Might the plausibility of the UK Supreme Court be undermined by the utterances of retired elderly judges?

With thanks to Legal Cheek for the photo https://www.legalcheek.com/

Once a judge, always a judge? Why do retired judges feel the need to opine on the law?

Joshua Rozenberg highlights the point this week in his intelligent Substack blog, generously titled ‘Top Judge Corrects Media’, with the sub-title ‘International court did not decide that claim of genocide in Gaza was plausible.’ I say ‘generously titled’, as another heading could well have been: ‘Retired Supreme Court Judges get it badly wrong, misunderstand the law and mislead us.’

In an open letter to the Prime Minister accusing the UK of failing to meet its obligations under the Genocide Convention, hundreds of lawyers, including former President of the UK Supreme Court, Lady Hale, and her retired Supreme Court Justice colleague Lord Sumption, asserted that the International Court of Justice had on 26 January 2024 “concluded that there was a plausible risk of genocide in Gaza”.

Evident from the court’s judgment, at no point did the International Court of Justice make such a finding of ‘plausible risk’, nor indeed – given its procedural function at that point – would it likely have done so.

Matters however got worse on Wednesday 24 April when Lord Sumption gave evidence to the Commons Business and Trade Committee. Undeterred by published criticism of his assertion he stuck by his original and demonstrably flawed opinion. Rozenburg reports that it took Natasha Hausdorff, barrister and international law specialist to correct his error.

Stephen Sackur’s BBC HARDtalk interview on 25 April with Joan Donoghue, recently retired President of the International Court of Justice and presiding judge at the time of the decision, clarified the issue once and for all. She explained that the court had decided a procedural issue that the Palestinians had a ‘plausible right to be protected from genocide’. She went on to emphasise that the court made no evidential evaluation of risk of genocide: ‘it didn’t decide that the claim of genocide was plausible.’

In other words, the letter to the UK Government misrepresented the court’s decision, and the signatories to it were wrong.

This highlights the problem of old judges giving their opinions on the law. Not, I hasten to add in relation to Ms Donoghue who simply clarified the court’s position. It was our own retired judges that had opined seemingly unwisely, incorrectly and misleadingly.

Our current UK Supreme Court Judges have a pivotal role in upholding our legal system and preserving the nation’s constitutional integrity. At a time when we question the European Court’s jurisdiction over UK decisions, it is especially important that the Supreme Court retains unimpeached credibility.

Justices currently sitting in the Supreme Court have considerable advantages: support from a body of researchers, reading and understanding precedent in the knowledge that they must justify departure from it; but more significantly, they have each other – a pool of experienced, functional judicial minds crossing generations of lawyers.

As lawyers themselves, retired judges should understand that legal life has a cycle. We start our career by asking questions, then with experience progress to giving advice, and later as judges, we make the decisions. But retirement from judicial office requires a new path, perhaps one where they should stop judging and advising, and return to asking questions?

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The ‘tuning fork test’ for mediators

A post about selecting the right mediator for the right job

On 3 December 2014 I reposted Rachel Rothwell’s insightful article ‘Do Barristers and Mediation Mix‘. Rachel’s focus was whether bringing barristers to support their client at a mediation was a good idea or not.

Interestingly, this week I received the first comment on my post, just under ten years after initial publication. This was from Connie. She raised a slightly different point, but one which I am happy to explore, for it signals three important matters when it comes to the question of having a barrister as a mediator. Does a career fighting cases equip barristers to be facilitators? How do we deal with inevitable bias? And importantly, are mediators adequately regulated?

CONNIE  says:

I was the subject of a workplace mediation where I felt the mediator was very much on the side of my employer. After the mediation I researched the mediator who is a Senior Barrister with a mediation qualification. I discovered a distinct conflict of interest and so reported it to the Legal Services Regulatory authority who astonishingly advised my complaint was inadmissible as this person was acting as a mediator and not a barrister on the day! – How convenient…. So where do I go with this?? There’s no regulation of mediation that I can find – again convenient! So if he, i.e. the mediator wore a bus drivers hat on the day would he be a bus driver?

MY REPLY was:

Connie’s comment is really important. It poses three primary questions in an excellent way: how are mediators to be selected; do they have the high level of intuition and trust in the mediation process to allow it to work; and who checks up on their performance.

For the mediator, mediation is not so much a process but an art. The mediator should leave themselves behind at the outset. They are the accompanist not the players. They support rather than steer. They gently propose rather than direct. They should be continuously alert to their own bias, and park it. It sounds to me that Connie’s mediator failed here, for even if on the day he was impartial, that Connie did not sense his impartiality is of itself a failure of his professionalism.

Which brings us on to selection. Although whilst practicing I was a member of two appointing bodies, I am not a fan of having a mediator appointed by a third party. I prefer a situation in which the parties have a brief chat with several mediators before appointment (the audition), and each agree on the one that has demonstrated their sensitivity to all sides of the dispute. It can be done, and solicitors would be well advised to put together a panel from which a choice can be made, rather than keeping a ‘pet mediator’.

Lastly, who regulates them? Every mediator should be a member of a professional body that prescribes their authority to practice. It is not enough that a mediator is accredited – they need to be a member of a regulatory organisation, e.g. CEDR or Chartered Institute of Arbitrators. I suspect that this mediating barrister simply had undertaken mediation training and was not regulated by a mediation specialist.

What should Connie do? I would go back to the people, body or firm that proposed the barrister as a mediator, furnish them with evidence of the conflict of interest, and ask them what they proposed to do about it. Another approach would be to contact the Bar Standards Board and discuss the issue with them.

Of course Connie should bear in mind that objectivity, impartiality and bias are simple concepts that involve complex undercurrents. It may be found that the conflict of interest contended was in fact no conflict, but a failure to communicate. Either way, it was the mediator’s duty to demonstrate their impartiality at the outset, so as to avoid any subsequent dissatisfaction and loss of confidence in the process.

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Hate Crime and Public Order (Scotland) Act 2021

‘An argument occurred on Coldstream Bridge’….a post about the Scottish legislation intended to target malice and ill-will.

Perhaps you really need a Scottish lawyer to walk you through the Hate Crime and Public Order (Scotland) Act 2021, an astonishing piece of legislation. Clearly I am not he (or should I say ‘they’) and can only examine it from an English lawyer’s perspective. But, like many commentators, I am currently far from happy about what I read.

The Act was passed by the Scottish Parliament and only enforceable to the Scottish town of Coldsteam, south of which we English allow prosecutors to apply for an uplift in sentence under the Crime and Disorder Act 1998 and section 66 of the Sentencing Act 2020.

Whilst the English legislation targets ‘hostility’ as an aggravating circumstance when it comes to determining the level of seriousness and sentence, the Scottish Act concentrates on ‘malice or ill-will’ as essential elements of the crime.

I found myself fascinated to know the difference between the meaning of ‘hostility’ and ‘malice or ill-will’. Apparently, ‘malice’ implies a deep-seated often unexplainable desire to see another suffer and ‘ill-will’ implies a feeling of antipathy or limited duration. These concepts were apparently considered at length by Lord Bracadale and the Scottish Justice Directorate who threw 3,255 words in an attempt at clarity. Hostility, on the other hand, undefined in the English legislation, appears to signify that a person is unfriendly to a type or specific group, or shows that they do not like something about them.

To my simple mind, the difference is that the Scottish legislation makes the motivation the crime, whereas in England motivation becomes a factor in punishment.

Courts have always attempted to look into the souls of offenders, but as a libertarian by instinct I am concerned that courts should be required to focus too much on the issue of ‘intention’ in order to determine guilt – to the detriment of judging the real issue – the act.

Now I am sensing that this constitutes a most challenging post, for me as a thinker and writer, and you as a thinking reader. I should add that I am ready to be corrected by those that understand the issue better than me. But from a point of view based on many years of practice as a lawyer, this Scottish legislation is an undesirable development for both Scotland and the whole of the UK.

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Harry Potter barrister disbarred by BSB

Mr Ronald Bean (a practising barrister) was ordered to be disbarred by a BSB disciplinary tribunal which concluded on 4 March 2025 following findings of professional misconduct in relation to charges brought by the Bar Standards Board (BSB).

The Tribunal found that, in representing Ms Rowling, Mr Bean had implicitly supported her views, namely endorsed social hierarchies, failed to support the lead character’s status as a feminist model, depicted superior races as having a moral obligation of tolerance and altruism towards lesser races, and found the portrayal of house-elves as ‘extremely troublesome’ being written as happy in their slavery. In particular, Hermione’s efforts on their behalf were considered to be naïve rather than explicitly depicting equality. In so doing, the barrister had failed to promote equality, diversity and inclusion.

Commenting on the order, a BSB spokesperson said: “Our mission is to regulate barristers and specialised legal services businesses in England and Wales in the public interest. The BSB Tribunal found that Mr Bean had acted in a way as to bring the profession into disrepute and the decision to disbar Mr Bean reflects the fact that failure to promote equality, diversity and inclusion is wholly incompatible with membership of the Bar.”

This decision is not open to appeal.

Ms Silver Skinn KC, commenting on the decision said, “The Bar of England and Wales has to waken up to the fact that barristers cannot determine what they do and who they represent. If, as a result of their inability to promote the BSB’s new standards, a barrister fails to use inclusive pronouns, denies biological sex or fails to demonstrate that their friend-group is culturally and ethnically diverse, they will be removed from the profession.”

To read more about this topic read Professor Andrew Tettenborn’s excellent article here.

With thanks to Tailor de Jure for the use of their splendid photo

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More on AI that you can’t afford to miss

Thanks to  视觉中国 (@vcgimage) for use of the photo

A post instigated by the recent lecture from Sir Geoffrey Vos, Master of the Rolls and Head of Civil Justice

Sir Geoffrey Vos is a truly modern judge. His court is paperless. His keynote lecture, ‘Transforming the Work of Lawyers and Judges‘ delivered on 8 March 2024 to the Manchester Law Society concerned predictably, artificial intelligence and the law. Early in his lecture he asked, teasingly, when the time will come when a lawyer would be considered negligent in not using AI?

The handful of assiduous followers to this blog will recall that I have previously posted about artificial intelligence impacting on our work, mostly stimulated by presentations from the Master of the Rolls.

Sir Geoffrey posed two principles for lawyers: that we must embrace constructive use of effective technology for better, quicker and more cost-effective service; whilst endeavouring to protect our clients from adverse cyber risks arising from its use.

In judicial guidance for using AI, issued on 12 December 2023, Sir Geoffrey described its limitations succinctly: a Generative AI large language model is ‘trained to predict the most likely combination of words from a mass of data. It does not check its responses by reference to an authoritative database’. In other words, AI sort-of checks its own homework. At the moment of information-generation, the teacher is absent – as is the White Book at the time of marking.

When asked how AI can assist lawyers, it proposed: legal research; drafting documents and contracts; factual/legal case analysis, legal education; drafting letters, memos, briefs and opinions; resolving ethical issues; translation; giving guidance on LawTech and practice management.

Sir Geoffrey was particularly impressed by AI’s contract drafting.

When I asked ChatGPT and CoPilot to draft a tenancy agreement, they provided near-perfect drafts – with a caveat from ChatGPT that I should seek legal advice to ensure compliance with applicable laws and regulations, and a suggestion from CoPilot that I  consult the official Model Agreement for a Shorthold Assured Tenancy provided by the UK government.

When I asked Gemini it responded, ‘I can advise on the existence of resources but cannot provide a legal document like a house letting contract. Here’s why: Legal complexities: Accurately reflecting landlord-tenant laws and ensuring enforceability requires legal expertise. Importance of specific details: Each tenancy agreement needs customization based on the property, duration, and specific situations’. It did, however, go on to identify the Government data base to provide a suitable precedent, and concluded by recommending the use of a solicitor or experienced conveyancer!

AI is unlikely, says Sir Geoffrey, to be optional in the near future. Already it can provide workable outlines, documents, summaries and advices quicker and more comprehensively that its human counterpart. A lawyer that disregards it will be viewed like an accountant using an abacus – maybe right, but possibly negligent.

Interestingly, Sir Geoffrey raised the topic of AI itself being the subject matter of litigation, including liability for its use, non-use or misuse, as well as its content and functioning.

A question remains as regards ‘automated decision making’. As the Master of the Rolls points out, such decisions are regularly and reliably made in other fields. He envisages that decisions may ultimately be made ‘by a machine’ albeit subject to appeal to a human.

Where does Sir Geoffrey leave us? It’s clear. Right now we should be road-testing Generative AI to learn its strengths and weaknesses; where we can use it to advantage, and when we should be cautious. In our professional lifetimes there will come a moment that, without it, we will cease to function competitively.

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What went Wrong?

I am delighted to welcome the Guest Blog from barrister, Jason Elliott.

It’s an everyday story, isn’t it? Teenage showgirl meets married Tory cabinet minister, and they give themselves over to passion while a spy from a hostile nation watches from the wings. This isn’t the latest hapless calamity to befall our current Government. I’m talking about the events that led to the trial of Stephen Ward in 1963.

By Jason Elliot, Editor, Halsbury’s Laws

We all think we know the story – Ward was the well-connected society osteopath and amateur artist who introduced teen showgirl, Christine Keeler, to then Minister of War, John Profumo, at the outdoor pool at Lord Astor’s family estate, Cliveden. Keeler would later claim that in addition to Profumo and other undesirables, she had slept with a Soviet deputy naval attaché (and therefore spy), Yevgeny “Eugene” Ivanov.

So far, so sleazy, but how did a series of events that sound vaguely reminiscent of the plot of a ‘Carry On’ movie result in Ward’s suicide?

If we believe Ludovic Kennedy’s account – and there’s no reason not to – the crowds were gathered ten deep outside the Bailey on the first day of Ward’s trial. Across the street, Fleet Street’s finest had mustered the biggest coterie of cameramen Kennedy had ever seen.

The trial exhibited several features that may seem unusual to today’s observer, and it’s worth examining them in the glare of hindsight. They go a long way to explaining how a criminal trial can go wrong.

Publicity

The trial followed hot on the heels of Ward’s committal from the Magistrates’ Court. It’s worth remembering that all committals back then involved a consideration of the evidence. In Ward’s case, that gave the press the opportunity to comment about matters where they had previously felt constrained.

Although the proceedings against Ward were notable for the absence of both Profumo and Astor, Christine Keeler’s love life had long been the worst kept political secret in the country. Ward’s appearance before the examining magistrate gave Fleet Street the chance to abandon caution to an extent that would have been otherwise unthinkable at a time when two journalists had recently been imprisoned for contempt after refusing to name their sources in relation to events surrounding the compromised civil servant, John Vassall. There can be little doubt that the media circus and resultant public interest operated to Ward’s detriment.

Personnel

The trial was prosecuted by Mervyn Griffith-Jones, who had recently secured his place in the history books by asking the jury in the Lady Chatterley trial whether they would allow their servants to read Lawrence’s work. Given Ward’s lifestyle choices and the nature of the offences on the two indictments that he then faced, (a second indictment alleging the procuring of abortions was never proceeded with), the choice doesn’t seem coincidental.

Similarly, the choice of Judge, Sir Archie Norman, a man with religious leanings, plucked from the Midlands circuit where, in his days at the Bar, he had been known as ‘The Hen’ seems to have done little to redress the balance.

Profumo

History, as we know, tends to be authored by the victor. Profumo’s legacy has become one of a momentary indiscretion followed by a lifetime of charitable atonement. In reality, he committed the greatest offence of his, or any, age – he lied to the House. Ward’s initial unflinching and televised support for Profumo’s dishonesty can’t have benefited the appraisal of his credibility when he came under the spotlight at the Central Criminal Court. And, did I mention, his chum Profumo was nowhere to be seen by then?

Politics

The common wisdom that Christine Keeler brought down the Macmillan Government may well have been overstated – the Tories lost the next year’s General Election by a handful of seats, but there’s evidence that Macmillan, and others in high places, weren’t prepared to take that risk. There’s also evidence to suggest a level of involvement from Home Secretary Henry Brooke in the decision to investigate Ward in the face of high-level police doubts over the ability to secure convictions.

This unfortunate position can scarcely have been assisted by the fact that Macmillan’s wife was enjoying a long-standing affair with Lord Boothby – a name now more widely associated with sexual proclivity than political achievement.

Further political intrigue is added by the shadowy presence of the Security Services. It’s now clear that Ward had been used as a back channel by the Foreign Office, both at the time of the Cuban Missile Crisis and in relation to Berlin. He had a handler, now accepted to have been Keith Wagstaffe, although Ward would have known him under the more sinister soubriquet of Mr Woods from the War Office. Ward’s solicitors sought to call the mysterious Mr Woods as a defence witness, but the official correspondence shows they received a frosty response.

Prejudice

Perhaps unusually, given the level of notoriety that the case attracted, Ward wasn’t represented by a Silk. His counsel, James Burge, sometimes credited as an inspiration for John Mortimer’s Rumpole, found himself on the receiving end of the Judge’s prejudices. Sir Archie Norman even appeared to develop the habit of forgetting his name during the currency of the trial.

Ward didn’t escape the Judge’s opprobrium either. He notoriously – and unfairly – commented in his summing up on the failure of Ward’s society friends to stand by him and provide evidence in his defence.

Perjury

The prosecution’s star witness, Christine Keeler, appeared in four criminal cases during 1963, three times as a prosecution witness and once as the defendant. She found herself indicted for perjury as a result of her evidence at the trial of ‘Lucky’ Gordon. She later pleaded guilty and was sentenced to 9 months imprisonment. Burge knew about the false evidence, and sought to cross-examine Keeler about it, but, in the absence of a definitive ruling from the Court of Appeal, his hands were tied.

Parker

Before the conclusion of Ward’s trial, Lucky Gordon was freed on appeal. The Law Lords were chaired by the then Lord Chief Justice, Lord Parker, and contemporary accounts suggest the manner in which the hearing was conducted was less than transparent, with the Court announcing as fait accompli that they didn’t need to hear evidence. While a note explaining the overturning of Gordon’s conviction was rushed to the Bailey, the wording left much to be desired and could not be used to cast credibility on the evidence of the prosecution’s star witness, Keeler.

Ultimately, Ward was convicted in absentia of two counts – those relating to Christine Keeler and Mandy Rice Davies. It is shameful that a jury was allowed to convict on the strength of Keeler’s evidence without a warning that she had lied in her evidence against Gordon only months earlier.

