years and

staff numbers also, but workloads have in-

creased at even greater pace.

The Government appear to have boxed them-

selves into a corner with no funds available

– either that or they intend to build them-

selves out in the form of more prison places

with money from who knows where.

A new direction in stringent times

Primarily, we need to reduce the prison population. This proposal in itself is aimed at improving

community buy-in to what Probation does and hopefully thereby the Courts as well. More immedi-

ately we could re-introduce greater professional discretion over breach and recall decisions, so that

we stop sending and returning so many to prison because they’ve not observed all the rules to the

letter

By Mike McClelland, National Chair of Napo

33the barrister

Perhaps there is a third way out?

Probation was known as a social work agen-

cy and is now supposedly a law enforcement

agency. It makes or encourages the people it

supervises observe society’s rules and laws

– indeed the rule of law. Probation staff have

always encouraged, cajoled and persuaded

those who offend to desist. That has always

been a primary task. We have always had

a role also in punishment but that role has

been primarily achieved through depriv-

ing people of their time, of their freedom

– through prison, through unpaid work and

supervision. But we are going to achieve our

greatest successes through the methodologies

of social work, reflecting those values that

we hold dear. Treating people with dignity

and respect, understanding their difficulties

as well as their shortcomings. Empowering

them to move their own lives down less de-

structive paths.

Punishment is an inevitable element in dis-

pensing justice, but in Probation it is only a

start. We do much more, with the same aim

of reducing re-offending, reducing the num-

bers of both offenders and victims – but we

add positive value to simple punishment.

Challenging criminal behaviour is something

the service does well but this third way sug-

gests doing it increasingly differently and in

such a way as to move us all from that corner

described above. This is not moving from be-

ing tough on crime to being soft on crime but

something different altogether and therefore

something that can work politically.

The criminal justice system is supposed to be

re-balanced in favour of the victim. The par-

allel concepts of community and restorative

justice can be used and extended to achieve

this. Already the Probation Service has a

statutory role in respect of some victims but

there is much more that could be done to

take control away from both the State and

those who commit crimes. Victim personal

statements, taken on a longitudinal basis

could be used more to give those who have

suffered crime the opportunity to continue

to reflect their pain, their hurt and their loss

until it goes away. With their permission,

these statements can be used to challenge

those who have offended in supervision by

the Probation Service. And victims should be

given the opportunity for more if they wish it

– for apology, for explanation and hopefully

for re-assurance. The methodical application

of the principles of restorative justice should

be employed routinely.

And by so doing hopefully we achieve fewer

victims over time and fewer offenders too

– for the converse of this process or indeed

the complementary process is to re-instate

people who have offended back in their com-

munities as non-offenders. It’s a process of

repair and restoration.

As much as anything this suggestion involves

more of a change in style and language for

already the Probation Service employs this

approach with many victims. It can be ex-

tended, and thus at modest cost the emphasis

of the whole system might be adjusted with-

out political suicide.

Even so, this proposal would involve some

costs and with no additional resources, in-

deed with the prospect of swingeing cuts

right across the Ministry of Justice how might

it be afforded?

In conclusion then, some brief suggestions

for savings.

Primarily, we need to reduce the prison pop-

ulation. This proposal in itself is aimed at

improving community buy-in to what Proba-

tion does and hopefully thereby the Courts

as well. More immediately we could re-in-

troduce greater professional discretion over

breach and recall decisions, so that we stop

sending and returning so many to prison be-

cause they’ve not observed all the rules to the

letter. Breach and recall should be based

much more on assessments of risk. With the

same objective, we could influence sentencing

by ratcheting down proposals. Proposals

for custody in PSRs should be prohibited, as

they used to be – there are ways of doing this

without making seeming wholly unrealistic.

Generally, Probation should be about propos-

ing the least intrusive disposals that meet the

needs of the case in terms of seriousness and

risk. This will entail a radical re-think over

targets which skew our deliberations and al-

most by definition, “up the tariff”. We must

seek to reverse the ever more punitive trend

- this will save prison places.

Next, a radical review of overheads. The

recent but as yet unpublished review of the

Ministry of Justice recommends that NOMS

should be subsumed into the Ministry it-

self. It is a cuckoo in the nest of Probation

and should disappear along with the ghastly

phrase ‘Offender Management’ Bring back

Probation.