Police

Ward’s investigation involved disproportionate use of police resources to secure a conviction for relatively minor offences. An idea of the pressure to secure a conviction can be gained from the testimony of a prosecution witness, Margaret ‘Ronna’ Ricardo, who informed the jury that she had provided the police with false statements to implicate Ward because she was scared that she would lose her flat and her young sister would be taken into care. Similarly, Mandy Rice-Davies found herself in Holloway prison for nine days as an incentive to assist the Ward investigation.

What Have We Learned?

The pervading evil of the Ward trial was secrecy. Wagstaffe’s existence and Keeler’s lies were never made known to the jury. The Government commissioned first Lord Dilhorne and later Lord Denning to author reports that Ward had been an isolated problem and nothing else had gone wrong.

Lately, the CCRC have found themselves in the spotlight. It’s worth remembering that the reasons they recorded when refusing Geoffrey Robertson KC’s 2013 application to refer the Ward convictions to the Court of Appeal included the absence of a transcript of the summing up. A cursory look at the newspapers of the day reveals the summing up was reported practically verbatim by the press – so why isn’t it available? The answer is that, along with many other potentially valuable documents, including the transcripts of the evidence taken for the Denning report, the summing up remains locked away until, at the earliest, January 2048. That represents a political decision to cling to secrecy long after the protagonists in the Profumo affair are dead.

More recently, in 2018, a FOIA request was made to the Attorney General’s Office asking about the existence of correspondence linking the late Duke of Edinburgh to the Ward case. The AGO’s response was drafted as a refusal to confirm or deny.

Secrecy and justice make uncomfortable bed fellows, but we haven’t learned the lesson yet. Sixty years have passed since Stephen Ward preferred to overdose on Nembutal rather than hear guilty verdicts announced. There are many reasons for terming his trial a sham. Clinging to the notion of State secrecy as a valid reason for avoiding posthumous justice damages the reputation of the legal system but also encourages adverse speculation against many who were probably beyond reproach.

jason@jasonelliottbarristers.co.uk

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Cyber security and legal practice

Following my certification from Cyber Essentials I discuss what steps are wise for cyber protection.

I understand that I may be the first private practice barrister in England to attain Cyber Essentials Plus certification, initiated by Orlagh Kelly, barrister and CEO of BRIEFED, and delivered by Evolve North, the nation’s premier provider of cyber protection evaluation.

In what was a fascinating process, here are the highlights and how to achieve them.

It was September 2023 that my senior clerk alerted me to the prospect of government funding for cyber security. He told me that individual barristers could apply for grant aid to achieve the Cyber Essentials and Cyber Essentials Plus certifications. The full cost of the Certification was to be covered.

There appeared to be many benefits of such government-backed certifications. In addition to increased cyber security for my personal legal practice, those qualifying may access £25,000 Cyber Insurance, Cyber Essentials Certification, listing in the UK Directory of awarded businesses, and eligibility for various government instructions and tenders.

Having applied and provided my pre-assessment information, by 26 September 2023 I was accepted onto the programme and allocated Andrew Spencer, my personal guide and assessor at Evolve North, a company based coincidentally near my home, in Richmond, N Yorks.

Andrew explained the process clearly. The first step for basic certification involved a self-assessment questionnaire, searching to say the least, that required detailed information on systems used, internet providers, routers, hardware and software. This was then to be evaluated with a view to identifying obvious risks. Second, for the Cyber Essentials Plus certification, was the installation of a scanning agent leading to internal and external vulnerability scanning.

It was mid October when we reviewed the results of the preliminary questionnaire. The detail required threw up a number of significant issues – some of which required more information, others indicating potential vulnerabilities. Accordingly, I provided Signable authority for Evolve North to scan my IP address, allowing them to perform an initial network scan.

There followed a series of TEAMS meets and remedial discussions with Andrew Spencer and Gary Reeves at Evolve North, however by 20 November 2023 I was awarded Cyber Essentials Basic Certification. This completed my first stage, and Jenny Pullin at BlockMark awarded my online certificate.

Having undertaken basic certification I now qualified for the enhanced stage of Cyber Essentials Plus under previously allocated funding. This, it must be said, was far more intensive, requiring the installation of an internal scanning agent on my computer system to perform a user and device assessment. Over a period of weeks my internet traffic was monitored and assessed. This revealed ten ‘critical vulnerabilities’ where intruders could gain control of my system, leading to the compromise of the entire network security. Vulnerabilities at this level could include full read and write access to files, remote execution of commands, and the presence of backdoors.

Additionally, there were twelve ‘high vulnerabilities’ that could lead to leakage of highly sensitive information, two ‘medium vulnerabilities’ giving access to specific information including security settings and three low risks allowing intruders to collect sensitive information. 

I granted Evolve North remote access to my computer and screen-share whilst they took me through a series of steps to eliminate all known vulnerability. This took time, but success – vulnerabilities addressed. Cyber Essentials Plus – awarded on 31 January 2024!

For those who may wish to improve their cyber security but are not yet prepared to undertake a process of certification, these are my basic top ten tips:

1. Make sure that your internet provider is industry-recognised, and only connect to those providers that offer high levels of internet security and protection.
2. Ensure that you have a recent router provided by your broadband provider, that it is fully and securely password protected, and that any repeaters you use are securely linked to it.
3. Limit the hardware that has access to and from your router.
4. Remove all old software (obsolete, unlikely to be updated and protected), and replace with current versions.
5. Check that your virus protection is current and active.
6. Keep your software updated with installation set to ‘automatic”, especially important for your web browser.
7. Ensure that all software changes are individually password-protected with complex code.
8. Disable Microsoft autoplay.
9. Only allow notified updates that you have first recognised, checked and knowingly authorised.
10. Create a separate administrator account (guest account) to take charge of all system changes to your computer. This will alert you to requests to make changes that are sought (or induced).

Whilst these basic steps may provide improvements to your cyber security, they will not ensure full protection. Should you seek professional support? Knowing what I now know about cyber vulnerability, and having historic involvement in computer fraud, I would definitely say you should.

Indeed, with the progress of artificial intelligence, I expect that our professional regulators will require certification. But, that aside, compare the cost and inconvenience of action now, with the devastation of a serious cyber breach and the penalties that will undoubtedly follow.

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The Duke of Sussex – opportunity or setback?

THE HONOURABLE MR JUSTICE NICKLIN
Between:

	The Duke of Sussex	Claimant
	– and –
	Associated Newspapers Limited	Defendant

A post concerning the defamation case brought by Harry Sussex against the Mail on Sunday

If ever there was a mindless death-wish, it is that of pursuing a dodgy defamation claim. That isn’t to say the Duke of Sussex‘ notorious case against the Mail on Sunday is itself ‘dodgy’ – its just that you need big pockets, a strong head, a healthy heart, and lots of time on your hands before you embark on such proceedings. Many have failed; and following failure comes the often-fatal sting of costs, and the devastation of public profile.

Chronology

• 13 January 2020: Harry has audience with the late Queen, Charles and William at Sandringham.
• 28 February 2020: official committee refuses Harry’s request for continued Royal protection.
• 9 April 2021: Prince Philip dies and Harry returns for a visit.
• 1July 2021: unveiling of Princess Diana’s memorial by William and Harry.
• 20 September 20021: Harry issues his application for judicial review (JR) of refusal of security.
• 15 January 2022: Mail on Sunday publish first article suggesting that Harry wants the public to pay.
• 19/20 February 2022: Mail on Sunday publish article claiming that Harry had sought to distort reality.
• 23 February 2023: Harry issues his action against Associated Newspapers Ltd for defamation.

Harry’s claim is that he was defamed in an article published on 19/20 February 2022 by the Mail on Sunday in which they suggested that Harry had distorted reality – by saying that he had always offered to pay for personal security whilst in the UK. The paper’s case was that Harry’s challenge to the government by judicial review (JR) had been a demand for the return of tax-payer funded security. Harry’s case was that he had always made it clear that he was prepared to foot the bill. Was he right? Had Harry sought to distort reality, or was he defamed by the suggestion? That, in a simplified nutshell, is the essence of the conflict.

You may recall that, on his abdication of Royal duties in January 2020, Harry had raised the question of whether he could keep his Royal protection provided by special officers of the Metropolitan Police. We are told that on 13 January 2020 at Sandringham, Harry had a private meeting with the late Queen, his father the King, and his brother William. Of course we don’t know what was discussed there – and may never know – but we do know, despite the concerns of our late Queen, that his request for continued Royal protection was turned down on 28 February by the Executive Committee for the Protection of Royalty and Public Figures (known as RAVEC), the official body charged with making such decisions.

After his return following Prince Philip’s death in April 2021, and for the unveiling of Diana’s monument in June 2021, Harry instructed his lawyers to challenge the decision to remove his Royal protection. His claim for judicial review of the committee’s decision was issued on 20 September 2021. It is said that in his application to the court Harry made no mention of his willingness to pay.

His complaint by way of judicial review was threefold: the official committee had applied its policies in a rigid and inflexible way; they had failed to take into account relevant circumstances; and they had acted unreasonably. One of his main issues was that the committee had not taken sufficient account of the outcome of the Sandringham meeting where it is said, the late Queen was sympathetic to his concerns.

To complicate matters, just before publication of the Mail on Sunday‘s article on 15 January 2022, Harry’s team issued a ‘press statement and briefing’ declaring his willingness to pay for his security rather than it falling as a burden on the public purse; and on the day of publication Omid Scobie tweeted the ‘breaking’ news that Harry had been effectively prevented by the committee’s decision from paying.

And this is the battleground. What happened at Sandringham? Were the discussions there really relevant? Before issuing his court case did Harry make an offer to pay – if so, to when and to whom? Should the Mail on Sunday have known about this? Is their suggestion that he wanted the public to foot the bill, correct? What about the fact that there does not appear to be any process for payment by Harry?

Mr Justice Nicklin appears to be in charge of the defamation case. Having heard the case on 9 June 2022 and again on 17 March 2023, his second judgment delivered on 8 December 2023 makes interesting reading.

“… it is not fanciful that the Mail on Sunday will be successful… in demonstrating that the public statements issued on the Duke of Sussex’s behalf sought to promote the JR claim as his battle against the Government’s (perverse) decision to refuse to allow him to pay for his own security.

There is a real prospect that the Mail on Sunday will succeed in demonstrating that this was a misleading description of the issues in the JR claim, arguably promoted because it was hoped to show the Duke of Sussex’s court claim in a positive light, whereas a portrayal of the JR claim as the Duke of Sussex trying to force the Government to reinstate his (tax-payer funded) State security risked his appearing in a negative light.

I anticipate that, at trial, the Mail on Sunday may well submit that this was a masterclass in the art of “spinning”. And, the Mail on Sunday argues, it was successful in misleading and/or confusing the public. The resulting media coverage relied upon by the Mail on Sunday did, indeed, characterise the JR claim as the Duke of Sussex’s challenge to the Government’s refusal of his offer to pay.

If the Mail on Sunday does establish these facts, then I consider that it has a real prospect of succeeding in demonstrating also that an honest person could have held the opinion that the Duke of Sussex was responsible for attempting to mislead and confuse the public as to the true position (and that this was ironic given that he now held a public role in tackling “misinformation”).

As I have noted above in the context of my decision as to the meaning of the Article, my immediate impression was that it was alleging that the Duke of Sussex was guilty of “spinning” facts to his advantage; as I suggested in that judgment “spinning” can be defined as “the presentation of true facts (and often the omission of other facts) in a way that is designed to give a positive message but which, overall, is apt to mislead”.

Having now seen the sequence of events, in my judgment, the Mail on Sunday does have a real prospect of demonstrating that an honest person could have held the view that this was precisely what was being done on the Duke of Sussex’s behalf.

For all those reasons, in my judgment, the Mail on Sunday‘s honest opinion defence has a real prospect of success. “

Of course Mr Justice Nicklin is not deciding the issues at this stage, simply ruling on whether the Mail on Sunday has shown an arguable defence. Yet, reading his judgment, the future certainly does not bode well for Harry.

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Consultation on budget – Bar Standards Board

A post relating to the proposed increase in budget for the Bar Standards Board, and whether it is fair and justified.

(In this post BSB means the Bar Standards Board)

Malcolm Cree CBE, Chief Executive of the Bar Council, has written to all of the barristers of England and Wales with concerns about a proposed hike in professional subscription charges. Cree’s message reads:

“The budget proposal (by BSB) for 2024/25 represents a significant increase in the practising certificate fee for barristers. The budget covers the work of both the Bar Council, as the representative body, and the BSB, as the body to which the regulatory functions are delegated. The vast majority of the increase in operating costs stems from increases in the BSB’s budget – all of which are detailed in the consultation paper. “

“The BSB has embarked on a major transformation programme, which is necessary, but we have been concerned from the outset at the piecemeal approach to the programme and the fact that the BSB has moved forward with substantial headcount and salary increases before fully understanding the root causes of the performance issues. In our view, their current end-to-end review of enforcement processes should have come first, putting improved efficiency before very substantial increases in resources. There should have been a completely transparent and fully costed transformation programme brief and a thorough benefits realisation plan, as basic programme management discipline requires.

Because of the unplanned and unbudgeted nature of many of the changes in the BSB, it is challenging for the ‘parent’ (Bar Council) to plan ahead sufficiently, and we are almost powerless to challenge our own regulator due to the rules imposed by the Legal Services Board. This situation is simply not what the 2007 Legal Services Act intended, and it is not fair to the profession.”

On 4 July 2023 I penned a post concerning the role and function of BSB. There, I questioned comments made by Mark Neal, BSB Director General in which he stated that self-employed barristers – around 80% of the total – have limited personal interest in how well the Bar as a profession was meeting consumer interests. By way of examples he challenged the independence of chambers to manage their growth and development; the referral process by which solicitors matched barristers with their clients – whether this entrenched inequalities; and whether barristers’ chambers were sufficiently accessible for those with disabilities.

BSB has a job to do in regulating barristers, but I question whether it should be regulating its own growth, reach and influence. The Bar of England and Wales has many overseers. Barristers are vetted by their Inn of Court; they are subject to a strict code of ethics and discipline within their chambers; heads of chambers, senior clerks and heads of department watch their behaviour; they are overseen and critiqued by the solicitors that instruct them; judges watch their every move; and there is a long history of self-regulation by their peers. On every communication, barristers announce mechanisms for complaints. In relation to access and discrimination their services are scrutinised by the Equality and Human Rights Commission under the Equality Act 2010.

For me, the question is not simply one of subscription charges – although as a part-time elder in the profession I will be affected by it. The essential issue is one of reach. Should the BSB be developing/expanding its role to this extent? Does the Bar really need more regulation? Might over-regulation destroy the independence of the Bar, turning us all into civil-service clones?

Am I alone in challenging the need for BSB to enter into micro-management of the Bar’s services and expecting us, and accordingly our clients – to pay for it?

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A museum, its trustees and a blank minute sheet.

A post about institutional reputation, management and honesty.

My previous post (22 August) on ‘governance’ was written before news of the British Museum’s losses broke. We could be forgiven for thinking that this stalwart of British institutions would be impervious to crisis. However, whilst museum managers, director Hartwig Fischer and deputy director Jonathan Williams, appear to have been behind on their job and have now resigned or stepped down, it took the museum’s trustees to step into the breach.

The history of irregularity at the museum is informative. In early 2021 Dutch art historian and dealer Ittai Gradel contacted Fischer and Williams after Gradel had discovered items being sold privately on eBay. He managed to trace them to the museum’s collection and identify the seller through their PayPal account. The directors assured Gradel they had undertaken a thorough investigation and found no improprieties. Gradel reported that Jonathan Williams “basically told me to sod off and mind my own business.”

Fischer, in his resignation statement, said that “it is evident that the British Museum did not respond as comprehensively as it should have in response to the warnings in 2021.” He also apologised to Gradel.

The collapse of senior management has meant that it was up to the museum’s Trustees to set up an independent review, preceded by a statement from their chairman, George Osborne: “I don’t myself believe there was a sort of deliberate cover-up, although the review may find that to be the case.”

George Osborne’s reported response itself raises questions, both about his independence and the role of trustees.

According to their website ‘the Museum’s aim is to hold a collection representative of world cultures and to ensure that the collection is housed in safety, conserved, curated, researched and exhibited.’ It goes on to assert that they are ‘committed to ensuring the Museum is run in an open and honest way.’

Scrutiny of the quarterly minutes of the museum’s Board of Trustees reveals that between January 2021 and March 2023, they met on ten occasions. On none is it recorded that they discussed or were appraised of the concerns raised by Gradel. The single reference to security policy was a fairly bland approval (para 9.1 of the minutes on 7 July 2022) and a presentation and discussion on risks to the collection (minute 4.1 on 1 July 2021). 

Was the Board of Trustees to the British Museum informed of a fundamental risk to the national collection? If they were, when, how, and why is it not minuted? Each of the recent meetings were attended by directors Hartwig Fischer, Jonathan Williams and Christopher Yates, with Jane Whittaker, director of resources and Elizabeth Knight, governance manager also present. Why did they not flag up the concern and explain to the trustees how it was to be resolved?

My overview suggests that either the board’s minutes were not fit for purpose, or that there was a concerted cover-up by executive management leaving the museum’s trustees in the dark.

This raises a further question. How proactive should trustees (or governors) be in their inquiry of their executive officers? Whilst day-to-day management is the executive’s responsibility, might it not be wise for trustees to raise questions about that which they have not been told?….’Are there any matters that have given rise to concerns about which we have not been informed?’

Perhaps had the right questions been asked, some of the wrong answers could have been exposed?

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The conviction of Lucy Letby and lessons for NHS Foundation Trust governors

A post about the governance of NHS Foundation Trusts, and how this can be improved.

The case of convicted murderer Lucy Letby would suggest that when it comes to patient safety, the role of ‘the independent governor’ may be key in holding Trusts and their senior executives to account.

That said, I am yet to read of how, if at all, the Council of Governors at the Countess of Chester Hospital NHS Foundation Trust responded either to concerns or complaints relating to Letby. Did they fulfil any safeguarding function at the time issues were being raised in relation to deaths? Were they even appraised of the conflict between the Trust’s medical team and the executive? If anyone has access to this information, please pass it on so that it may be considered it here.

As some readers may know, in January 2023 I was elected a public governor to the Governing Council of my local NHS Health Trust here in the north east of England. That means that I am one of a team of 36 governors – some like me, elected by lay members of the trust; others elected to represent the trust’s medical staff; and some appointed by the trust’s executive board.

The role of the Governing Council is ‘to hold the Non-Executive Directors of the Trust individually and collectively to account for the performance of the Board of Directors, and to represent the interests of the Trust’s members as a whole and the interests of the public’. It forms a curious line of accountability, but put simply, the governors oversee the Non Executive Directors – who oversee the Executive or management.

The Council of Governors is sometimes referred to as ‘a critical friend’ to the Foundation Trust. Whilst a question of semantics, I question whether the terms ‘critique’ and ‘friendship’ are comfortable bed fellows? As a governor for less than six months, I have already had to question my Trust on an important issue (now resolved). More significantly, together with a public governor colleague, I have challenged my Trust’s process of sharing information with governors, which I felt was operating in a ‘clunky and unhelpful way’.

Which brings me to the point of this post – how best to improve oversight of NHS Foundation Trusts?

Currently, the governor’s function is as follows:

1. To consider the board’s account of its performance against the criteria that the council has agreed with the board and based on the conditions in the provider licence.
2. To question the board on its account and feedback in a considered manner based on the evidence presented (asking for more evidence if necessary and reasonable).
3. In extreme cases, to raise difficult issues and, after listening to the account of the board, to consider contacting NHS England if it forms a reasonable belief that the trust is in danger of breaching the terms of its licence.

As a public governor, I am comfortable with this mandate. Where I sense problems arise is on the topic of ‘information sharing’ by the Trust – how it is done, how timely, with what candour, how comprehensively, and as important, how accessibly?

NHS Trust independent governors can fulfil their role in governance only if they are given early access to important decisions and choices made by the Trust’s executive board. That is not to say that governors should be overloaded with trivial information. Aspects of day-to-day management should remain within the remit (and responsibility) of the Trust’s board – but significant management choices must be shared with the Trust’s governors so that they may decide what should be followed up, and what should be questioned.

I feel confident that in the days to come – whether through a statutory inquiry or otherwise – the role of the Council of Governors will be reviewed. In the meantime it is beholden on NHS Foundation Trusts to carry out their own internal review of governance, and to answer some of the very obvious questions that have already emerged from the Letby tragedy.

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Forty four years a barrister

On 14 October 1977 I was admitted to membership of the Honourable Society of the Middle Temple and just under two years later on the night of Thursday 26 July 1979 in Middle Temple Hall was ‘called to the Bar’.

I retain few records of those early days, but one, an old double ledger accounts book, reveals a membership subscription for my Inn of Court costing £85 (allowing for inflation, the 1979 current equivalent being £518 – although now membership of Middle Temple is only £125) and £9 for my dinners for that term (current equivalent £58.26). To join the students’ association was a further £1 (£6.43). My call fee in 1979 was £75 (£485 – contrast current charge of £125), the cost of my court suit and collars from Coles Menswear was £49.50 (£320), my second hand barrister’s wig £75 (£485 – current cost new is £550), a gown from Ede & Ravenscroft £26 (£168 – current cost £149) and a blue bag £12.90 (£83.50 – current cost £85) – giving a then current equivalent of £2,124) . My first two fees as a barrister came a year later – £75.50 and £50 (current equivalent total £812.38).

To pay my way through the vocational stage and pupillage I worked evenings in a Cafe-Theatre in South Moulton Street, Saturdays selling hats for Charles Batten milliners of Beak Street Soho, and Sundays selling posters and cards at Athena Leicester Square.

In the year of my call there were but 6,500 barristers in private practice. There are nearly 17,000 now. Before the inception of the Combined Court Centre, 144 towns had their original Crown Court (replaced by 92 modern courts), back then housed in Victorian and Edwardian buildings with stone staircases, draughty corridors, clanking heating systems and visiting judges. Being local to the communities they served, the Crown Courts and their feeder Magistrates Courts were attended by local solicitors who would instruct their favourite counsel by hand-delivered brief. At the date of my call the Courts Act had been in existence for just nine years; and not until 2005 was the Lord Chancellor replaced by the Lord Chief Justice as President of the Courts of England and Wales and Head of Judiciary.

After qualifying I would tour the Surrey courts to prosecute criminal cases with a fistful of hand-written instructions from Messrs Wontner & Sons, solicitors for Surrey Constabulary. The Crown Prosecution Service did not exist before 1986, so prior to this, individual police forces instructed local firms of solicitors to prosecute contested charges. Indeed it was the failure of a barrister to turn up at the Inner London Sessions that gave me my first taste of presenting a contested case – and precipitated my move to the Bar.

What about the next forty four years? If I remain part of it, mine will mercifully be a brief role, my appearances in court tending now to be more cameo than lead. But I sense the part played by judges, courts and lawyers will remain pivotal – despite the reduced access to justice due to the cost of litigation and the alternatives provided by dispute resolution and artificial intelligence. Combining the latter could provide the solution to most routine conflicts. Guided by regulated AI, lawyers will be in the ideal position to forecast litigation outcomes and better advise terms of settlement. After all, AI will not only access every relevant statute, expert text, legal authority and judicial guidance, but could import local bias, be it geographic or judicial. I predict future studies in which case outcomes suggested by AI are compared favourably with the actual decisions of judges.

As, when and if that happens – who would want to risk their shirt in court?

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Duke of Sussex – reality check.

Between:

	THE DUKE OF SUSSEX	Claimant
	– and –
	NEWS GROUP NEWSPAPERS LIMITED	Defendant

A post about the Duke of Sussex’s recent litigation and yesterday’s legal decision.

Yesterday’s judgment from Mr Justice Fancourt will have made challenging reading for the Duke of Sussex.

Prince Harry had told the court that his reason for delaying a claim of phone hacking against the Sun newspaper group (NGN) in the Mobile Telephone Voicemail Interception litigation was because:

” a secret agreement had been reached between the institution (the family) and senior executives at NGN (the Sun) whereby members of the Royal Family would bring phone hacking claims only at the conclusion of the Mobile Telephone Voicemail Interception Litigation and at that stage the claims would be admitted or settled with an apology. The reason for this was to avoid the situation where a member of the Royal Family would have to sit in the witness box and recount the specific details of the private and highly sensitive voicemails that had been intercepted… This agreement, including the promises from NGN for delayed resolution was, obviously, a major factor as to why no claim was brought by me at that time…“

 Mr Justice Fancourt was perplexed by Harry’s explanation. He opined, ‘The Duke’s evidence is…contrary to his pleaded case, that in about 2012 there was considerable activity in the Royal Household addressing and bringing voicemail interception claims’.

He went on to say, ‘The terms of the secret agreement contended for by the Duke are surprising in themselves. The pleaded case is that it was agreed between NGN and the Palace on his behalf that the Duke and his brother among others would bring claims against the Defendant only at the conclusion of the MTVIL and at that stage the claims would be admitted or settled with an apology. This, if correct, would require the Princes and others to issue a claim, at a later stage, thereby giving publicity to the complaint, which the Palace did not want, rather than seek to resolve it in private. Further, the terms pleaded committed NGN to admit the claims brought later or settle them, without knowing in what terms the claims would be brought. This seems inherently unlikely, unless the secret agreement related only to the Goodman hacking, but that is not the Duke’s pleaded case’.

Fancourt J continued, ‘The Duke is unable to identify between whom the secret agreement was made, or even who it was who told him about it‘. 

‘There must be credible evidence that carries some degree of conviction that the agreement was made in the terms pleaded, in or about 2012 (in any event no later than the Applicable Date), and that the Duke knew about it and relied on it then by not bringing his claim’.

‘In my judgment it is implausible that the Duke did not remember before March 2023 if a secret agreement was made, as he now alleges, that made it unconscionable for NGN to rely on a limitation defence against him at all…It is not, in my view, realistically possible that the Duke confused assurances about which he learnt in 2018 with a secret agreement on which he positively relied in 2012 by not bringing a claim. Nor does he say that he did confuse them: there is simply no explanation’.

‘But the problem with the Duke’s pleaded case is that there is nothing other than his rather vague and limited evidence to support it: there is no documentary evidence that supports a case about 2012 and his reliance; there is no evidence from those acting for the Royal Family at the time who might have been expected to support his account, if it is correct; and his own previously pleaded case and evidence in other cases are inconsistent with it’.

‘I am satisfied that there is no reasonable prospect of the Duke proving at trial that he did not know and could not with reasonable diligence have discovered facts that would show that he had a worthwhile claim for voicemail interception in relation to each of the News of the World and The Sun. He already knew that in relation to the News of the World, and he could easily have found out by making basic inquiries that he was likely to have a similar claim in relation to articles published by The Sun’.

As with our late Queen Elizabeth’s response “while some recollections may vary” in answer to Harry and Meghan’s assertions of challenging years and racial comments at the Palace, it seems that Mr Justice Fancourt was also trying his best to be diplomatic.

But the problem now for Harry is that Mr Justice Fancourt’s judgment has effectively declared Harry’s evidence as ‘implausible’, stopping short of calling him a fantasist. The Palace’s policy not to comment, and certainly not to litigate, seems exceedingly wise when viewed in the light of this event.

Now, there remains a question for the King. What will he do to stop his errant son?

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The Bar, Inns of Court and the Bar Council

A post about the role of the Inns of Court and Bar Council.

On Saturday 13 June 1541, writer C J Sansom‘s fictional character Matthew Shardlake, a sergeant-at-law of Lincoln’s Inn, was called on by King Henry VIII to accompany his ‘progress to York’ where the King was due to parley with King James IV of Scotland. In his Shardlake series, Sansom – historian turned lawyer turned writer – provides a near perfect picture of the medieval Bar.

However, it was three hundred years before Shardlake that King Henry II first sent judges onto circuit. Those in need of representation before the King’s Justices could be helped by a literate friend, the narrator, whose task would be to read out the pleadings. The early narrators were to evolve into our first barristers, later granted exclusive rights of audience in the Court of Common Pleas.

The band of medieval narrators turned barristers was small and confined to the London Inns of Court. During the legal terms of Michaelmas, Hilary and Trinity, Sergeants and their apprentices who were not travelling with the judges would reside within the Inns close to the King’s court, leaving their wives and families to manage their country homes and estates in their absence. Their Inns supported every aspect of the barrister’s existence – his education (the first women, Ivy Williams and Helena Normanton were not admitted until 1922), his call and, helpfully, his professional development from apprentice at law – to sergeant – to judge.

Moving fast forward to 1970, the decade of my call, a few barristers had already migrated permanently from London to live and practice exclusively on the circuits. Leeds had acquired 65 barristers, there were 13 in Bradford, 13 in Sheffield, 7 in Hull and 27 in Newcastle Upon Tyne, making a total of 125 resident circuiteers. I moved from my chambers in the Temple to circuit in 1989 and by 1990, according to our chamber’s first brochure, there were 24 barristers practicing from York. Today the North Eastern Circuit has grown to over 1000 members of which my chambers comprise 104. Barristers of England and Wales numbering 17,000 are compulsory members of the Bar Council.

It was in 1883 that the Inns of Court formed a Bar Committee to provide ‘one voice’ for barristers. Twelve years later they funded the Bar Council, passing responsibilities for education and regulation which had become too onerous for the existing Inn structures. Now the Bar Council takes charge of almost all aspects of professional regulation – some which the barristers relish, such as education and guidance; some we tend to resent, such as management and discipline.

Yesterday, Mark Neal, Bar Standards Board Director General, questioned the current working practices of the Bar of England and Wales, suggesting that barristers may not be meeting the interests of their consumers (do follow the link to read the full text). To his credit, Joshua Rozenberg KC weighed in on his Substack blog in defence.

It may well be that Rozenberg KC makes a very good point. The purpose of having a Bar Council was to relieve the Inns of Court and provide positive benefits for barristers. Is Mark Neal’s intervention an example of the tail wagging the dog? Must our Council now seek to regulate all aspects of our professional lives and operations?

Matthew Shardlake would probably have shrugged off the Bar Standards Board’s intervention, ignoring it as he saddled up his pony ‘Chancery’ to ride off with his clerk Jack Barak in the opposite direction. Maybe Sergeant Shardlake has an important professional lesson for us all?

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Sir Geoffrey Vos MR and the 20th Annual Law Reform Lecture

A post arising from the keynote presentation from Sir Geoffrey Vos, Master of the Rolls, relating to artificial intelligence and the law.

He doesn’t use paper unless he has to. If you appear in his court you will need to be digital.

Sir Geoffrey Vos MR presents a refreshingly modern wind blowing through the civil courts. On Thursday 22 June, in the 20th Annual Law Reform Lecture from Lincolns Inn, he envisaged a clear role for artificial intelligence in managing legal conflicts, helping to resolve them, and delivering digital justice.

Let’s start with acquiring information. Whilst current AI bots scour the entire World Wide Web using the Hypertext Transfer Protocol (HTTP), Sir Geoffrey anticipates a legal AI that will work through a closed portal using application programming interface (AAPI) to link only to government legislation facilities, recognised case report services and established practitioner guides such as the White Book. Being a closed source would eliminate incursions of the mad and the bad. Available to the public at large, using predictive analytics, this could provide a safe, understood, advisory chatbot steer (formerly of the type given by lawyers) whilst ensuring transparency of sources.

Dispute resolution involves more than court hearings. Sir Geoffrey expects actual and potential conflicts to be diverted through ADR systems via AI that will propose outcomes before parties proceed to litigation. It would promote mediation and arbitration as a key mechanism to resolve civil disputes.

A third tier would be AI for lawyers, enabling document drafting (including, says the MR, drafting submissions), document analysis, due diligence, and specialist problem-solving legal case analysis and research. To avoid the terrible fate of US Attorney Steven A Schwartz any offering would need to hyperlink to verifiable and verified sources!

The final area would be during the court process itself, in which AI could play a part in signposting information for the judge, proposing analysis and offering solutions. Save for routine cases, the final adjudication would, of course, be down to the judgment of a human judge.

To prepare ourselves for AI, Sir Geoffrey suggests that we need to reduce our dependency on text-readable documents, such as Word and PDF and move from the ‘digitally accessible’ (requiring translation by the bot) to the ‘machine readable’. Here it seems, the Master of the Rolls must have been reading my previous post from June 2021.

Supporting Sir Geoffrey was a dream-team panel composed of Jamie Susskind (11 KBW), Shoban Iyer, FCIArb (Swan Cbrs) and Dr Matthew Lavy KC (4 Pump Ct), chaired by Eleena Misra KC (Old Square Cbrs). A question for them related to the regulation of AI.

Overall it was felt that process-only systems may require little or no oversight – they would either be found fit for purpose or be speedily changed. However, regulation would become more pertinent in those areas where the AI bot was allowed to roam, picking up uncertified information that, with possible bias in algorithms, may result in untoward outcomes. The use of closed portals would obviate the necessity for this (assuming the sources too were protected), although transparency as to the sources they access and source management would be needed for credibility.

When huge, influential intellects like that of the Master of the Rolls not merely engage, but lead on artificial intelligence, the rest of us day-to-day lawyers should wake up and smell the coffee, as they say. AI is already included as a study module to cater for the law students who (to continue the analogy) will be our profession’s future baristas.

Perhaps now is a good time for you to check out ChatGPT. When I asked it, ‘What role will AI take in UK legal services?’, the bot responded with the answer set out in full below. Yet a question occurs to me: had the bot not known I was a lawyer, would it have added its last placatory paragraph?

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‘Artificial Intelligence (AI) has the potential to significantly impact various aspects of legal services in the UK. Here are a few roles AI is expected to play in the legal field:

1. Legal Research and Document Analysis: AI can assist lawyers in conducting legal research more efficiently by quickly analyzing vast amounts of legal texts, cases, and precedents. AI-powered algorithms can identify relevant legal documents, extract key information, and provide valuable insights, thereby saving time and effort.
2. Contract Analysis and Due Diligence: AI can be utilized to review and analyze contracts and legal agreements. Natural Language Processing (NLP) algorithms can extract relevant clauses, identify potential risks or anomalies, and help lawyers in due diligence processes. This can enhance accuracy, speed up contract review, and minimize errors.
3. Predictive Analytics and Case Outcomes: AI can leverage historical case data to predict the potential outcomes of ongoing cases. By analyzing past judgments, legal arguments, and contextual factors, AI algorithms can provide insights into the probability of success, helping lawyers make more informed decisions and develop effective legal strategies.
4. Legal Chatbots and Virtual Assistants: AI-powered chatbots and virtual assistants can provide basic legal information, answer frequently asked questions, and guide individuals through legal procedures. This can improve access to legal services, especially for those who cannot afford traditional legal representation.
5. E-Discovery and Data Management: AI can streamline the e-discovery process, which involves the identification, collection, and review of electronically stored information (ESI) for legal cases. AI algorithms can analyze large volumes of data, identify relevant information, and flag potentially privileged or sensitive data, making the process faster and more accurate.
6. Compliance and Risk Management: AI can assist in monitoring regulatory compliance by analyzing vast amounts of data and identifying potential risks or violations. This can help organizations stay updated with legal requirements, detect patterns of non-compliance, and mitigate legal risks.

It is important to note that while AI can offer numerous benefits to the legal sector, it is unlikely to replace human lawyers entirely. Legal expertise, judgment, and ethical considerations are crucial elements that AI currently lacks. Therefore, AI is more likely to augment legal services and empower lawyers rather than replace them.’

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Parliamentary process: a battle for supremacy

A post concerning Boris’ departure from Parliament

The problem with supremacy, by its fundamental nature, is that it is absolute. Supremacy cannot be shared. You have it, or you don’t. It’s all to do with power.

We have always revered power and order. That is why we have Kings, Prime Ministers and Parliaments. We crave to know who tops the order – to fear, to revere; to challenge or to obey. Battles for supremacy are as old as time itself. Conflict between former Prime Minister Boris Johnson and Parliament comes as no surprise.

Regular readers of my blog may recall two previous posts relating to the exercise of power – from September 2019 concerning Boris Johnson’s prorogation of Parliament; and November 2022 relating to Prime Ministers’ use of prerogative powers.

The proroguing issue concerned a legal challenge to the government by Gina Miller, determined in the Supreme Court with a judgment from former President Brenda Hale. Miller’s case was that the Boris Johnson had sought to remove parliament’s oversight of Brexit by ‘standing Parliament down’ for an extended period. The Supreme Court determined that this was unlawful. Parliament was sovereign – it alone held the ultimate authority and could not be shut down by the executive. Hale LJ put it thus, ‘The sovereignty of Parliament would… be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased’.