But even if NOMS were to go – and it seems

to be having difficulty even dying with dig-

nity, the concepts behind it may remain. End

to end sentence management. This is accept-

ed and indeed is something that Probation

staff have long sought to achieve, but much

of what NOMS appears to represent, has little

if anything to do with Probation. Contestabil-

ity, service level agreements, business plans,

OMNI transformations etc. All cost money

but do they benefit service delivery? There

is little sign that the balance sheet shows re-

sources are saved by adopting all these won-

derful new ideas for behaving like a private

business. By all means we should operate in

a business like fashion but we are a public

service and should ever remain so.

Constant structural and procedural changes,

changes moreover often without proper eval-

uation, must stop. They are debilitating and

costly. A radical overhaul of targets and ac-

countability together with all the concomitant

bureaucracy that goes with them is long over-

due and could both save significant amounts

and improve professional practice.

Frustration over useless IT systems doesn’t

simmer, it boils over. They need rational-

ising and simplifying. Central IT and es-

tates contracts also, should be abolished. Ac-

credited programmes need to be overhauled.

Maybe they’re good to have but maybe many

of them are too long, too restrictive and just

a bit unaffordable. Lastly, sickness absence

within Probation needs to be addressed but

not utilising the current draconian approach

of many Areas. Management and unions lo-

cally need to address the problems construc-

tively and this means looking honestly at

workloads.

These then are just a few ideas on saving

money without attacking frontline services.

They may sound drastic but we are entering

an extremely difficult phase. Difficult situa-

tions demand drastic solutions and linked to

a new direction, I believe this can work to

everyone’s advantage.

34 the barrister

Burma's circle of history: 45 years of death, torture and persecution

By Niall Couper, Amnesty International UK

Who can forget the blood-soaked images of Burma?Thousands of monks filled the streets of Ran-goon in peaceful protest as August moved into September. The Buddhist monks in the south-east Asian state led a tidal wave of saffron op-posing a regime where child soldiers, torture, and detention without trial are all common practice.Then came the reaction. The gun-fire and batons of an over-zealous military regime. The Burmese government admitted to 13 deaths, the true figure is believed to be much higher. Thousands were arrested and most remain in detention now. Human rights violations continue to this day. It is a sorry picture, but sadly it is also nothing new. The post-war history of Burma is one of military control, violence and continual repression. Below are the tragic tales from three indi-viduals from three different generations – all telling remarkably similar stories.

In 1962, Kundrapu Appa Rao was a medical student at Rangoon University. He lived with nine other members of his family in a flat in the Kandawgyi suburb of the city, a short walk from the famous Shwedagon Pagoda. At the time, Burma was moving into its 14th year of democracy having gained independ-ence from the UK in 1948. U Nu was back in as president, but his policies of promoting Buddhism as the state religion and his toler-ance of separatism were riling the military. “U Nu’s popularity was immense,” said Kundrapu. “He was the Burmese version of Winston Churchill. But the military despised him. “You could sense something was going to hap-pen, and on 2 March 1962 something did.“The military chief of staff, Ne Win, staged a successful coup d’etat and in one swift stroke democracy became a thing of the past.“The military installed a watch on every street corner.“They would make demands on ordinary citizens to do this or that. I can vividly re-call the knocks on our door. One time they demanded that one member of my family go out and clean the streets. My grandfather vol-unteered. He was a bit frail, but he had his pride and insisted. “These demands were happening all across the city and I suppose it was inevitable that discontent would bubble up, but no one re-ally expected that the response from the junta would be quite as brutal as it was.”It came on 7 July 1962. Students at Rangoon University were staging a peaceful demon-stration. Ne Win sent in the troops to disperse them. By morning, 100 students had been

shot dead and the historic Rangoon Univer-sity Student Union building had been reduced to rubble.“News of the shootings spread throughout the city like wild fire,” recalled Kundrapu. “My best friend Tom Parksein had been at the demonstration. We grew up together. He lived on the other side of the street. We used to have a sing song, grab a bite to eat together – all the usual things. That night I feared for his life.“It was a great relief to see him the next morning, but he was inconsolable. Two of his friends had been shot and killed. “The military had stormed in and everyone had scattered, desperate to find a place to hide. Tom was lucky, he hid well. Others were not so lucky. “His friends had leapt off the road into a deep gulley. I knew the spot. It was dark and rea-sonably secluded. They must have thought they were safe. But the army found them and shot them all.“Tom was peace-loving. He did not advocate violence. He just wanted to escape. He was very frightened. A couple of days later he was arrested and beaten up. He was never the same again.“He went back to university briefly, before the authorities shut them all down.“It was around that time that I knew I had to emigrate.“I was the first one of my family to leave, but everyone else followed soon after. My mother went to relatives in India. My dad, who was working for Burmese telecommunications in Rangoon, stayed until 1964. I left in No-vember 1963. I went first to India and then brought a one-way ticket to England on the never never and joined the RAF as an air-man. I never looked back.”

In 1987, Ko Aung was in the last year of an industrial chemistry degree at the Rangoon Art and Science University. Like many other people in Burma he had just reason to be an-gry with the ruling military junta. His father was a Major General in 1962 and was one of 50 people called to a meeting by the military chief of staff, Ne Win, to be told of the imminent coup d’etat. He refused to take part and was kicked out of the military. It was a decision that was to have devastating effects on the family – their import-export tea-leaf business was raised to the ground three times, and Ko Aung’s mother was detained at a military base for six months and repeatedly tortured.“For all those reasons, I was no fan of the regime,” admitted Ko Aung. “But I wasn’t

involved in anything politically. I was just a student.”In September 1987 his attitude changed. The military junta made several of the country’s banknotes illegal overnight.“It was ridiculous. People’s savings were wiped out. I was in the university library when I heard the announcement and I was livid. I stood up and started shouting. ‘We are citizens of Burma, we need to make a stand. We have no money now, how are we going to survive? We cannot let this happen!’

“I’ll admit I think I scared a few people, I re-call loads of students running off, but a few came to me and that’s how it all started.”Later that evening, they symbolically burnt the now illegal notes in the university can-teen and as numbers grew a few government trucks were set alight outside the campus. It was the beginning of an underground student movement. They met secretively, hid in mon-asteries, made contacts in other universities and began to distribute leaflets condemning the regime. The junta became increasingly worried and on 13 March 1988 they began their crack-down. A student called Phonemaw was killed at a demonstration. His death sparked mas-sive protests and a few days later the military regime came down hard again, killing dozens as the students headed to a rally in the city centre.

Ko Aung was arrested and detained for one month. By the time of his release all the uni-versities had been closed down to try and stifle dissent. Ko Aung headed north to his hometown of Daungyunt and formed the Red-Fighting Peacock Student Union, a group of 3,000 like-minded individuals. Other student leaders set up similar networks in their towns and when the universities re-opened in June, they all combined to get to work on building a mass demonstration for 8 August 1988.“We were really careful. We would split into groups of five or six, go into crowded areas, distribute leaflets, make a political speech and then run away. We had no idea how big it was going to be.”

When the day came over a million people took to the streets of Rangoon, with other large demonstrations in other cities across Burma. It was to end with other a thousand dead.“That day the military junta lost it. That day gave me strength. The brutality. The crack-down in front of me. That day. I will never forget that day.”The demonstrations began at 8am. Across

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36 the barrister

Rangoon various groups were gathering out-side key buildings preparing for a 48-hour hunger strike. Ko Aung had led his students to the City Hall. To begin with relations with the police were good natured. It all changed when darkness fell.“At 9pm the police asked us to disperse and I passed that on to the students and said it was their own personal decision. Most chose to stay.“At 10.30, one of the students rushed to me and said they had seen military vehicles leav-ing Aung San Stadium and heading in our direction. Again I turned to the students. I said: ‘You can stay, but they will use force to get you to disperse.’ A voice came back: ‘This is a secure place, we are next to the Swed-agon Pagoda, there are lots of diplomats and embassies around – they won’t kill us here’. Some people left, but most were swayed by that argument. “Then an armoured car and eight military trucks came round the pagoda and blocked one end of the street. And it started.“The killing, the beating, the shootings. I wit-nessed hundreds of students being killed in front of Rangoon City Hall – students that I had led there. People that I was very close to.“I still find it very hard to talk about. This young girl, a close friend of the family. I taught her English and maths. She was like a sister to me. She was just 13 and was one of the students I had recruited. Her name was Nu Nu Ngwe.“She held a Red-fighting Peacock flag and ran towards the armoured car. I shouted and shouted, but she didn’t stop. I tried to push through the crowd, but there were too many people.