The prerogative powers, formerly held exclusively by Kings but now wielded by their Prime Ministers again came under scrutiny by former Lord Chief Justice Igor Judge, when discussing Prime Ministerial appointments to the House of Lords, and PM Liz Truss’ attempt to exercise presidential powers, forcing through fiscal measures without Parliamentary oversight and ratification.

To consider the back-story of the struggle for supremacy we need to return to 1610 and King James I, son of Mary Queen of Scots. His battle was with Lord Chief Justice Edward Coke in the cases of ‘Dispensing Power’ and ‘Prohibitions del Roy’, the latter reported at [1607] EWHC KB J23. In Coke’s case notes (page 126 & 38) he wrote,

‘in Things which are not incident solely and inseparably to the Person of the King, but belong to every Subject, and may be severed, there an Act of Parliament may absolutely bind the King’…..‘The law of England is divided into three parts, common law, statute law and custom; but the King’s proclamation is none of them … and it was resolved that the King had no prerogative, but that which the law of the land allows him‘.

It is possible that legal history will report on ‘Partygate’ with more elegance than does currently the popular press. The House of Commons Committee of Privileges, representing the supremacy of Parliament, concluded that Parliament had been deliberately misled. Johnson’s assertion of ‘Kangaroo court’ to Parliament’s right to regulate itself was seen off. Had he not resigned he would have been suspended and likely expelled by his electorate under s.14 Recall of MPs Act 2015.

Boris Johnson’s challenge was not to a random committee, but to a sovereign Parliament. Perhaps this is why his departure from front-line politics was inevitable, and proves more than timely?

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Judgment v artificial intelligence

A post – not about who we are and how we travel; but about our destination.

This week’s lightbulb moment came whilst listening to Professor Richard Susskind OBE KC(Hon) in his lecture to the Hebrew University of Jerusalem on artificial intelligence and the law. Susskind illustrated his talk with a photograph of a famous drill. ‘That’s what we do, isn’t it’, was apparently Black & Decker’s question to new recruits, for them only to be corrected if they concurred. ‘No, our focus should be on the best way to achieve the hole in the wall’.

For too long lawyers have been preoccupied with our legal processes – the landscape of litigation – rather than the outcome. Whether for professional self-survival, tradition, conservatism or simply lack of imagination our profession has maintained its old ways, just as it did (and still does) with the wig and gown.

A few days ago I attended a local court where a case had been listed before a senior judge. Five advocates prepared an agreed order whilst waiting for the case to be called on. Then we were informed that the listing officer had slipped up and we had neither a court nor a judge. Rather than finding a spare one to approve the draft, after a long wait we were told that the hearing would be ‘vacated’ and we should come back another day. By then a legal bill of over £3k had been incurred – seemingly for no benefit. It was time to rebel. Instead of departing as instructed we refused to leave until our draft was reviewed. Within minutes the case was sorted.

This event highlighted a number of questions. First, how could a seemingly important legal process be so easily derailed. Second, did we ever need a costly hearing with a judge? And third, how can we overcome such problems for the future?

An answer is for courts and judges to become less technologically myopic. With access to case databases, using accurate predictive compliance and artificial intelligent systems, a ‘case management app’ could prepare a fool-proof order in a fraction of a second. We already have the capability and much of the transformational software. We just need to recognise the inevitability of AI and to take the step to automate the preparatory processes leading to contested hearings.

Legal services have long been unaffordable without significant wealth or public funding. ‘Intelligent’ systems to manage cases may have some way to go, but AI could prepare the documentation that is required to conduct a case, providing cheaper, better and quicker risk-avoiding processes. Says Susskind, given that simulated neural networks are doubling every 3.5 months their development will be 300,00 fold within six years, out-performing lawyers due to AI’s vast databases, improved algorithms and heuristic processing power.

On the question of artificial intelligence versus human judgment, to what problem is judgment a solution? Clients want a fair resolution without human mistakes. How better to manage these processes than to deploy a tried and tested higher-level intelligence rather than an over paid lawyer?

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Migration, asylum, designated places and extradition

A post intended to throw a little light on a misunderstood (or disunderstood) topic.

Let’s get straight to the point. The laws relating to regulation of entry to and forced departure from the UK have been an historical mess, and the fix is neither clear nor simple.

As a reaction to the horrors of World War 2, key nations met to sign the Refugee Convention of 1951 that bestowed on foreign migrants a shower of human rights. Questions remain – is the convention an essential anchor to fundamental human rights – or merely a brake on progress for change given the current migration landscape? Should the convention rights be unchangeable, or may they be qualified given criminal exploitation?

In medieval England, nationality was quite a straight forward topic: you were either a subject who owed allegiance to the monarch; or an alien. Empire and colonies complicated the issue slightly, but nevertheless our laws, for example the Commonwealth Immigrants Act 1962, managed to regularise our citizens of the dominion.

In 1687 England faced its first modern migration challenge when 50,000 Hugenots, French protestants fleeing Catholic oppression, began to arrive on English shores. Eighteen years later in 1705 we saw the first ‘Alien Act‘ aimed at the Scots after their ‘Act of Security‘ sought to oust the jurisdiction of the British Parliament on the succession of the monarch; and nearly a century later followed the Aliens Act 1793 aimed at regulating those fleeing the French guillotine in Paris.

In 1848 the Irish potato famine produced the first mass migration, London, Liverpool, Manchester and Glasgow alone sharing about 300,000 immigrants; and 1881 saw a huge migration of Jewish settlers, resulting in the Aliens Act 1905. This piece of legislation proved a turning point for Britain, being the first Act of Parliament that sought actively to control migration.

Progressing to modern times of the last century, two world wars brought about a significant global movement in populations, estimated in the millions, hence the introduction of the British Nationality and Status of Aliens Act 1914 which for the first time codified common law and statute.

World war one led in 1920 to the appointment of the ‘League of Nations High Commissioner for Refugees’, the office that oversaw the 1933 Convention Relating to the International Status of Refugees. It was this organisation that was to morph into the United Nations Relief and Rehabilitation Administration, later the Office of the United Nations High Commissioner for Refugees (UNHCR). 

And then we reach the moment of the Refugee Convention Relating to the Status of Refugees 1951 which the UK signed in 1954. This convention produced a pivotal change in thinking, removing a case-by-case resolution of migration, to replace it with the global rights system which persists and binds the UK today.

Three years earlier the British Nationality Act 1948 had set about defining ‘nationality’ through citizenship. Then in 1962 the Commonwealth Immigrants Act sought to stem the tide of commonwealth migration to the UK by restricting entry to those with work vouchers (closely followed by the 1968 Act of the same name in response to the movement of Kenyan and Ugandan Asians). Within three years the Immigration Act 1971 was passed to control immigration and provide for deportation; closely followed by the British Nationality Act 1981 dealing again with the right of abode in the UK. Both of the latter remain in force.

The Immigration and Asylum Act 1999 sought to improve arrangements for removal from the jurisdiction, notification of suspicious marriages and provision of passenger information for those arriving in the UK. Within three years the Nationality, Immigration and Asylum Act 2002 made provision for the deprivation of British nationality and introduced the ‘life in the United Kingdom test’ and reintroduced the ‘Oath of Allegiance’. The Immigration, Asylum and Nationality Act 2006 (modified in 2014 and in 2016) went on to deal further with appeals, deportation on the basis of national security, employment of immigrants and financial support afforded to them. A year later saw the UK Borders Act 2007 enacted to introduce biometric registration and deal further with deportation. Meanwhile the Extradition Act 2003 brought in a much needed framework to expedite removal of criminals.

Now we have the Nationality and Borders Act 2022 which seeks to further regulate asylum applications, accelerating appeals, addressing modern slavery and providing removal of migrants to a safe country. It is supported by Exclusion (Article 1F) and Article 33(2) of the Refugee Convention which advises on circumstances in which an individual may be excluded from the convention.

Even in this selective outline, you will appreciate the mess, especially were you to follow up all of my embedded links placed in the blog post.

In reality, the UK borders, migration and asylum policy has been made on the hoof, reacting to the latest perceived problem rather than fashioned to balance community interests and individual rights.

As a simple commentator, I wonder why nobody has taken on the task of a root-and-branch legal revision in simple terms: setting out the indispensable human rights against community interests to provide a definitive pathways to navigate between them? Perhaps a twenty first century starting point would be to enable applications for asylum to be made digitally, safely and securely from outside the jurisdiction rather than a designated place within it?

Immigration lawyers may have some answers. But I suspect your guesses may be better?

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Born into care

A post examining improvements that can be made to short notice hearings when the state intervenes at birth.

The family justice system in England may require new born babies to be removed from their parents and taken into local authority care for their protection; and such cases have been increasing.

This was the topic hosted by Lancashire County Council in today’s webinar ‘Born into Care: Developing best practice guidelines for when the state intervenes at birth’. It focused on how to:

• disseminate the findings from the Born into Care research to local authority and private practice lawyers, barristers, Cafcass officers and Judges;
• disseminate work being done across Lancashire in children’s social care and midwifery to implement the guidelines for good practice; and
• hear the voice of parents who have lived experience of care proceedings involving their babies.

The ‘Born into Care‘ study undertaken by the Nuffield Foundation comprises 63 pages of research and findings covering all of the areas in which professionals intervene to remove children. This post addresses preparation for the court hearing alone, so the assiduous reader may well wish to reference the complete study for context.

Pauline, a public contributor to the webinar, spoke of the trauma of being told that she must attend an urgent hearing soon after the birth of her baby. She recounted how she was required to leave her child in the care of others, not knowing whether they would be reunited. After missing the bus to court, on her late arrival she was afforded no court familiarisation, but required to wait alone. Her participation in the hearing was minimal, but fortunately she was given some keepsake clothing after the decision to remove her child was made.

To my question of Pauline about the role of video connection to a hearing room, her answer was clear. For her, remote connection would have been massively helpful. HH Judge Clive Baker DFJ Cumbria followed this up with a further question of what steps could support this.

And this is what we found.

First, a private facility should be available for new mothers to electively connect remotely to a court with trusted information technology support. This may be a hospital room, separate health visitor facility or solicitor’s office that would enable mother and baby to be together whilst supported by her advocate, nursing professional or social worker. In one move the arrangement would avoid separation, travel, corridor waiting and isolation.

Before connecting to a live hearing, mothers and fathers who attend remotely should be afforded a five minute familiarisation in which they are connected to the court room, the layout explained and the advocates introduced. Parents should be reminded of the process: who speaks first, what the judge will want to know, and when a decision will be made.

Prior to the hearing day, the ‘short-notice hearing’ should be explained with care so that parents are prepared. This could be undertaken by the midwife, social worker or health visitor in situations where a solicitor is yet to be appointed. Clearly, a short and simple written guide to this end would be helpful.

Where the pregnancy is known and a removal hearing is a possibility, local authorities should arrange an inter-disciplinary meeting after 12 weeks gestation so that information may be shared and a bespoke pre-birth plan agreed.

The suggestions set out above are simple, affordable, easily implemented and would be effective. Requiring the attendance of parents at first hearings should not be routine and certainly not imposed by designated family judges. Whilst there may be occasions when new mothers must attend a live hearing in person, the court should make such demands only where necessity dictates, taking into account the wishes of parents and the advice of those that know them.

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Four day week. Would it work for you?

A post considering the recent outcome of the Cambridge study into the four day working week, and its potential application to English courts.

A four-day week makes workers fitter, happier and more productive, as well as increasing companies’ revenue by more than a third, according to a Cambridge University study involving 61 UK organisations.

Leaving aside the significant improvement in employees’ health and outlook, productivity did not appear to fall over the six month trial, revenue appeared buoyant, and in consequence 56 of the pilots confirmed that they were to continue with the scheme.

Of particular interest was the way in which employees were willing to find efficiency gains themselves, being less inclined to kill time and actively seeking out technologies that improved their productivity.

I remain a member of a profession that mostly works under stress, with challenging caseloads that can quickly result in practitioner burn-out. Colleagues report that they rise before dawn to deal with a backlog of routine tasks, and frequently work until midnight on case preparation for the following day. It seems too that our judges are not exempt from these pressures.

Could a four day court week actually result in improved productivity of our profession and our courts whilst reducing the pressure on practitioners and court users?

Whilst court administrators and judges (including the President of the Family Courts) have reactively side-lined some of the technological/digital developments made during the pandemic, especially relating to remote hearings, Covid has revealed that there remain boundless opportunities for improved case management.

To start:

The portal. Implemented during the pandemic, the family case portal now provides real-time, up-to-date access to the evidence and orders in all public law cases involving children, and has the potential to replace most formal administrative hearings. With a little tinkering, directions could be proposed online, that information flagged by email or text, and a case not be listed unless a direction was opposed. Saving potential: a judicial day each week.

Where administrative or procedural appointments are required, much greater use could be made of the remote hearing. On average attended hearings only take between 30-60 minutes of court time, but frequently require the attendance of a minimum of three advocates with a collective travel time of a working day. Add to that waiting time wasted for advocates to be present, court rooms to be staffed, parties to be accommodated and courts available, and much wasted time could be avoided by a strict schedule of online appointments.

Experts and professional witnesses. It should now be apparent that there is very little merit in requiring expert or professional witnesses to attend court when their evidence can be efficiently received and reliably tested on video link – avoiding the necessity for doctors to leave their hospitals, or scientists to quit their laboratories. Propositions to experts constitute an entirely different class of questioning compared with other witnesses. It is inconceivable why they should be called to attend a court in person.

Sticking to the rules. Our family law procedure demands that statements be prepared and exchanged in advance of hearings, so that everyone knows what the witness will say. In a recent public law family case, an advocate sought to question their own witness for an hour, rather than tender them for cross examination. If we as advocates stick to the rules and ask pivotal questions of witnesses rather than prefacing with rambling propositions, a five day contested hearing could be contained in four.

Submissions. As advocates, we are invited by judges to make submissions following the evidence in family cases. This is where we advance arguments to persuade an outcome. What judges need are forensically sound succinct points, cross referenced to written and oral evidence. Often oral submissions ‘on the hoof’ fail to deliver. Perhaps we should question the need for prolix submissions in family cases when a simple, authoritative written offering could save time whilst providing greater and more persuasive clarity?

Court judgments. Like submissions, our tradition requires that these will be delivered at the end of a case orally in a court room with the parties present. In times gone by being present was the only option to inform court users of a decision and outcome. Today, most litigants are able to read an appropriately prepared written judgment, or alternatively sit in their solicitor’s office to have it explained to them in simple terms. Why it is appropriate or necessary to have parents sit in a court room for an hour or three whilst statute and case law is recited, and their failings as parents are promulgated?

Getting a work/life balance is increasingly problematic for many practitioners, especially in the early and middle years of their career. Were courts to assume a four day week I suspect that the life of both professionals and court users could become much simpler and more bearable; and if the Cambridge study is correct, possibly more productive.

Perhaps now is the time for the Baron Burnett of Maldon, Lord Chief Justice and Sir Keith Lindblom, Senior President of Tribunals to meet with Nick Goodwin, Chief Executive of the Courts and Tribunals Service to discuss a proposal for a four day week that could enhance the lives of all court users?

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Identity cards revisited

A post concerning the merits and risks of the national identity card, and a little of its UK history.

Veteran readers of the blog may recall my 3 April 2021 post concerning the Identity Cards Act 2006, and the Act’s demise in 2011 on the passing of s.3 Identity Documents Act 2010.

The National Identity Scheme died an ugly death-by-ritual-shredding in Whitham Essex at the instigation of former Deputy Prime Minister Nick Clegg, calling the scheme ‘a direct assault on our liberty‘. His statement now seems quite ironic considering, since February 2022, he has held the office of ‘President of Global Affairs’ for Facebook, the largest private collator of personal information in the world!

Today, Tony Blair and Lord William Hague, normally political opponents, reached a rare agreement that digital ID cards would make it easier and more secure for people to access services, and for the government to understand their needs and better target support. Their joint statement reads:

“In a world in which everything from vaccine status to aeroplane tickets and banking details are available on our personal devices, it is illogical that the same is not true of our individual public records.” They draw attention to the fact that other countries have embraced a digital revolution for data, and that the UK risks falling behind due to fears relating to the protection of privacy.

As mentioned in my 2021 post, those of us who purport to guard our personal information are only too quick to share it with poorly regulated business users such as Amazon and Facebook. We readily provide details of our date and place of birth, sex, gender, ethnicity and bank details to companies that ask in the knowledge that they will exploit it for commercial gain. To comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, we already hand over to banks, building societies, estate agents and others our passport and driving licence, meaning that the recipient has a clear profile of our identity.

A card containing biometric information that identifies the holder conclusively could be a gateway to the future, especially if linked to an app or text confirmation before sectioned sensitive data is released. In addition to passport and driving licence information, it could enable access to national insurance and medical records (most useful after an accident, stroke or heart attack), and perhaps comprise data space that would dispense with travel cards, entry permits – and even provide remote access for our cars and homes. Needless to say, a properly designed card would be useless without both the presence and authorisation of the holder.

Like you, I can think of a hundred situations where an identity card could create risks, even down to the paralysing consequence of the card’s loss. We would certainly need legislative protection as to the use or dissemination of data contained in it. Above all, we would require reassurance that state access without individual consent was entirely proscribed.

However, to say that adequate protection may be a too difficult task is akin to suggesting that the development of a multi-dimensional identity card would be too challenging a project. When Barclays Bank issued the Barclaycard in 1966, the belief was that the then simple and now ubiquitous credit card would have minority appeal. Look at it now!

Rather than getting hung up on conspiracy theories or approaching identity data cards with luddite suspicion, perhaps we should put our minds to how we would wish our data which is already in the public and commercial domain, to be managed and protected?

And as I said back in 2021, wouldn’t it be nice to be relieved of the wad of cards that currently bulk out our wallets and clutter our purses?

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Policing the Police

A post about police culture and criminality, and how to address it.

The dreadful murder in March 2021 by kidnapping, strangulation and rape of Sarah Everard by police officer Wayne Couzens and the recent convictions for rape by PC David Carrick have each sent commentators into understandable apoplexy about contemporary police culture, especially (although not exclusively) in the Metropolitan Police Service.

But are our police services institutionally corrupt? Is the concept of institutional corruption fair or helpful in relation to policing? How can we best address a clear crisis in public confidence in relation to the police?

Corruption, or at least a lack of integrity, exists all around us, evident in commerce, politics, the arts and the church, as well as the police. No organisation has escaped its calamity. It is an intrinsic human flaw arising from competition, dishonesty and avarice that is only kept in check by a combination of strong moral codes and the incentives and sanctions to back them up.

Whilst I do not criticise those who brand policing as institutionally racist or corrupt, I sense that this diagnosis is not especially constructive. We need a cure. And this is where I propose to start with this post.

Back in the 1970s, Sir Robert Mark – my Commissioner – was the first to speak of ‘institutional corruption’ within the Metropolitan Police, vowing to eliminate it from the force. I had joined the Met as a young graduate in 1974. Robert Mark’s presence was already beginning to be felt within the service, although my initial experience of policing told me that he had a huge, perhaps impossible task ahead of him.

Whilst my experience as a Metropolitan Police officer is historic, my last forty years as standing counsel to Constabularies prosecuting serious disciplinary cases has served to inform my understanding of contemporary police culture. What insight have I gained?

Let us begin with the Nolan principles, formulated by the Committee on Standards in Public Life set up in 1994 by former Prime Minister John Major under its chairman Lord Nolan. Whilst its remit was to examine standards in Parliament, the Executive and quangos, the principles have had universal application and are now deployed to guide all of those that work in the public interest.

Twenty years after Nolan, in July 2014, the College of Policing formulated its Code of Ethics for policing, comprising ten outlying codes, taking over the historic task of Rowan and Mayne’s nine principles created in 1829 (see Tony Moore’s biography here). These have statutory force under s.39A Police Act 1996.

In February 2022 the Metropolitan Police appointed Baroness Casey of Blackstock to conduct a ‘review of culture and standards‘ to rebuild confidence in the service. Her report is due to be published next month.

Concern lies not in the standards to be applied, but in their implementation. In addition to issues concerning recruitment screening, there are problems arising from inadequate in-service reviews, and a completely outdated misconduct process.

Baroness Casey is to address the first two areas – those to ensure that sufficient effective screening identifies and eliminates those whose moral compass may be in issue; and that of continuing oversight and review of the office holder’s record of behaviour.

Yet I am hearing no proposals concerning the misconduct process by which officers can be removed from office. Should you have the misfortune to consult the Police (Conduct) Regulations 2020 you are in for a miserable read. The police misconduct process is harnessed to the outdated concept that all police members are essentially ‘office holders’, and those seeking to remove them must follow a Victorian procedure. Yes, in 1829 it was a viable concept, and probably an important one given that individual police officers were to be given extensive powers based on trust and integrity. But that experiment has not survived into twenty first century policing. Now we must depend, not on the trust of the office holder, but on webcam recording of their activities and public accountability via mobile phone videos.

Perhaps the time is right for the concept of ‘office holder’ and the protection to officers it affords to be removed from policing, making way for commonly accepted ordinary rules of employment and disciplinary processes under which police members could be easily suspended, re-instated or sacked. This would go some way to remove the absurdity of the requirement for a detailed civil trial (such as the ones I have overseen) to remove a corrupt police officer. Like other employees, police could then be sacked, leaving a remedy of unlawful dismissal should they seek to contest.

The removal of the status of ‘office holder’ cannot undermine an already fragile public confidence in policing – but would remind members of the police service that they remain highly accountable, and stand to be removed the moment they transgress.

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Prerogative Powers

A post concerning the powers exercised by the UK’s prime minister – with thanks to Igor Judge

For most of his reign Charles I was at loggerheads with his parliament which he dissolved on several occasions (1625, 1626, 1629 and 1640) contending his divine right to rule. The conflict became so visceral that in January 1649 he was tried and executed as ‘a tyrant and a traitor’.

In August 2019, on irresistible petition from Prime Minister Johnson, the Queen was advised to prorogue parliament in what was later adjudged by the Supreme Court to be an unlawful exercise of the prerogative power.

In October 2022, Prime Minister Truss embarked on a Presidential-style pathway to impose ill advised fiscal reform, and even ‘advised’ King Charles III against attendance at the United Nations Climate Change Conference, COP27, effectively exercising the Monarch’s prerogative power against the King.

As Baron Igor Judge, retired Lord Chief Justice, explained on 1st November in his Selden Society and Four Inns of Court Annual Legal History Lecture, the significant powers now effectively assumed by UK’s Prime Minister of the day are in need of scrutiny.

Whether it be the appointment of Ministers of the Crown, or new members of the already unwieldy and over-stacked House of Lords (vetted but otherwise unfettered by the House of Lords Appointment Commission), the UK Prime Minister exercises considerable personal power. This even extends to proclamation to the media of government policy before Parliament has been consulted. Throughout the 21st century, the Ministerial influence of the Cabinet and Cabinet Office has been restricted by sudden political sackings and substitute appointments by the Prime Minister, resulting in enhanced powers in the hands of one political leader.

As we have seen, the ruling party can rid itself of a rogue Prime Minister, and a government may be challenged by a no-confidence vote, but save for the limited jurisdiction of the Supreme Court there are few other effective oversights or constraints on the PM’s powers.

The answer is not a written constitution. In the USA we have seen how a constitution can be manipulated to mean what the proponents contend rather than what the authors intended, and situations have arisen where a written constitution has had the contradictory effect of limiting freedoms rather than protecting them.

Perhaps the way forward is for the British public and its Parliament to shun the popular presidential-style of government by Prime Minister – and to insist on clear policy decisions forged with the agreement of the Cabinet, scrutinised by a Parliament that is responsive to the wishes, needs and will of their electorate as opposed to the imperative of a party insistent on remaining in power?

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The death of armed police

A post about police officers who have been authorised to deploy firearms in a political landscape.

I suppose I was lucky. In the 1970s, having made the decision to decline firearms training I had but two serious encounters with force multipliers. The bank bomber I arrested in central London gave up without detonating the explosives he was carrying – and a suspect carrying a handgun did not have time to pull the trigger.

This week the Supreme Court gave an important judgment concerning the use of firearms by armed police. The case involved a police officer who shot dead a suspect in a police operation. The suspect was involved in a plot to snatch two individuals from custody. Police had intelligence that the plotters would be in possession of firearms. The armed officer said that during the intervention, the suspect’s hands moved quickly up to a shoulder bag on his chest, and fearing for his life and those of his colleagues, he fired one shot. No firearm was found in the bag, but an imitation firearm was in the rear of the car used by the suspect.

It seems undisputed that the officer had an honest and genuine belief that the suspect was likely reaching for a gun, and as such, potentially posed a lethal threat, albeit that this was tragically wrong. Was his action to shoot the suspect reasonable? The Supreme Court had to decide whether a decision of the Independent Office for Police Conduct (IOPC) was correct to require the firearms officer to answer for gross misconduct – on the basis that any mistake of fact, no matter how honestly held, could only be relied upon if it was a reasonable mistake to have made.

The court found as follows:

‘Under the civil law test of self-defence, the necessity, proportionality and reasonableness of the officer’s conduct will be assessed having regard to his honest and reasonable belief as to the situation which confronted him. His conduct must be assessed on the basis of the information of which he was aware at the time…..the application of the test does not require the tribunal to look beyond what is in the mind of the officer. An officer acting on the basis of defective intelligence would not necessarily be acting unreasonably in doing so provided he had no reason to suspect that the information was unreliable…. Professional standards within police forces depend on the ability of officers to rely on properly communicated intelligence, save in circumstances, which are likely to be most exceptional, where they have reason to doubt its reliability.’

‘Finally, we express our concern at the proliferation of legislation and guidance in relation to the use of force by police officers which has resulted in unnecessary complexity and in obscuring the fundamental principles which must be applied. This is an area of the law of vital importance to the public and to the police. It is essential that the public and the police should be informed in straightforward terms of the law which applies. We hope that it will now be possible to recast legislation and guidance so as to achieve this result.’

Yet the upshot (so to speak) of the judgment is that in any case arising from a police shooting the IOPC could refer the officer to a misconduct process which would investigate ‘reasonableness’, with a consequent suspension of the office during the proceedings.

Last year Police Federation spokesman, Ken Marsh questioned the automatic suspension of police officers who had used a firearm in a fatal shooting. Following the shooting of Chris Kaba, Ken Marsh’s concern was not that the shooting was to be investigated, but that the officer’s suspension may prejudge it.

If we are to send public servants to face those who may carry guns, we must afford them protection, not just against their assailant, but the backlash of political reaction and public opinion arising from temporary removal from duty. We should remember that suspected criminals are released on bail unless there are compelling reasons otherwise. To remove officers from active duty pending investigation (where there is no immediate suggestion of malfeasance) not merely disarms them, but isolates them, placing them on the defensive – an effect that is in no one’s interests, least of all the families of casualties.

There is a tried and tested process for officer shootings that does not require suspension – but involves careful dispassionate independent investigation coupled with support to the officer and their family, with temporary redeployment in an unarmed capacity until the investigation is completed.

That, I would suggest, is what should have been followed in the Kaba case where on currently known facts, an occupant of a vehicle believed to have been associated with firearms failed to stop for police, was pursued through London streets and the driver refused to show himself or cooperate with lawful directions.

Additionally, unless during investigation it is established that police officers involved in incidents bore racial motive, it is seriously unhelpful to assume or presume one. It simply dignifies speculation over investigation. Moreover it removes the motivation for other police officers to take up firearms, believing as I did in 1975, that they are likely to substitute one firing line for another.

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The right to protest

Speakers’ Corner, Hyde Park

A post about freedom of speech – protection, balance and proportionality

This week, with outpourings of grief following the death of Queen Elizabeth II, a minority of anti-Monarchists have had to bite their tongues, adjudging that now is not an appropriate moment to vent their political and social views. However some from the fanatical fringe, or the impetuous immature, have shown out with protests and insults that have offended a distressed nation. They have been arrested and removed. They have been silenced.

The eighteen articles in Schedule 1 Part 1 of the Human Rights Act 1989 provide a barrage of rights protected by law. In particular Article 10 provides for freedom of expression. The protection is not, however, unqualified.

‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

As a lawyer I cannot but imagine that the actions of police have been lawful in the present circumstances. The response from the Monarchists alone – including the swinging of fists – justified police action to prevent a breach of the peace. On the other hand libertarian commentators such as Brendan O’Neill writing in the Spectator have challenged the concept of silencing this minority, contending that their freedom of speech is ‘the most essential liberty’.

Of course that is to mount the right of a protester way above the interests of the general public that may not share their views. Whilst some of us might agree with O’Neill conceptually, where we depart is in the manner of exercise of protest. We have issues with the shouting of an obscenity, just as we do with the blocking of a motorway by protesters.

The Police, Crime, Sentencing and Courts Act 2022 has gone some way to amend the Public Order Act 1986, but both Acts failed to achieve a social balance between the protection of free speech and the prevention of harm.

That got me looking back to 1872 and the Parks Regulation Act which enshrined the right to protest at ‘Speakers’ Corner’, Hyde Park London. It built on the long-held right of those to be executed at Tyburn Gallows to make a final speech there before their hanging. In 1866 the Reform League, being locked out of the park, removed the railings so as to gain entry and by the next year Home Secretary Spencer Walpole resigned when police and troops declined to intervene against the protesters.

Perhaps Prime Minister Truss should consider new ways to protect the freedoms of thought and expression, whilst responding to the public desire for proportionality of protest. Designating safe protected protest venues, as was done at Hyde Park, might go some way to achieve this, as would the recognition of prescribed methods of protest that balance free speech with public order?

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Archie Battersbee – a legal reflection

A post to consider the legal landscape leading to the intervention of the Supreme Court

Remembering that below, behind and above this topic was the life of a child, for today’s contribution I focus simply on the legal process that underscored Archie’s final days whilst social and emotional conflict reigned between his family, their advisers, the clinicians and the administrators of Barts Health NHS Trust.

It is rare that the issue of withdrawal of treatment from any patient finds its way into the public sphere. Family courts and the Court of Protection protect the identity of children and adults-without-capacity that face life determining medical choices. Reporting restrictions are put in place that restrict publication of information to ‘the issues’ rather than ‘identities’. This way, public justice is visible and accountable without intruding on the interests of the particular child or family.

I shall not give an opinion on whether Archie’s family were right or wrong to bring their child’s case into public focus, but in doing so, reporting restrictions that would have precluded publication of his identity were lifted, and a child in a bed was projected onto the world stage.

As mentioned in my previous post Unlocking Death the Family Court and the Court of Protection habitually face the question of whether to allow continuation or authorise cessation of treatment for patients with irrecoverable, substantial brain injury. Maintaining life (or semblance of it) may be of huge value to relatives but frequently involves mechanical, chemical and systematic interventions that intrude way beyond the patient’s interests where there is an unrealistic prospect of recovery from brain injury. Such decisions require the careful balancing of the patient’s interests, and can only be made objectively on the basis of current science and understanding. Family members cannot be entrusted alone to decide, or to take responsibility for the decision. Courts will make errors, but the error of maintaining an appearance of functioning in the face of almost inevitable necrosis is a huge risk compared with allowing nature to take its course.

Up to, and including 1 August 2022 there are seven reported hearings relating to Archie’s treatment. The Supreme Court considered and dismissed a further appeal on 2 August, and the European Court of Human Rights declined to intervene on 3 August. A further application seeking removal to a hospice was made by a fresh legal team before and refused by Mrs Justice Theis in the High Court on 4 & 5 August, and the same day the Court of Appeal refused permission for the matter to proceed further. The arguments raised by the family’s legal team on 4 August for removal to a hospice were noticeably without legal merit.

Calls for an investigation and public inquiry or other legal review by Archie’s family and pro-life supporters seem to be unfounded when we examine the rigor and detail of the sensitively phrased judgments. The legal error that occurred on 8 June was cured on 29 June 2022 and on 11 July Mr Justice Hayden delivered a definitive judgment that has been considered, reviewed and upheld at four subsequent hearings.

Whilst not resolving the difficult question of the point at which mechanically maintained life transitions to death, perhaps the reader might consider the advantages of making an Advanced Decision which has binding validity under the Mental Capacity Act 2005. Here is a link to Compassion in Dying’s template as used by the writer. If for no other reason, it will avoid responsibility for unconscionable decisions affecting your death falling on your family members. To spare them this choice, and the conflict that it may engage, might be your final important legacy and gift to your loved ones?

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Unlocking death

A post concerning the jurisdiction of the court in relation to questions of life and death.

Archie Battersbee is the twelve year old child of separated parents Hollie Dance and Paul Battersbee. Archie has been under the care of Barts Health NHS Trust since April 2022 after his mother found his body suspended from the banisters at his home with a dressing gown cord around his neck. It seems that his pulse was restarted, but oxygen was not getting to Archie’s brain, resulting in suspected catastrophic brain damage.

With medical intervention at Southend Hospital his body functioning was preserved to a degree, but after removal to and several months of care from the Royal London Hospital, clinicians concluded that Archie had suffered cessation of brain-stem functioning – ‘severe irreversible hypoxic ischaemic brain damage’.

Accordingly on 12 & 13 May 2022, the trust applied for specific issue order to perform a brain stem test to identify the presence of brain activity, a procedure that involved Archie being temporarily removed from artificial ventilation. It was opposed by Archie’s mother, and so the case came before Mrs Justice Arbuthnot in the High Court. Having weighed the evidence relating to risks to Archie and the importance of the test, the court concluded that the test was appropriate, and permitted it to proceed.

The test was attempted on 16 May 2022, but it appears that Archie did not respond to the nerve stimulation tests that preceded the main intervention. This supported the proposition that Archie’s brain functioning had stopped. There remained the question of whether a further MRI scan should be performed to see what changes (if any) had occurred to Archie’s brain since an earlier test performed on 15 April 2022.

The case came back before Mrs Justice Arbuthnot on 27 May 2022. Under cross examination, the Consultant Neuroradiologist, the Consultant Paediatric Intensivist and the Consultant Neurologist stated their opinion that it was likely or highly likely that Archie had died. On this basis the court ordered the further scans to identify any further extent of necrosis to Archie’s brain. That examination took place on 31 May 2022.

The case returned to court on 6-8 June 2022. Having heard evidence over the two days, the court concluded that, on the balance of probabilities, Archie was dead. As a matter of formality it certified death as of noon on 31 May 2022. The court did, however, go on to consider the case in the alternative – as if Archie had not died and was considered still to be living. This necessitated an hypothetical evaluation of Archie’s best interests of being kept alive artificially, or on the withdrawal of life support, being allowed to die. Given the desperate prognosis, the court concluded that it would have been in his best interests to have support withdrawn.

We move forward to the appeal of that decision, when 29 June 2022 Sir Geoffrey Vos, Master of the Rolls, Sir Andrew McFarlane, President of the Family Division and Lady Justice King sitting in the Court of Appeal (Civil Division) granted permission to appeal the decision of the High Court on limited grounds.

The appeal judges were not satisfied about the pronouncement of death in a case where bodily functioning is maintained mechanically. They therefore considered that the second question of Archie’s ‘best interests’ should have been addressed and concluded, not as a hypothetical but instead as a real-life evaluation.

In light of this error, they considered that the ‘best interests’ issue should be reconsidered afresh and remitted the case to Mr Justice Hayden, Vice President of the Court of Protection. He considered it on 11 July 2022 and concluded:

‘This court has to ask itself whether continuation of ventilation in this case is in Archie’s best interests. It is with the most profound regret, but on the most compelling of evidence, that I am driven to conclude that it is not. Accordingly, the Court cannot authorise or declare lawful the continuation of this present treatment. It is obvious from the detail of the treatment that I have set out above that it is intrusive, burdensome and intensive. If there were even a possibility that it could achieve some improvement to Archie’s condition, it might be both proportionate and purposeful. Where, as here, the treatment is futile, it compromises Archie’s dignity, deprives him of his autonomy, and becomes wholly inimical to his welfare. It serves only to protract his death, whilst being unable to prolong his life.‘

On 25 July 2022 it was back to the Court of Appeal for permission to appeal the judgment of Mr Justice Hayden, this time before a court comprising Sir Andrew McFarlane, Lady Justice King and Lord Justice Peter Jackson.