“She reached the pagoda and then she climbed up the armoured car. She put her chest in front of the machine gun.“I remember hearing her shout: ‘We are the people’s soldiers, don’t shoot us we are stu-dents. We are your brothers and sisters’.“I tried to reach her to stop her, but I couldn’t. Then the machine gun opened fire. “I just stood there, watching as her body flew backwards and dropped to the street. I ran to her. She was still holding the flag. I was crying and crying. I was in a daze. Everyone around me was telling me to run. I tried to pick her body, I asked for people to help me carry her. But they just told me to flee, to leave her. I wanted to take the body. I wanted to take it, but I left her there. I took the flag and left.“We didn’t have anything against them ex-cept our voices and they started to kill, with bullets and bayonets.”

The killings would lead to the arrival on the political scene of Aung San Suu Kyi, the crea-

tion of the All Burma Federation of Student Unions (ABFSU) and the re-emergence of the former Prime Minister U Nu. All three worked closely together in an attempt to cre-ate a caretaker government. It would prove fruitless as the military continued to clamp down on dissent.There was to be one last demonstration on 19 September. It too was to end in a massa-cre with over 3,000 dead.Ko Aung was arrested two days later and af-ter six months of brutal torture he confessed and spent the next five years in jail.“I got a lot of support from Amnesty when I was in prison. The authorities didn’t want me to know, but I knew that they were help-ing me. “When you are inside prison you try to get information anyway you can. Sometimes it would be hidden in my food, other times it would arrive from a warden.“It gave me strength, it made me aware that the wider world was not going to give up on me.”Ko Aung escaped to Thailand shortly after his release and now lives in the UK, where he is a firm supporter of the work of Amnesty In-ternational and an active member of Burma Campaign UK.

On 7 October 2007, Hlaing Moe Than, a 37-year-old Physics tutor, slipped across the border from Burma into Thailand. It was the end of his direct 20-year fight with the au-thorities.Hlaing Moe Than was an organiser for Aung San Suu Kyi’s National League for Democra-cy back in 1988 and was determined to over-throw the Burmese military junta.In 1990, he thought he had succeeded when the first elections in nearly 30 years delivered an overwhelming majority for the NLD – they took 392 of the 485 parliamentary seats. In-stead the ruling government simply ignored the results and ordered the arrests of hun-dreds of political activists – Hlaing Moe Than was one of them.He was to spend eight years in prison in Mandalay for his peaceful political activities. At the turn of the century there was a brief flicker of hope – relations between Thailand and Burma improved and Aung San Suu Kyi was free from house arrest. It was to be ex-tinguished in 2005, when the government began a review of the constitution which excluded all the main opposition and ethnic groups.Then in 2007 the marches began again. A huge hike in fuel prices encouraged students onto the streets and once the Government refused to back down, Buddhist monks be-gan to get involved. It would lead to the vivid saffron protests that brought over 100,000 people on to the streets of Rangoon in late September. Then came the crackdown on 27 September, Hlaing Moe Than was there to

witness it all first hand.“It was chaos everywhere. I remember three or four boys from a tea shop were curious about the demonstration and came out to look. Then the security forces blocked the street from both ends. People ran into the flats along the street. The military started to attack those who couldn’t get away – protes-tors and onlookers – and arrested about 50 people.“”The boys were about 13 to 15 years old. I saw two of them with blood gushing out of their heads and then both of them fell to the ground where they were standing. The re-maining waiters ran into the shop and were chased by security forces.”People were being rounded up all across the city. A friend of Hlaing Moe Than managed to get a message to him from the Rangoon Tech-nical Institute where he was being held.“He told me that there were about 1,450 pris-oners being here there and 500 of them had head injuries. They needed immediate medi-cal attention, but there was nothing. There was no drinking water and there was no toi-let. None at all.“A huge number of those people being held there were monks. Some of them had been forcibly disrobed. They were given civilian clothes but the monks didn’t want to wear ci-vilian clothes so they remained topless. I was told that the situation was really bad.”In the weeks that followed, the streets be-came eerily quiet even after the curfews were lifted. Night-time arrests continued as the security forces began to target political activ-ists. There were a number of releases, but a large number of monks, peaceful protestors and ordinary civilians remained either detained or still missing.Hlaing Moe Than added: “The Burmese people have sacrificed thousands of lives in the 1988 uprising to show the world that we wanted democracy. In 1990 again we showed we wanted democracy when the Na-tional League for Democracy won the elec-tions. Despite brutal repression in 2007, we showed the world once more that we deserve democracy.“If the international community doesn’t be-lieve that we deserve a peaceful and respon-sible democracy, we will continue to make sacrifices for democracy until the end, but the international community will see tragic events unfold in Burma in the future as they have in the past.“We ask the international community to help us. Don’t leave us on our own. If they [the Burmese government] can’t catch me, they can catch my father or my mother or my brother or my sister.”