Seven factors that favoured maintaining Archie’s current treatment regime were advanced on behalf of the family. Having considered these together with Mr Justice Hayden’s judgment as a whole, the Court of Appeal concluded that Hayden J had performed the appropriate balancing exercise in assessing the key issue of Archie’s best interests. It followed that mechanical support should be withdrawn.

Today that decision was questioned by the United Nations Committee of the Convention on the Rights of People with Disabilities. It seems that the Health Secretary Steve Barclay wrote to the court asking them to consider that request, but notably did not formally intervene on behalf of the government. The court concluded that a full and proper legal process had been undertaken and exhausted, and that the decision of 25 July should stand.

This final decision ends the litigation and the issue for Archie. It is right to observe that decisions like this one relating to the withdrawal of treatment are made regularly throughout the year by the Court of Protection. Archie’s case is but one of many. The rules that govern decisions are clearly set by Parliament and the courts. They involve experienced judges carefully, painstakingly and objectively evaluating the evidence in each and every case, and making sensitive, visible and appealable decisions.

Not having been involved at any stage in this litigation perhaps allows me to come forward as a fair minded and informed observer. I have been sad to witness the approach of parts of the media that have treated this issue sensationally as ‘a news item’. Whilst some of the facts, and parts of the process have been reported accurately, an impartial exposition of the issues has not – to my knowledge – fairly addressed the integrity of the legal process. I am hoping that this post redresses that omission.

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Open letter to the President

An open letter to Sir Andrew McFarlane, the President of the Family Division, following his recent comments on divorce.

Dear Andrew,

It is a while since we chatted about this topic in York, but your Sunday morning interview with BBC Radio 4 Broadcasting House presenter Paddy O’Connell was excellent in the way it highlighted the unacceptably divisive processes involved in divorce (to listen follow the link and fast forward to 33.30 time elapsed). You are right, courts should be seen as the last resort rather than the go-to default.

Some lawyers have been saying this for years and have provided services that seek to take the sting out of acrimonious separation, enabling spouses to concentrate on problem solving rather than conflict. That said, save for a few tentative initiatives, divorce courts have continued in their medieval ways – at least until 6 April 2022 when adultery was removed as a ground and the long-awaited ‘no fault’ divorce was introduced.

Most divorces are going to be traumatic for at least one spouse, generally both, and of course for the children. The legal process should not add to that trauma. Calling into court those undergoing the experience was never justifiable (unless one regards the institution of marriage as in need of social protection). We don’t have courts to marry us – why have them to decide and declare our divorces? You were right to say that separation is a relationship problem, not a legal one.

Property and money are quite another thing, although in fact susceptible to the same solutions. I have long argued the virtues of mediation and arbitration. Thankfully, the latter has gained some traction, at least amongst those who wished to keep their financial affairs out of the public spotlight.

In my May 2016 post ‘It’s my money. Trust me!‘, I controversially suggested that rather than fighting over the divorce spoils, when two people become parents their family assets should be held automatically by them on trust for their children.

It is a wacky idea that needs some polishing, but is brilliant in concept (as left-field thinking so often is). Instead of the parents as ‘applicants and respondents’ arguing over the spoils in their own litigation, they would be treated as trustees acting on behalf of their family. It would mean dropping S.25 Matrimonial Causes Act 1973 in the bin of history, but is that any great shame? In its place we could have a truly child-centred approach that is regrettably not currently captured by S.25(1) of the Act , bringing with it a whole new category of child related considerations to be applied before descending to the individual needs of waring parents.

Some might say that this is already part of the court’s approach. I would beg to differ. Save for a handful of farming cases where parents have sacrificed their own interests to retain the farm, during my 43 years in practice, few courts have made provision for the needs of children in their post-adolescence or as young adults. By this same mechanism excess wealth tied up in the parents’ property could be released to meet the future housing needs of their children?

It isn’t just the language that courts use that should change. We need to reform the whole divorce process to prioritise and normalise the alternatives, making going to court a significantly less attractive option financially and culturally. And most certainly, we need to remove property disputes from the highly expensive adversarial system that currently prevails in which the presence of lawyers has tended to exacerbate financial disputes rather than problem-solved them.

So now, Andrew, as President of the Division, what do you suggest as the next move to bring this about?

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Outrage in the courtroom

A post about social fireworks in public law care proceedings, and how to dampen the flames

It doesn’t happen often – but last week it did. And I was ‘almost’ there.

The parties involved in care proceedings are ushered into the courtroom. The children’s mother looks agitated, clearly exacerbated by a requirement to attend court after many months of remote hearings, not helped by rigorous security checks, post-pandemic measures and a delay in calling the case on.

The judge is about to enter. With plastic cup in hand, the children’s mother turns to launch its content over the social worker just as she takes her seat. The worker, terrified, flees from the room, security is alerted, and the mother runs from the building, not to return.

There can be few more charged situations than care proceedings, not just involving the removal of children from their parents, but sometimes their permanent placement in a new family. Polemic positions taken, stress levels surge and tempers run high. The back seats of a court becomes a tinderbox from which the smallest spark may ignite a bush fire. Unlike a pub brawl, it can happen without warning. Perhaps body language may change, an attender may become silent, or there may be tension in their shoulders; but all of this goes unnoticed in the formality of a Family Courtroom.

Bringing dysfunctional families together at court with the social worker who has removed their children, or expecting parents to meet there for the first time after years of loathing, should not be the job of the family court system. Were trained facilitators present it might constitute a viable risk, but expecting people in conflict to sit and function calmly together seems a highly optimistic proposition.

And so it was when I was ‘almost’ there. ‘Almost’ – because I was the sole remote attender. By choice I was in my office facing a friendly screen, unstressed by train delays, traffic jams, parking problems or city navigation.

The experienced got me reflecting afresh on the drawbacks and benefits of remote attendance. Had this mother visited her solicitor’s office and been remotely connected to the court, this incident (and others like it) would not have happened. All of those so called ‘special measures’ deployed by courts – screens, security separation, special witness rooms – could be abandoned. Parties would be free to access justice without the stress of being together in a courtroom; victims of domestic abuse could give their evidence free of inhibition from their perpetrator; and witnesses could arrive without the worry of who lay waiting for them when they left.

I can well understand a Judge’s desire to control their courtroom from their bench. For some it is their ‘headmistresses’ room’, outside which recalcitrant parents are required to line up like schoolchildren under threat of the cane. The courtroom layout is designed to keep the judge adequately safe. But is it really necessary to require the physical attendance of each and every party or witness when the stakes are so high? Do parents give their best account when made to attend what, for them, is a hostile or unfamiliar environment?

I just wonder – knowing we can arrange effective, workable, remote hearings – whether the time is right to consider the necessity for ‘the courtroom experience’ in every public law family case? There will be exceptions: cases where to attend is therapeutic or even transformational with understanding or compromise. But regrettably, family care proceedings frequently end predictably just as they start, with incapable parents forfeiting their opportunity to raise their own children.

Historically, we attended civil and family courts because this was the way a judge could be properly informed to make a fair decision. The courtroom provided a compromise for access to justice. Yet with the viability of remote attendance, has the time arrived for choices to be given – to attend in person or to to attend via video platform?

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Captain’s Log 2022

A post concerning public life and the importance of recording

As a barrister, when representing leaders involved in public life, I have always advised my clients to keep a careful log of their decisions, the information on which they were made, and their justification for making them. I would explain that an unrecalled and unrecorded decision could give rise to their yawning silence years later in a public enquiry.

Fast forward to this week – our Prime Minister Boris Johnson, Chris Pincher MP for Tamworth, and the position of deputy chief whip. Whether the PM forgot he was told, or was told and forgot may be of massive importance to his survival; but the fact that he had no way of checking before committing to an answer was, for our nation, unacceptable.

On the other hand retired civil servant, formerly Sir Simon McDonald, appears to have kept a ‘Captain’s Log’. In his letter to the Parliamentary Commissioner for Standards he wrote:

‘In the summer of 2019, shortly after he was appointed minister of state at the Foreign Office, a group of officials complained to me about Mr Pincher’s behaviour. I discussed the matter with the relevant official at the Cabinet Office. (In substance, the allegations were similar to those made about his behaviour at the Carlton Club.) An investigation upheld the complaint; Mr Pincher apologised and promised not to repeat the inappropriate behaviour. There was no repetition at the FCO before he left seven months later.

The same BBC website report continued: “Downing Street has said Boris Johnson was not aware of any specific allegations when he appointed Mr Pincher deputy chief whip in February.” By 4 July the BBC website reflected a change in No 10’s line: “The prime minister’s official spokesman said Mr Johnson knew of ‘allegations that were either resolved or did not progress to a formal complaint,’ adding that ‘it was deemed not appropriate to stop an appointment simply because of unsubstantiated allegations’.”

The original No 10 line is not true and the modification is still not accurate. Mr Johnson was briefed in person about the initiation and outcome of the investigation. There was a “formal complaint”. Allegations were “resolved” only in the sense that the investigation was completed; Mr Pincher was not exonerated. To characterise the allegations as “unsubstantiated” is therefore wrong.’

Lord McDonald’s recollection has gone unchallenged, for no doubt he had made a careful record on which he could recall and justify his comments. His ‘Captain’s Log’ brought clarity to an otherwise opaque dispute.

Years have passed since I too was called to account for an unexpected development in one of my cases. The Presiding Judge sought information on which a decision had been made. Whilst client confidentiality precluded full explanation, the very careful, client-signed endorsement to my brief provided every detail about what happened, and why. Importantly too, it disclosed the precise information then available on which the client’s choices had been taken.

For me it was a lesson learned, one which more than justified the effort taken to keep a validated written record. Such steps are now made more easily by time-stamped digital recording. We can never know if an issue is to arise in the future, or if disaster strikes, we may be the last professional to speak with our client.

In the past, the Ship’s Captain knew that their log may disclose their success and their doom. Will the absence of a definitive log by our country’s captain constitute his final and fateful error and define his destiny?

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A decade of legal blogging

A post reflecting on ten years of legal blogging – has anything really changed?

When, this week, Dere Street Barrister’s Twitter feed enquired about ‘items of news’ to post, the question got me scurrying back to my blog to see if there was anything here that might interest anyone there. Out of nostalgia, I found myself returning to my very first post – which reminded me that I had been writing this blog for ten years.

Originally, the blog was set up as the ‘Dere Street Blog’ – an early form of Twitter, but one that permitted an unlimited number of characters, of posts – and of contributors. The late Helen Proops was the first to avail herself of the challenge, and other members of chambers followed by commenting. But the fate of the ‘Dere Street Blog’ was in the balance. There were those that felt insecure about a blog that opened a window to chambers, whilst threatening its Google ranking, and after a short period of publication we were pressed to migrate the blog under my name as a personal portal, rather than as a chambers mouthpiece.

146 posts later, however, it still survives, not as a popular mainstream legal blog but as a personal commentary on things legal with few fields untouched.

Having congratulated myself on leading the way, albeit eighteen years after Justin Hall’s very first blog in 1994 on Links.net, and five years after Lucy Reed’s legal blog, Pink Tape, I turned to examine Dere Street’s Twitter feed. I craved insight into members’ characters, their thoughts and opinions, their loves and their purpose. I was to be disappointed. I was not expecting Shakespeare, or even Austen, but I was to be dismayed by promotional bland, the self-congratulatory content of those that have little to say.

Now I have to confess that I am far from an expert on Twitter, after all I only joined the site ten years ago when opening the Dere Street Blog, but I have always regarded it as a community chat feed – where people of like – or differing minds can promote themselves, congratulate their idols and denigrate their enemies. Whilst material linked to Twitter may be of considerable interest, the bite-sized posts are mostly heckles, disasters, gossip or puppies.

Perhaps I misunderstand Twitter’s function? Maybe a Tweet is an effective marketing tool? But I felt sadness that the opportunity for bright individuals of a successful collective to communicate their thoughts and ideas was reduced to 280 characters, few of which appear to have been harnessed for change.

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Is it criminal?

A post about strikes by barristers and criminal legal aid

Some might say ‘he doesn’t do criminal work; what does he know about it? ‘. They would be correct about my practice, for now I no longer act in criminal cases. But that has not always been so. When I qualified as a barrister in 1979 I proceeded immediately into specialist criminal practice where I remained for twenty years. My remuneration was from criminal legal aid; and in those days, as now, the rates were very low. Without scholarships, grants, awards or chambers’ remuneration schemes, initial years were tough. I lived in social housing, owned one suit, and was one of two London barristers who rode a motorbike to court.

As a non-criminal practitioner I shall not be opining on whether newly qualified barristers can these days survive on current rates. I guess they can’t. The system that traps them is ready to break.

But might barristers themselves be complicit in their poverty? Is it a failure of the profession – its organisation, the proliferation of service providers, and the chambers system that lies behind the fact that young lawyers struggle?

From medieval times, litigants had to pay for their barristers unless a ‘dock brief’ was accepted. Later, the Irish judge, Sir James Mathew (1830-1908) said that ‘in England, justice is open to all – like the Ritz hotel’, highlighting the absence of financial support for litigants in an expensive field.

Funding for prisoners was first introduced by the Poor Prisoners Defence Acts of 1903 and 1930, providing some support for defendants when appearing before magistrates. Post-war, in 1949, the Legal Aid and Advice Act was passed, providing the first means-tested non-discretionary funding for criminal cases. It joined a host of other social reforms in relation to health, medical care, national assistance and pensions, housing and education. However, financial cuts in the first decade of the twenty first century reduced its reach, culminating in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Like so many of the post-2nd World War developments, the 1949 Act had been predicated on a concept of society and the welfare state much less intensive and demanding than exists currently. Whilst in the 1970s and 1980s legal aid provided a ‘gold standard’ of bespoke representation, under the model that developed during those years, the legal aid bill rose exponentially to the point where it was considered unsustainable.

The problem appears to have arisen from both growth and model.

C J Sansom‘s 16th century fictitious Lincoln’s Inn sergeant, Matthew Shardlake, like other barristers, accompanied the assize judges who would hear awaiting cases on circuit. To retain a barrister, the client’s attorney would discover which of them were to travel to the assize courts, and thus a ‘choice’ was made.

The right to choose representation worked adequately whilst legal services were undertaken locally by possibly a single solicitor or small partnership that would instruct their favoured counsel. That way, the morning’s list, whether for the prosecution or defence, would be in the hands of one barrister. As late as the 1980s I would find myself flitting from the bar to the cells to handle multiple cases, prosecuting and defending before a judge or magistrate. Clients had a limited choice of town solicitor – usually the one that was on duty the previous night or week – and would find themselves represented by the only barrister present at court.

But the availability of public funding resulted in a huge growth of legal services, both of solicitors and counsel. High street firms mushroomed and barristers’ chambers spread out into every city, meaning that there was a choice. Local strangleholds and monopolies of representation diminished and disappeared. Specialists of all kinds took their place.

The upshot is that, with reduced volume and fee-freezes over the years, individual criminal barristers can no longer make a sustainable living. However, is the answer that of the National Union of Rail, Maritime and Transport Workers – of above inflation pay increase? Or should we look again at a root-and-branch review of publicly funded service providers operating on a particular day in a particular court centre?

Having raised this question, I can hear the howls from the Criminal Bar – ‘what about choice?’ , ‘what would happen to competition?’, ‘what about jobs?’, ‘how can a few barristers cope with current workloads?’

Maybe those are the choices for the criminal bar….to revive the cartels; or simply settle for the fact that multiple barristers appearing in the same court means limited remuneration?

Perhaps the provision of legal services is like the provision of health care – no longer delivered effectively without continuing systematic review in which expectations are held in check or even downsized into a more manageable and sustainable model?

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Should Strasbourg supervise the Supreme Court?

A post about the role of the European Court of Human Rights in the UK’s post-Brexit justice system

One of the first things to be understood about the European Court of Human Rights is that it is a ‘an overseer and arbiter of rights’ rather than a conventional court that determines state or public justice. Its function is to weigh and adjudicate on arguments concerning alleged human rights breaches by ‘a state party’ to the European Convention on Human Rights – adopted first in 1950, ratified by the UK in 1951, signed into effect in 1953, and of which the UK remains a signatory within its continuing membership of the Council of Europe. The Convention took over from a 1948 treaty – the Universal Declaration of Human Rights, a post-war measure which purported to define human rights world-wide. Signing up to the Convention was our first re-definition of human rights here in the UK since the Bill of Rights 1689.

The European Court was formed in 1959, its purpose being to support and implement the Convention in relation to state violations, and by 1966 the UK granted its citizens the right of individual petition to the European court, meaning that any individual could go to Strasburg to seek a binding declaration of their human rights. In 2000 the UK Parliament passed the Human Rights Act 1998. This incorporated the Convention into domestic law, requiring UK courts to apply all of its provisions.

Whilst in 1998 it seemed entirely logical that the UK Parliament should simply incorporate the Convention rights, no one then envisaged that the UK would exit Europe, and in doing so seek to reclaim its legislative sovereignty, especially on the issue of the balance of rights and obligations. The question remains: in a non-member sovereign state that has signed up to the Convention rights, now statutorily applied by each and every national court – is there really a need or place for extraneous supervision and intervention from Europe?

In particular, as has happened this week in relation to the Kigali flight, can there be justification for a European judge reviewing peremptorily the interlocutory decision of a national court, in this case, our Supreme Court?

Much probably depends on how much we trust our national politicians to maintain a just balance of rights through national legislation; and whether we can rely on the UK Supreme Court to oversee and enforce them? On a jurisprudential basis there is something comforting about the concept of a collective of constitutional nations determining an international balance of human rights; but conversely, the Convention and its court fastens us to an infinitely changing code over which the UK Parliament no longer has influence or control?

The issue has been complicated by rogueories (my invented word) of our current politicians in the UK and worldwide. Our government’s previous attempt to prorogue Parliament and now a declared desire to re-write human rights legislation sounds alarm bells for those few that recall a pre-1948 world order. Perhaps it is the prospect of loss of universally accepted norms that throws us into philosophical consternation?

Whatever may be the outcome, we should be vigilant. If the UK government seeks to withdraw from the jurisdiction of the European Court, we must look with considerable care at the status that resides and remains in the Supreme Court. In time, it may be that this arbiter may form the last ditch between a rogue government and our individual rights and freedoms?