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38 the barrister

sarily right. It used to be the view that barristers were instructed by professional clients who would not re-instruct those who were inef-fective who would, in due course,

leave the Bar.

While it is clear that the market is generally adept at identifying the best barristers, it is not necessarily true that it will weed out the ones who perform less well. Anecdotal evi-dence from barristers and judges makes it clear that there are people in some areas of the Bar who, in the view of colleagues at least, are not providing the service that their clients need. The advent of public access means that the barrister is no longer always instructed by “sophisticated clients”. Moreover, solici-tors often instruct outside their own field of expertise and, it has been argued, weaker so-licitors tend to instruct inadequate barristers. Market forces are not a complete answer.

The BSB’s approach, therefore, is that it needs to be able to identify the under-per-forming barrister, to help them to improve and, as a last resort or where the risk to the public is too high, prevent under-performing barristers from practising.

So what is on the BSB‘s quality agenda?

The first step in developing a quality assur-ance system is to identify the core compe-tencies, standards and values expected of a ‘good barrister’. The Bar’s Code of Conduct, the Written Standards for the Conduct of Professional work, together with the ad-hoc guidance on best practice issued by the BSB provides a strong basis for identifying these standards, but there is no stand-alone docu-ment which draws the standards together which is accessible to both the public and the profession and which identifies exactly what is expected of a competent barrister. The BSB has decided to develop such a document, which will underpin the rest of its work on quality.

After defining these standards, the BSB needs to find a way of ensuring that barristers meet them. We think that the most sensible way of dealing with this will, in the first instance, be through Chambers and through feedback from clients and others. The aim will be to encourage barristers and Chambers to seek feedback as to how they are meeting those standards and where they need to improve. The BSB would then seek to monitor that Chambers were doing this. This works in the interests of barristers: all service provid-ers need to be aware of how they are viewed by their clients. By receiving this information they, and Chambers, are likely to benefit by providing a better service and gaining more work. Many Chambers currently adopt this approach.

The BSB considered more heavy-handed methods of looking at quality, including peer review and revalidation. It felt that, at the moment, it would be wrong to introduce these. They would be costly to implement and would not necessarily achieve any more than a Chambers-based approach will.

There are two other areas where further qual-ity assurance may be needed. First, there are

concerns that pupillage does not necessarily provide a consistent quality of training and consistent outcomes for pupils. Many Cham-bers provide outstanding pupillages. There are others where there may be concerns about the level of training that is provided. The BSB will be reviewing the pupillage proc-ess and looking particularly at the training of pupil-supervisors, the contents of pupillages and the mechanisms for assessing whether or not an individual has satisfactorily com-pleted pupillage.

It has also been suggested that CPD can be an important guarantee of quality. The BSB doubts that CPD in its present form provides this. First, there needs to be greater quality assurance of the courses themselves to en-sure that they are at the right level. Secondly, we need to be clear that barristers actually attend courses that suit their needs. A differ-ent approach may be needed than the mech-anistic “12 hours” requirement. The BSB will be looking at this also.

Finally, the BSB will be looking at ways of identifying risk. In every profession there will be a small number of practitioners who are a danger to the public. We need to es-tablish ways of identifying such practitioners. This may involve protocols with other regula-tors, developing systems to identify risk fac-tors and taking another look at whether there should be a professional requirement to re-port misconduct.

This latter initiative will seek to learn from the experience of the Bar Council’s recent-ly introduced Bar Quality Advisory Panel (BQAP). Under this scheme, members of the judiciary and solicitors will be able to refer the poor performance of a barrister to the BQAP. The Panel has no disciplinary powers and will be able to advise the member of the Bar concerned about his or her work, and how to improve for the future. It is hoped that the Panel will help to raise standards at the Bar. The BSB has expressed its support of the BQAP and will observe with interest how effective it is and whether it could be adapted or adopted by the BSB.