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A Right Royal Muddle

A post reflecting on Prince Charles’ recent step in political commentary

‘Appalled’, or ‘appalling’ – it seems the Prince has declared a view on HM’s government’s policy to process asylum applications in Rwanda, a controversial step, but one approved by parliament in the Nationality and Borders Act 2022. And the reason to justify his ‘private comment’ – that Charles is to represent the Queen at the Commonwealth heads of government meeting in Kigali.

The policy challenge to came before the High Court on Friday. Lawyers for the government argued that there was a “strong public interest in permitting these removals to proceed as scheduled”, and a “clear public interest in deterring the making of dangerous journeys and the activities of criminal smugglers”.

In an extempore judgment, Mr Justice Swift said, “I do not consider that the balance of convivence favours the grant of the generic relief.” “There is a material public interest in the Home Secretary being able to pursue her policy.” The case now proceeds further into the High Court, and no doubt, beyond.

Whilst the policy and a review of its legality are of profound public interest, this post is more concerned with the constitutional implications of the Prince’s intervention, be it purposeful or inadvertent.

The Prince is savvy enough to know that there is no such thing as a private comment or off-record observation. Representing the Queen, his utterances are inevitably to be captured, published and scrutinised. Whilst purporting to perform the role of monarch, he must understand that each and every one of his views will be examined through that prism.

For seventy years we have been little troubled by constitutional issues involving the monarch. Queen Elizabeth, well tutored and coached by Henry Marten and Winston Churchill, adhered to a strict policy of inscrutability, even at the most challenging of times. No doubt her personal views were shared in her weekly meetings with her Prime Minister, but that was within the confidence of the Palace, and convention guarantees that these conversations will never be promulgated. That Charles should allow a comment of this nature to slip his lips would indicate a change of approach to his role as future King.

In 1688 King James II was deposed in what has been called ‘the Glorious Revolution’, to be replaced by William of Orange. That was largely as a result of religious conflict, but was triggered in part by James’ Catholic prominence as monarch, and parliament’s desire to assert its authority. It led to the Bill of Rights 1689 and the Act of Settlement 1701, both of which confirmed the parliamentary sovereignty that exists today.

However examined (or justified), the Prince’s comment presents as a criticism of Her Majesty’s government policy, and perhaps more importantly, the will of parliament. It suggests that the monarchy is ready to step outside its traditional constitutional role. But for our admiration for Queen Elizabeth, and after the monstrosities of Prince Andrew’s and the Sussexes’ public utterances, the Royal estate can hardly afford another challenge.

Now which Member of Parliament will be the first to raise this issue of constitutional importance in the House of Commons? And as punishment, might they be sent to the Tower?

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Compelling attendance

Another post about virtual and hybrid hearings. Are judges right to compel attendance in person?

In February, Sir Andrew McFarlane, President of the Family Division, seemed to blow the whistle on remote and hybrid hearings (see his clarification given here). It amounted to – ‘let my provincial judges decide what is best, but here in London, you are back-to-normal and must attend!’

In October 2021, when addressing the Family Law Bar Association in Manchester, he had said,

‘We need to continue to embrace the technology and to use it, for the right hearings, to the full. There are clear detriments to attended hearings in terms of travel time and the inability to attend to other cases at other centres during the extended time needed for physical attendance. There are also unwelcome collateral consequences in terms of additional expense, carbon foot-print and other factors. Part of my message is, therefore, that remote hearings, for the right case, are hear to stay.’

He went on to add, ‘A balance has to be struck in each case, but generally that balance should come down in favour of the parties and their lawyers attending all hearings where an important decision in the case may be taken.’

In my most recent post on this blog I examined the merits and opportunities that arose from remote and hybrid hearings. Here I propose to question whether, in law, judges are right to insist on personal attendance at a hearing, whether as a party, a witness or an advocate?

Since time immemorial judges have held the power to compel attendance before them. Those less lazy and simplistic in the law than me will be able to cite the full range of the court’s powers, but put simply, the Family Procedure Rules seem to set out most of the regulations on this topic. They specify how family courts should run proceedings – their duty to manage cases including – and importantly, the attendance of witnesses. Here is my selection.

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Family Procedure Rules 2010

Court’s duty to manage cases

1.4.—(1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes—

(j)dealing with the case without the parties needing to attend at court;

(k)making use of technology; and

(l)giving directions to ensure that the case proceeds quickly and efficiently.

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Court’s discretion as to where it deals with cases

2.8.  The court may deal with a case at any place that it considers appropriate.

The court’s general powers of management

4.1.—(2) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.

(3) Except where these rules provide otherwise, the court may—

(d)require a party or a party’s legal representative to attend the court;

(e)hold a hearing and receive evidence by telephone or by using any other method of direct oral communication.

Evidence of witnesses – general rule

22.2.—(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved—

(a)at the final hearing, by their oral evidence; and

(b)at any other hearing, by their evidence in writing.

Evidence by video link or other means

22.3.  The court may allow a witness to give evidence through a video link or by other means.

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The question I ask is – isn’t video presence the new ‘attendance at court’? Why should ‘attendance’ necessarily involve being physically there in a court room? Under what authority may judges insist on physical presence, and why?

Before the pandemic we all complied with the age-old expectation that you needed to get to court on time, queue in the rain for court security checks, join the throng of attenders on a court concourse, joust with other advocates in the case, and wait to be called into the courtroom when those in an earlier case had overrun their time estimate. Indeed, prior to Covid, remote connection was simply exceptional, limited to vulnerable witnesses and the occasional expert.

With the pandemic, all of that changed. The President instructed us to stay away from court buildings, and to connect remotely. That was a big ask at the time, and many struggled with the remote process. But we got there, and developed a streamlined method of ‘attending’ – ensuring that we were fully instructed by our clients, had pre-hearing discussions to narrow the issues, and attended bright, visible and cheerful on a designated video platform. To all intents and purposes, not only were we ‘in attendance’, but more visible to all in the court room, better informed, better prepared, and never delayed by ‘leaves on the line’.

It might be said that remote attendance was a concession to necessity rather than a purposeful aspiration; but nevertheless it was treated and indeed functioned as ‘attendance’. Cases proceeded on that basis, they mostly ran smoothly, and as often as not, culminated in a timely fashion without appeal.

Our past President of the Family Division, Sir James Munby, writing for the Transparency Project on the unrelated topic of court secrecy, drew my attention to the judgments of Viscount Haldane LC, Earl Loreburn and Lord Shaw in the House of Lords case of Scott v Scott, drawing on the seminal dissenting judgment of Fletcher Moulton LJ in the Court of Appeal:

“Civil Courts exist solely to enforce the rights or redress the wrongs of those who appeal to them and for no other purpose. They have ample powers for so doing. They summon the defendant to come before them, they give both parties assistance in obtaining the necessary evidence, they hear the rival contentions, and finally they decree the appropriate relief if any. But they can do no more except that when called upon to do so they enforce the relief that they have granted. Beyond and besides this the Court acquires no power or jurisdiction over an individual by reason of his having become a litigant. He remains in all other respects as free and as independent of interference from the Court as he was before the suit was instituted or as any other member of the public is who has never been a litigant.”

Lord Loreburn said, ‘I have felt very strongly in this case the duty so admirably expressed by Fletcher Moulton L.J., that Courts of justice, who are the guardians of public liberties, ought to be doubly vigilant against encroachments by themselves.’ 

This begs an important question: is an insistence on personal presence of a party at a hearing one of those ‘encroachments’, given the true test is one of ‘attendance’ and not ‘presence’? Are we not at a similar juncture to that when written evidence was accepted in place of oral evidence; when digital signatures were recognised over quill and ink? Namely the point in time when the opportunities of modernity have overtaken necessity?

Whilst the issue of physical presence at a hearing is light years away in importance from the issue Scott v Scott addressed, the point as to the court’s power to insist on ‘an action’ remains the same.

I accept that there is a balance of convenience to be struck, and that there are – and will be those cases where physical presence in court is not only preferable, but essential. But my issue is simply with the default position: that the form of attendance is directed by judges, rather than evaluated either through case classification or, better, on individual merits and requirements.

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Homily to the Hybrid

A post about hybrid hearings, their value (and limitations?)

It seems that the judges cannot wait for the ‘return to the old normal’ – that of live hearings, with parties and witnesses being expected to attend in person.

For my part, I am at a loss to understand the reason or see the purpose of this decision. Maybe it is to do with the exercise of judicial power and control? Having the witness but feet away gives the questioner an overbearing advantage. Virtual and hybrid hearings are much more egalitarian with parties and witnesses connecting from ‘their space’ rather than being corralled into a courtroom.

Could it be due to ineptitude – judges and their court staff being let down on failing links by inadequate technology and training?

Or perhaps it is simply a consequence of judicial incapacity to adapt – in the mistaken (and discredited) belief that it is essential to see the whites and moisture of a witness’ eyes in order to make a judgment on their veracity.

Recent benefits of virtual and hybrid hearings should not be underestimated. They permitted hearings to continue despite virus restrictions; and for the first time, they enabled witnesses and other court users to connect just for the time that they are needed. Has anyone estimated the cost of huge tranches of time wasted by parties, witnesses and advocates as they travel to and from distant court centres, only to be kept waiting by judges, or vice versa?

I am unpersuaded by the need for a witness to be physically in a courtroom to guage their reliability. Why should a courtroom-intimidated witness be more accurate, reliable or honest than one who connects from their home or solicitor’s office? Does our intuition as observers start and stop with physical presence? And what place does ‘gut feeling’ based on observation have in any court judgment?

For over two years we have made such progress in managing remote hearings that to abandon the idea is wasteful of skills and experience. Properly instructed, advocates can manage all interlocutory processes online, with parties attending remotely if desired. For final hearings, the option should be to attend in person or not, knowing that equal weight will be given to evidence that is live or remote.

Might an answer lay in funding, and some forward planning by the Court Service? Had it been provided with quality, twenty first century technology in properly adapted court rooms, giant flat screens, voice activated switching coupled with a robust video platform, things might have been different. Perhaps then we would have been embracing the hybrid hearing as our future, rather than seeing them simply as a sticking plaster for social distancing?

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Remote hearings: case study learning

Thanks to https://www.hopkins-solicitors.co.uk/

A post about how best to manage complex remote hearings – the successes and the challenges

A multi-party, remote-hybrid, public law family case involving many advocates and associated professionals presented a huge logistic challenge recently. Did it provide useful learning points? The advocates involved were invited to collate their respective experience so that it could be shared to form the basis for good practice in the future. Some chose to participate, and this post reviews their feedback.

This hearing involved four QCs and their juniors acting for the principal parties, and two experienced ‘junior barristers’ for the children’s guardian and an older child. There were multiple interpreters (about twelve in total) for non-English languages, cognitive functioning deficit and profound deafness. The platform used for remote attenders was the court’s preferred video platform, CVP. All of the advocates connected remotely, most interpreters were online, although one set of interpreters was present in court with one of the parties who gave evidence at court. All other witnesses gave their evidence online.

Significant complications arose from the need to facilitate relay interpretation involving three separate events with four facilitators. Each of the events – two spoken languages, plus British Sign Language (BSL) as relay interpreting to deaf access signers as intermediaries, were sequential. The result involved a fairly lengthy process of questioning, in which questions needed to be reduced in simple meaning, into short sentences. This presented a significant challenge for the advocates who had some, but not substantial experience of dealing with complex communication difficulties.

One court clerk provided continuity for the eleven hearing days.

CVP platform and rooms – benefits and limitations

With each hearing day new problems arose, such as dropped or inadequate connections, court layout and sight lines for interpreters, and the overall pressure on the platform resulting from the number of remote connectors. When not actively questioning, answering or interpreting, remote attenders assisted by turning off their cameras and muting microphones to avoid platform, audible or visual overload.

Overall, the platform held adequately, and with skills from the dedicated hearing clerk, camera angles, magnification and screen window management produced adequate access. Initially, three rooms were deployed – the main court room, a separate room for a principal party who required language and signing support, and a further room for signers. In arranging the platform the art was to ensure that those who needed sight or audible connection to access it, without creating unnecessary traffic for those who did not. CVP clearly remains a ‘compromise platform’ lacking some of the features of more sophisticated providers. It seems strange, after such a protracted period of remote working, that the platform remains essentially in original form. Perhaps this should be reviewed if it is not already under consideration?

Shortcomings of conventional courts for remote connection – with technical requirements and solutions

Whether or not pandemic considerations require future remote working, it seems that remote connection has provided some significant gains. This is most notable in relation to expert and professional witnesses, from whom opinion evidence is tested forensically against known peer consensus. Even witnesses of fact can benefit from remote access, especially those residing at distance from the court. For advocates, the benefits can be even greater, allowing one lawyer to cover sequential hearings in different court centres.

It is therefore surprising that there has not yet been a ‘root and branch’ reassessment of our medieval court room layout to provide, amongst other features, 360 degree video coverage, multi-directional microphones, headset microphones, sound activated switching, linked venues and dedicated desktop monitors with split screen capacity.

All of this technology is currently available, and in use in other professional settings. Perhaps it should be imported into courts as standard?

Best management of interpreters

I have previously proposed the use of witness evidence booths for remote hearings. These could be particularly useful for language interpretation in courts, enabling remote, simultaneous translation to a witness headset, obviating the need for the physical or audible presence of language interpreters within the court room. A reliable separation of this purely technical function should be considered and assessed as a matter of priority.

Where multiple interpretation is required as here, involving BSL, other non-BSL signing, lip reading and gestures, a dedicated ‘communication manager’ may prove an invaluable asset, not merely to ensure seamless interpretation from the interpreter bank, but managing change-overs between interpreters who have reached saturation point, and liaising with the court clerk to address the practical issues concerning interpretation that arise in the course of a hearing.

Finally on this topic, our choice to have all interpreters ‘affirm’ simultaneously at the outset of proceedings saved the laborious sequential taking of an affirmation or oath. This may provide another role for the communication manager, articulating, signing and gesturing the affirmation to the interpreter group.

Questioning skills – what hearing professionals need to address in deafness cases

As indicated earlier, our case was not blessed with communication excellence. The principal advocates seemed unable to escape from a formula where each question was preceded by a comment or commentary – a proposition followed by the interrogatory ‘isn’t it’. In the ordinary course of events this technique is dull but benign; but to those with cognitive or hearing deficit, the habit produces unnecessary complexity. Moreover, with sequential interpretation, the meaning of the question was frequently lost in a lengthy process of interpretation.

Most intelligible questions can be prefaced with an interrogative adverb or ‘question-word’: what, where, when, which, who, how, why: these trigger words invariably assist signers. Even as the hearing proceeded it seemed that some advocates failed to grasp that signing interpretation is not ‘translation’ of spoken words – for signing structure does not follow the cadences of speech. Thus the iteration of a phrase, stopping before a verb or the object of the sentence, placed enormous pressures on both interpreter and signer. Likewise, overuse of the subordinating conjunction created a complexity that should be avoided.

Signing interpreters are often overloaded by hypothetical questions, conceptual propositions and complex phrase structuring, especially as a profoundly deaf recipient may have some consequential cognitive deficit. In questioning, there is always a simpler alternative, and ‘simplicity’ should be standard in cases involving those with perceptual challenge. Questions should start with a question word, contain a subject and a predicate, and finish with a stop.

All of this calls for advocates to re-evaluate their questioning technique in such cases. A Queen’s Counsel, in questioning witnesses in a rape case involving a deaf defendant, prepared each of his questions specially for the signer, starting with the object of the sentence, then to the interrogative adverb, then to the subjective personal pronoun, followed by the verb. The jury followed its simplicity, and the interpreters loved him! His client was acquitted.

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Advice for applicants: position – Commissioner of Police of the Metropolis

A post following the sudden departure of Dame Cressida Dick, to advise her successor/s

I commenced my Metropolitan Police service as a young constable in March 1974 and ended as a police sergeant in September 1978 when I read for the Bar. It was a short period of service, but spanned the tenure of two commissioners – 19th Sir Robert Mark and 20th Sir David McNee, only one of whom I met.

In those days the Metropolitan Police Commissioner was distant both from the public, and members of the police service. I encountered Robert Mark on only a couple of occasions when commended for arrests. Contrast today, when the office of Commissioner is held under micro-scrutiny by serving officers, politicians, pressure groups and the public at large.

But, to the point of this post, what now that the 28th Commissioner, Dame Cressida Dick has been forced from office? How do we replace the first openly female LBGT holder of the office, one that has the reputation of being creative, transformational and popular in policing circles?

Albeit well remunerated, the job of Commissioner is a poison chalice. One need only glance over previous appointments to see that each tenure is but one self-generated crisis away from extinction.

The 27th Commissioner, Sir Bernard Hogan-Howe, after losing the confidence of his internal staff, was heavily criticised for contradicting PM David Cameron by saying that carrying an ISIS flag by a father and daughter in Parliament Square was ‘not necessarily the worst thing in the world’ and should not lead to an automatic arrest.

The 26th Commissioner, Paul Stephenson was also the subject of criticism just before the press phone-hacking scandal, after it emerged that he had received free hospitality at a health spa run by a former editor of the News of the World.

My fellow Hendon Police College friend, 25th Commissioner, Ian Blair faced multiple criticisms that led to his resignation in 2008, finally saying after Mayor Boris Johnson had withdrawn his support, “without the Mayor’s backing I do not think I can continue”.

Whilst the 24th Commissioner, John Stevens managed to exit unscathed, the 23rd Commissioner Paul Condon faced ‘institutional racism’ findings in the Macpherson report following the Stephen Lawrence killing.

It seems that the demands of policing the metropolis in recent times have mostly exceeded the capabilities of a single commissioner. However, if we search back to the formation of the Metropolitan Police in 1829 we get a clue for an answer to the problem.

Many think wrongly that policing in London was set up by the 19th Century Home Secretary, Sir Robert Peel. But ask any constable fresh from training school and they will tell you that Sir Robert actually appointed two Commissioners jointly to form the first force, ex army officer Charles Rowan and barrister Richard Maine. It was not until 1855 that a sole Commissioner took charge.

The role of a single Commissioner must be the loneliest job in the country. Prime Ministers have their cabinet, Monarchs their Counsellors of State; but the Metropolitan Police Commissioner is totally isolated and unprotected from the savage political dogs of Home Secretary and London Mayor.