To complement its work on quality assuring individual barristers, the BSB is also turning its attention to Chambers. The BSB is cur-rently developing a scheme which will, for the first time, enable it to identify systemati-cally which Chambers are complying with the Code of Conduct and where necessary to take remedial or disciplinary action to address non-compliance. Whilst focussed on Cham-bers rather than individual members of the Bar it will play an important part in the future development of quality assurance at the Bar. It is intended that the scheme will be piloted in April 2008.

In addition to its own work on quality, the BSB is actively involved in the development of the quality assurance scheme proposed by the Ministry of Justice (MoJ) and the Le-gal Services Commission (LSC) for publicly funded criminal defence work. The scheme arises from the recommendation made by Lord Carter of Coles in his Review of Legal Aid Procurement that a proportionate system of quality monitoring should be developed for all advocates working in the criminal, fam-

ily and civil courts. It was agreed that the new scheme should be developed in the first instance for publicly funded criminal advo-cates.

The MoJ/LSC has recently consulted on its proposals for the scheme with a view to run-ning a pilot in 2008. They propose to intro-duce a grading process for criminal advo-cates with assessment based on their skills and feedback from solicitors, members of the judiciary and others. Each grade will have a defined competency framework. Types of criminal case will be allocated into each of the grades and barristers will only be able to undertake work within their own grade. Barristers will have to apply for appointment under a particular grade and can seek to be moved up to a higher grade as their skills de-velop. The consultation paper proposes that the BSB should have a monitoring role in the scheme to ensure that barristers are being graded in a manner that is consistent and evidence based.

In its response to the consultation paper, the BSB expressed reservations over its role in the scheme and raised concerns generally about how the scheme will operate. These centre on whether the proposed scheme will be transferable across the whole profession and whether it will fit with the BSB’s wider approach to quality. The BSB hopes to con-tinue to engage with the MoJ and the LSC in the development of the scheme to ensure that the two are consistent and do not duplicate.

It is clear therefore that quality is a hot topic. Initiatives are being developed by a number of bodies and there is a real risk of over-regu-lation and duplication of quality assurance assessment. The BSB is keen to guard against this. It will develop initiatives on quality that are proportionate and light touch but which have enough robustness to be effective and to carry consumer confidence. In addition, it must not place a heavy burden on the Bar as a whole or prove too costly.

We hope that we have given some insight into the direction that the BSB intends to follow on quality assuring the Bar. It is crucial that the BSB engages with the profession during this process and that barristers are afforded the opportunity to be involved in establishing the standards and values against which they and their fellow members will be measured. The BSB must work in partnership and not against the profession, for without the ap-proval of the regulated, the BSB will not be able to deliver an effective and defensible system. At the same time, the system must carry the confidence of the wider public who must be satisfied that the profession is seri-ous about continuous improvement, quality and accountability.

We are at the start of a long but exciting road. We look forward to working with you on the journey.

Mark Stobb Director of the Bar Standards Board

Oliver Hanmer Head of Standards & Quality

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• Legal Journals on line •

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41the barrister

WIDESPREAD OF CONCERN

REGARDING THE LOW LEVEL

OF DAMAGES AWARDED TO

INJURED PEOPLE IN THE UK

In 1999, a Law Commission report

recommended increases

and

improvements to the damages system,

and indicated that if the judiciary

would not make awards fairer, then

parliament should. For the last seven

years Government has ignored the

recommendations and this simply is not

good enough

By Richard Langton, president,

Association of Personal Injury Lawyers

(APIL)

PRISONS FACE RENEWED

CROWDING CRISIS

As a new Home Secretary and a new

ministerial team inquire into the prison

system with more than usual interest they

face a system buckling under immense

pressure, shocking reconviction rates

and a looming overcrowding crisis.

By Juliet Lyon, director of the Prison

Reform Trust

“REFUTING THE

PROSECUTOR’S FALLACY”

The role of expert witnesses in trials

urgently needs to be reviewed if

confidence is to be restored say Geoffrey

Beresford Hartwell, Professor of Law,

expert witness and former Chairman of

the Chartered Institute of Arbitrators and

Paul Dougan, academic lawyer from the

Law School at Brunel University

3

ISSN 1468-926X

PRICE

£3.00

June 6th - 31st July 2006

Features

Editor: Nigel Simmonds

0870 766 2715

email: info@barristermagazine.com

Publishers: Media Management Corporation Ltd

Publishing Director: Derek Payne

Design and Production: Alan Pritchard

Cambridge Printing Park Tel: 01223 423000

#29

p.20

In April 2006 the Secretary of State for

Constitutional Affairs and Lord Chancellor, Lord

Falconer of Thoroton, issued a paper entitled

“Doing Law Differently”. The paper draws

together many of the Government’s policies with

regard to the legal system and seeks to put them

within a coherent framework. The document

is therefore an argument in favour of change.

Incidentally, the document also involves some

innovations in the use of language, thus:

“The law needs to be done; but the

way we do law needs to change. We

need to do law, but we need to do law

differently.”

Any assessment of a policy restatement such

as this needs to start by going back to first

principles. I would suggest that the success

of any justice system is ultimately dependent

upon two main factors. First the way in which

the system balances the interests of the state,

or the community at large, against those of the

individual. Second, the extent to which the

system is resourced. The Lord Chancellor’s paper,

whilst in many respects a very useful and well

written summary,

fails fully, I would

suggest, to address

either of these two

central principles.

Let me first

summarise the

changes which the

paper advocates.

The main areas of

reform are already

well known. They

include the ending

of the role of the

Lord Chancellor

as Head of the

Judiciary, and the establishment of a Supreme

Court for the United Kingdom. Next the paper

refers to changes to the judicial appointments

process. Then the paper contains some

interesting but somewhat general ideas about

changes in the criminal justice system.

The paper discusses also the reforms

emerging from the Clementi Review of

Legal Services, and, finally, the review

Putting profits before people

p.6

News

“Doing Law Differently” Bar Chairman’s Response

TRINITY TERM ISSUE

ESSENTIAL READING FOR BARRISTERS

14

www.barr istermagazine.com

STEPHEN HOCKMAN QC,

Bar Council Chairman

39

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into the law includes the very latest decision in any field.

www.lawtel.com

p.21

Bar Council welcomes thrust of

draft Legal Services Bill but raises

concerns over important issues of

detail

ILEX secures extended rights of

audience for its members

Est. 1999

“It is not appropriate for people to profit out of

incarceration”

So said Jack Straw in 1995. He was speaking

about the then Conservative Government’s policy

of allowing private companies to run prisons.

As in other areas, principle in opposition was

not translated into government policy. On the

contrary, the Labour Government has proved to

be a more passionate privatiser in the criminal

justice field than the Tories. The latest intention

being, to use the approved euphemism, the

‘contracting out’ – or privatisation, to you and I

– of community probation services.

The first privately run British prison, HMP The

Wolds, opened in 1992. There are now 10

others in England Wales, 9 of which have opened

since 1997. The Home Office claims that the

involvement of private operators has encouraged

innovation and has helped to improve standards

right across the prison estate by challenging the

public sector prisons to up their game. There

is no real evidence for this assertion. What the

private corporations who run these prisons have

been good at is making money (the perfectly

legitimate aim of every business). Cost cutting

is what they know, so the salary of officers in

private prisons is up to a third less than that

of officers in public sector prisons (despite the

fact that they will be dealing with the same

prisoners) and they shave costs by employing far

fewer of them. The real saving is on pensions,

so that no only do staff have low wages in the

private prisons but they will face old age with a

minimal pension. This cost-cutting has had very

real implications for the conditions in which

prisoners are held.

The one area where private prisons could have

made a difference is in overcrowding. They

could have made a stand against the degrading

treatment of packing people ever more tightly

into jails but instead they chose not to: more

prisoners in the market means more

profit and they had no intention of

missing out.

Private prisons also benefit from

p.42

Jacqueline Thomson of

Smith & Williamson, the

accountancy and financial

advisory group, explains how

recent changes to trusts

are affecting inheritance tax

planning for many families

Personal Finance

Supplement

22page

The golden rule when buying

fine art and antiques is to

buy something because you

like it, but do remember that,

like the stock market, fine art

and antiques can fluctuate in

value.

4page

The Alternative Investment

Market (AIM) may have

started life as a minnow, but

it now represents 82% of

all new companies coming

to the market this year and

boasts a market capitalisation

of £74 billion.

page

12

Immunity For Experts-

A Step Too Far

DNA evidence in the

court room

2Why experts need

training

5 22

CURIOUS TIMES FOR CRIMINALJUSTICE

What is going on? Why, during a period of rapidly falling official crime levels is criminal justice apparently mired in almost permanent crisis? Are ministers right about criminal justice failure? If so, what are the implications?

By Richard Garside, Acting Director, Centre for Crime and Justice Studies, King's College

THINKING ACROSS THE DIVIDELord Carter’s report heralds a revolution in the way legal aid services are procured. Solicitors and barristers have each been looking at the implications for themselves, but to date there has been little consideration of the impact on the relationship between the two branches of the legal profession.

By Richard Miller, director, LAPG

PUNISHMENT, PENANCE AND IMPACT: THE VAGARIES OF SENTENCING POLICY.Sentencing has never been so popular a media issue as during the summer of 2006. What has not surfaced is a reasoned discussion of sentencing principles and penal policies.

By Professor Christine Piper, School of Social Sciences and Law, Brunel University

8

ISSN 1468-926X

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October 2nd - December 21st 2006

Features

Editor: Nigel Simmonds0870 766 2715email: info@barristermagazine.comPublishers: Media Management Corporation LtdPublishing Director: Derek Payne

Design and Production: Alan PritchardCambridge Printing Park Tel: 01223 423000

#30

p.20

The Draft Legal Services Bill carries forward most of the recommendations of Sir David Clementi’s Review of the Regulatory Framework for Legal Services. Its aim is to put consumers of legal services at the heart of regulation.The Bill sets out a number of key features of the legal system, which must be upheld under the new regime. These include supporting the rule of law, improving access to justice, protecting and promoting the interests of consumers, promoting competition and promoting adherence to the professional principles. These principles include independence and integrity, the duty to act in the best interests of clients and confidentiality. These are crucial principles for any legal system.If implemented, the Bill will establish a Legal Services Board to oversee the work of the “approved regulators” (called “Front Line Regulators” by Clementi). These approved regulators must ensure that their regulatory

work is free from influence by their r e p r e s e n t a t i v e activities.

The Bar Council is to be an approved regulator and has already taken action to separate these functions. The Bar Standards Board was established at the beginning of this year to take over the Council’s regulatory work. The membership was appointed on Nolan principles and has no connection with the representative side. The Board’s remit is to act in the public interest. The Council is to be congratulated on setting us up so quickly. This will ensure that we will be running with full effectiveness Criminal Justice: Another Major Overhaul

p.6

News

The Legal Services Bill: The Bar Standards Board Perspective

MICHAELMAS TERM ISSUE

ESSENTIAL READING FOR BARRISTERS

12

www.barr istermagazine.com

RUTH EVANS Chair of the Bar Standards Board.

14

Lawtel is the most modern means to ensure that researchinto the law includes the very latest decision in any field.www.lawtel.com

p.21

UK Government urges South Africa to open up legal services market

LAPG launches Carter discussion forum

Est. 1999

On 20th July, Home Secretary, John Reid, announced the latest reorganisation, or ‘rebalancing’ as he called it, of the criminal justice system ‘in favour of the law abiding majority’.The rebalancing is based on five key priorities: protecting the public from violent crime; putting victims and communities first; building public confidence in sentencing; a tighter grip on all offenders; and simple, speedy, summary justice.The document, which is over 40 pages long, contains 24 new proposals. This is just three short of the record set by Michael Howard, in the mid-90s, when he announced a rebalancing of the system.

The main points in the paper include an additional 8,000 new prison places; unanimous decisions by the Parole Board before prisoners are released; that Parole Board members should have experience of being a victim; no automatic third-off discounts for guilty pleas; the end to automatic release at the half-way point on those sentenced to four years or more; the introduction

of bulk processing centres for minor offenders; parental compensation orders for those with children aged 10-years-old or under who commit criminal damage; speeding up the return to custody of serious offenders who breach the conditions of their licence; and extending community service.

The document itself contains no less than 34 references to the word ‘tough’ or ‘tougher’. This contrasts markedly to just one reference to causes of crime, and that is a reference to Hilary Armstrong’s responsibility for the Social Exclusion Unit and the need for liaison. More reform

This is the third major attempt by New Labour to reform the criminal justice system. The first attempt was in 1997, with the publication of the Crime and Disorder Act, which introduced ASBOs, parenting orders, extended curfews, sex offender orders, drug treatment orders and the set-up of the youth justice system. It

p.30

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