The idea of two Commissioners was an inspired choice in 1829, and may now hold the key to future police regulation. Unlike deputies, who tend to be handbag carriers for the main office holder; or the muddle of Deputy Assistant Commissioners that form a viper’s nest of competing interests hardly committed to the support of their principal – joint officer holders work together, collaborating and innovating following careful discussion and agreement.

My advice to Cressida’s successor is – contact your best policing mate, send in a joint application and split the £280,000 salary between you. The job of Commissioner, one of strategic command, is totally suited to joint tenure, and both of you together will hopefully sail clear of unforced errors, political criticism and public censure.

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Sir Tony Blair, his title and his entitlement.

A post concerning Tony Blair’s appointment to Knight Companion of the Most Noble Order of the Garter

As a New Year honour of 2022, none appear to be more controversial than that bestowed on former Prime Minister Tony Blair. The Change.org petition has exceeded 1m signatories objecting to his inclusion in the honourable inner circle of 24 , their principal objection being Blair’s support of the invasion of Iraq, although other reasons have been cited, such as his Northern Irish amnesties.

The Knights Companion Order was founded by Edward III in 1348, it is suggested as a way to reinvent the Artherian round-table legend. Legend claims that whilst Edward was dancing one evening, his daughter-in-law Joan of Kent dropped a blue garter which he picked up and attached to his own leg, saying “Honi soit qui mal y pense. Tel qui s’en rit aujourd’hui s’honorera de la porter”, Norman French for, ‘Shame on anyone who thinks evil of it. Whoever is laughing at this today will later be proud to wear it’.

And so the garter stuck – a gift, supposedly of the Monarch, bestowed habitually on those proud, vital servants that have advised the Crown, including now former Prime Ministers.

In my various Mothering Sunday visits to the late Queen Mother at the Royal Lodge, I have experienced the array of colours / banners belonging to the Order of Knights Companion in the Royal Chapel, Windsor. It presents a formidable record of those closest to the Monarch, some of the most influential people of their era. The question is, ‘should Tony be admitted to this number?’

I must confess, if I were invited, I would unhesitatingly accept. In examining social pyramids, none can be higher than the highest honour bestowed by the Crown. It is the apotheosis of aspiration. It is the outward mark of a worthwhile life of service. But as Tony joins the Noble Order of Companions, it seems that Andrew Duke of York may depart the Royal Order of Knights.

Rather than focusing on the controversial decisions of 2003, shouldn’t we be examining the current issues of 2022 – less about the elevation of Blair and more about the removal of a Royal Knight indicted of serious crime?

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Font wars

A post about fonts, formatting and the future of digital thinking

Last week Legal Cheek reported Joshua Rozenberg’s tweet concerning a change of fonts in UK Supreme Court judgments, throwing the legal Twitterati into typographical turmoil. It seems that Calibri has replaced Times New Roman, allegedly to improve ‘readability’; and many lawyers are not happy.

This lawyer is quite indifferent. So long as they don’t use Bernard MT Condensed, Haettenschweiler or Showcard Gothic I really don’t mind. But the debate got me thinking about the fundamental function of fonts – their purpose and psychology, and why it might matter?

Isn’t readability simply a question of fashion…we follow more easily that with which we are familiar? As the default font for Microsoft Office since 2007, we have become enured to Calibri. This may be why the Supreme Court has taken the decision to change to it from Times New Roman. But what of the ‘signal’ given by a font? Don’t Supreme Court judgments need to be typed- as written- with dignity and authority? Is Calibri right for the UK’s most prestigious judgments? Is anything better than ‘Blackadder ITC?

Regular readers of this blog will know that, for some time, I have been preoccupied with the digital world, questioning why lawyers have struggled to make a smooth move from paper to PDF. If we are really focused on readability, shouldn’t we address other formatting issues before getting hung up on fonts?

Despite having transitioned to largely paper-free practices, most lawyers continue to think in terms of documents, pages and print view. Gone are the days when your documents arrived by post, to be filed in cabinets. Your contributions now appear on a digital cloud, or an online log, so there is no longer a requirement to reference documents other than by a digital case number: headings are unnecessary; lists of parties and other standard recitals are unneeded. Shouldn’t we be scrapping all those things that were essential on a page, but extraneous to a digital post?

Next time you prepare a document, experiment by proof-reading for its unrequired headings, references, phrases and words, that simply are for formatting rather than form, adding to scrolling rather than sense.

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Answer my call

Judge Bruce Schroeder in the Kyle Rittenhouse trial Friday, Nov. 12, 2021. (Mark Hertzberg /Pool Photo via AP)

A post about the use of mobile technology in the courtroom, and whether the time has come to review this?

Lucy Reed, in her excellent, award-winning blog ‘Pink Tape‘, addresses the vexed question concerning the use of mobile phones in court, commenting, ‘within a minute of the judge having explained phones weren’t allowed in court…we all had to consult those phones in order to check our diaries to set the next hearing date.’ It is a fascinating read, one that I would recommend.

Her post got me thinking how courts remain ‘behind the game’ when it comes to technological innovation. As Pink Tape points out, lawyers are habitually connecting through mobile communications anyway, whether for advocates’ meetings, at remote interim hearings, or when cross-examining experts over a video link. It is not just via emails between the lawyers whilst in court – advocates frequently link by WhatsApp messaging to ensure seamless communication during hearings. So what is the particular problem that marginalises the use of mobile communication in court?

I suspect the issue is threefold. First is one of covert recording.

When recording technology emerged, courts stayed behind the times. Perhaps this was understandable, for whilst we had the technology to record, we were a long way off having the ability to transcribe. But that position changed: the stenographers were fired and audio recording took their place. Now, every hearing is digitally recorded using the court controlled system.

The fact that we have an authoritative recording – call it the master copy – should mean that we could be less precious about authorising the use of other audio recordings. A good example relates to the medieval practice of handwritten notes of evidence, frequently shown to be inadequate. And why the block on recordings of meetings and interim hearings? Might now be the right time for judges to exercise discretion as to the use of recording, so long as rules relating to contempt on publication are clear?

A second reason for banning mobile phones relates to the disclosure of witness evidence.

Recently, I witnessed the issue of a sworn witness in court communicating with others yet to give evidence. The witness had been warned not to share any information concerning their testimony, but breached the warning when they phoned other family members.

In truth, such problems will arise whether or not technology is involved. Maybe the answer here lies not in across-the-board prohibition on phones, but judges making very clear contempt warnings in situations in which sharing proceedings will be visited with serious sanction?

A third issue is interruption. Is there anything more disconcerting in the course of a witness’ evidence than the sound of an iPhone default ringtone or Nokia tune?

Our recent experience with remote hearings has made us inured to interruptions of many kinds – the doorbell ringing, a child wandering in, or a dog barking from another room. None of it is fatal to the evidence being given or the dignity of the proceedings. We manage it as best we can, and live with it as an unintended consequence of remote hearings.

With the right sort of warnings given at the right time, interruptions may be managed if not eliminated. How much better to receive an important update on the evidence – than to ban the tool that receives it?

Maybe we should review the whole question of balance of privacy, confidentiality, publication and sharing of information that arises in and from a court hearing? Perhaps this is another job for Lucy Reed’s transparency project? Sorry to give you yet another job, Lucy!

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Lawyers living with a virus

Thanks to The New Yorker for the image

A post about where we go from here, given an uncertain prognosis for Coronavirus, but the certainty that another virus will, in time, present.

In the early stages of the pandemic, on 2 April 2020 I posted a piece titled ‘Return to Normal‘, where I questioned the idea of returning to anything approaching normal; followed on 9 June 2020 by ‘Prepare now for the next Pandemic’, in which I considered the new pathogens that might afflict us.

Now we face Omicron, a rapidly-increasing variant of Coronavirus, which Professor Paul Hunter contends could become the dominant strain in the next few weeks. Dame Sarah Gilbert speaks of Omicron as almost certainly not being the last Covid variant we will encounter, and certainly not the most dangerous virus genus that will afflict humanity.

The debate on how to handle pandemics generally is best left to the epidemiologists, virologists and economists. Here I propose to address our role as lawyers – and what next steps we should consider to make our legal systems robust and virus-proof for the future.

Face-to-face hearings

In years gone by, before we had the technology and skills for remote hearings, physical presence at a hearing was not merely a ‘gold standard’, but the only realistic option for a fair trial. However, in the Family Courts we have developed the skills and experience required for detailed examination and cross-examination of witnesses remotely and, with a degree of judicial reluctance, ‘unattended’ hearings have been adopted.

Whether Omicron poses a future challenge to attended hearings or not, shouldn’t we maintain our current skills and the capacity to hold hearings remotely should the need arise? Perhaps now is an appropriate moment to designate certain species of final hearings in any event as suitable for default video attendance?

Chambers administration

When I arrived on the North Eastern Circuit in 1987, our ‘northern’ offices were precisely that – two first-floor offices above a hairdressers’ shop in Blake Street York. Then, we were reliant on paper bundles – the digital bundle was over two and a half decades in the future, and a barrister returning to chambers from court would load up his car boot (save for pupil, Gillian Matthews, members were male), and drop them off to those who lived in their district. We relied on our home library, and went into chambers only if we had we no option. Similarly, our clerk was expected to be out-and-about, meeting solicitors for lunch, collecting fees, visiting other clerks, and managing the lists at court – rather than sitting at a desk.

Later the dependence on technology hard-wired our clerking teams to a building. Nothing could be achieved without a telephone line and an elaborate array of screens.

Fast-forward to 2021/2 and barristers can work and be clerked from a smart-phone if needed. Rather than seeing remote working for clerks and administrative staff as an aberration, shouldn’t we design our administration to accommodate this option?

The digital platform

Since my 28 October 2018 post ‘The Almost Digital Barrister‘ (and again here) I have sought to promote digital case management in the Family Court. It seems as if someone in the MOJ must have been reading my posts, for a digital platform has now been developed and launched. But as ever, although we have depolyed the software, we haven’t implemented a digital mindset. Digital case management platforms provide opportunities for case management without the need for routine interlocatory hearings. It should be possible for this software to message and flag new case-activity, defaults and developments, so that a hearing would be required only if there was objection to a judicial requirement or decision.

I propose that Family judges be remotely supported by a dedicated team of case management clerks whose job it would be to routinely inspect the case platforms and alert their judges to developments and omissions. Family cases could then be managed in real-time, rather than at a point down the road when case requirements have changed or mistakes have gone unnoticed.

Were this course to be adopted, case management could be streamlined in every family case, delays avoided and some interim hearings jettisoned, giving more court time for those hearings at which contentious decisions needed to be considered.

Whilst an advert may appear at the foot, this blog is neither monetarised, nor endorsing any product

Post pandemic barrister kit

Thanks to IWFM for the photo

A post about the kit needed for a versatile, portable legal practice

Time on ‘ZOOM’, ‘TEAMS’ and the Court Service’s ‘CVP’ video platform has suggested that some lawyers may welcome a little advice to improve and future-proof their working arrangements, especially as remote working seems to be here to stay.

The purpose of this post is not only to assist equip your personal video suite, but to enable you to work online anywhere – from home, from a camper in Kirkwall, or even a beach in Bermuda. What we can achieve from the spare bedroom at home we may replicate wherever we happen to be. Moreover, a couple of remote hearings will more than fund the equipment that is proposed in this post.

1. The chair

Whilst in court we stand to cross examine witnesses, raise issues or make submissions – but online we remain tied to our seats within the camera field. This often means several hours at a stretch in an uncomfortable chair.

Comfort is essential, but so is versatility. We may have need to relocate our video suite for necessity or convenience, and a huge swivel-rocker is hardly portable. Ideally we require a lightweight versatile swivel chair that is not visually prominent on camera. It should be height-adjustable so it can be used with a variety of digital cameras. Avoid a chair with arms or high backs – they are unnecessary, intrusive and may restrict movement. And check that it doesn’t squeak.

2. The backdrop

Whilst TEAMS and ZOOM offer a blurred background option, so often I find myself treated to the view of lawyer’s or judge’s spare room, hidden away at the top of a house with a picture, plant or light plug as a backdrop. Folding screens in a variety of patterns are easy to erect and to move, reasonably priced and allow you to convert any quiet space into a professional video suite. For those intending to use remote locations for video connection, try a portable framed cloth screen. On camera it may work just as well as any professional backdrop.

3. WiFi and MiFi

Even for professional broadcasters, the weak link is often a lack of available broadband width. Ideally look to fibre connection for your solution, but fast enough speeds can also be achieved with conventional wired connections. Ensure that family members know when you are online and place an embargo on internet use whilst you are conferencing. For those that plan to work away from home broadand, source a 4G travel WiFi (MiFi) that will enable roaming on a variety of networks; or alternatively tether to your phone to use your mobile data, but first check your data limit before the hearing, and buy more if required.

4. Video screens

For remote conferencing a single screen is wholly inadequate. As lawyers we need to access multiple documents and make notes whilst keeping an eye on proceedings. Two screens – a laptop for video connect and a small Ipad as a document display are sufficient, but consider whether a third dedicated bluetooth keyboard and separate screen may make your day easier, especially when noting judgments. Whilst it is possible to deploy a split screen, question whether this will offer adequate visual display for the detail you require? Additionally, by keeping your mobile phone to hand on silent you may WhatsApp your client and/or other advocates during the hearing without losing visual contact to the hearing.

5. Audio

How often whilst video conferencing have you heard the demand to ‘mute your microphone’? The problem is that our computer speakers can feedback on video platforms. In any event, for a hearing, the idea of broadcasting proceedings on our computer speakers is fraught with confidentiality issues. Noise cancelling headphones allow you to access sound with minimal amplification, protecting both confidentiality and your personal hearing. If you sense that headphones are too intrusive, source a neat pair of noise cancelling bluetooth earbuds, adding extra portability to your remote hearings.

The audio of many built in microphones is poor, and I recommend the use of a dedicated USB condenser microphone. Not expensive and operating plug-and-play, the microphone will improve your voice sound quality massively, especially for recipients using good headphones or speakers.

6. Video

Whilst I have encountered some superb video quality from wealthy lawyers that have invested in top quality cameras, for legal hearings I am not persuaded that we need anything more than the video afforded by most laptops or tablets. Issues with freezing are habitually due to broadband width rather than camera quality. My recommendation is to stick with your laptop/tablet camera and save your cash.

7. Lighting

An LED ring light may be all you need to use your laptop/tablet anywhere – in any lighting situation. USB powered, with adjustable brightness in a variety of shade modes, these are cheap as chips and highly versatile, especially in winter as daylight fades. Bear in mind that you will need a USB port additional to that used for your USB microphone. But that may be where the next item comes in handy.

8. Battery pack

Whether using a laptop in court, or in some other remote location, a portable battery pack is an essential piece of kit to keep you live throughout the day. Freed from trailing wires, I have used a Zendure pack for several years, allowing me to run two devices from USB ports on the pack without the need for mains power. For those that travel, its value is enhanced, and you may wish to consider instead a router/NAS/power bank such as the Hootoo Tripmate Titan. Combine this with a 5G mifi and you can video conference from any location, anywhere, without concern of losing connectivity. Whilst investigating mobile power sources, don’t forget to buy a couple of long USB leads to provide working flexibility.

9. Soundscape

You have sorted your equipment, but have you addressed the question of ambient sound quality in your video suite? When moving to a new room or location it is wise to test the sound quality using recording software such as WavePad. Record a piece of prose, then listen back. This will advise you as to echo or reverberation that we often fail to note. Consider positioning your backdrop screen or using curtains or drapes to deaden unwanted frequencies.

10. Water and a plastic cup

Stupid as it sounds, this is often the last thing we think of before starting a remote hearing. Later, having been sitting for hours in your attic, your voice starts to creak. A tickle rises in your throat. You stare around in vain. The cocktail cabinet happens to be within reach, but the judge is still online.

Just don’t forget to have your innocent plastic cup to hand. Enjoy your remote hearing.

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Technology for lawyers

A post about doing the clever stuff, and leaving repetitive tasks to artificial intelligence

During the postpartum days of video hearings, the Court Service employed young tech-trained associates to sever our umbilical cord to court buildings. In a recent case a technology assistant seamlessly managed a four-way hearing involving two rival video platforms, multiple telephone connections with live witness management. What was a stroll-in-the-park for a twenty year old shouldn’t be all that difficult for the rest of us.

After every public law interim hearing in the family court, the lawyer for the local authority is expected to prepare a court order. In each one we find the case number, the name of the court, the parties in the case and those representing them, contact details of the advocates and those instructing them, administrative detail for remote hearings, the positions of the parties, points that have been agreed, the judge’s directions for future hearings, and multiple standard paragraphs to finish.

Whilst we are provided with a template of sorts, it is totally clunky. As Lucy Reed’s Pink Tape puts it, ‘The templates do not save us time. They giveth with one hand and they taketh with the other’ – ‘166 pairs of square brackets (332 bracket ends, separated in each case by a word)’ – that require removal each time the template is deployed.

I estimate that I spend at least an hour drafting, circulating, perfecting and agreeing most court orders before they are sent to be checked (and maybe altered) by the judge. In terms of time spent against revenue generated, this exercise is utterly wasteful. With an intelligent use artificial intelligence, preparation of machine readable orders could be cut to ten minutes.

It’s not just the orders. Professional and expert reports habitually contain repetitive headings, copied and repeated information and opinion from both within the document and from others filed. Without this repetition, a bundle of 779 pages could be halved.

In his Spectator podcast, Mike Lynch, the funder of Luminance, describes his legal software initiatives to liberate lawyers from what are essentially administrative tasks, that they may focus on adding value from their own special skills. Whilst the benefit of this technology is directed at commercial lawyers, there is no reason why it should not be equally available across the legal field.

The HMCTS family case management portal appears to have gone a tiny fraction of the way to address this. Their idea was to generate case documents from templates and make them available online. It deals with online case management but fails to deploy software to manage the information that is uploaded. It represents analogue thinking in a digital age.

Net savings that would result from insightful use of technology would more than pay for themselves in two years. We just need the right people with the right ideas, and establishment will to implement them. We need fewer civil servants and more strategic technologists. Currently, their presence seems lacking in the ranks of the Ministry of Justice and the Court Service.

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Digital courts revisited

A post about digital support for courts

My first foray into the issue of court digitisation (should there really be such a word?) titled ‘Virtual Courts’ was published nine years ago on 7 June 2012. In 2018, little knowing that a pandemic was about to change the world, I again took on the topic with ‘The Almost Digital Barrister‘ and ‘Online Digital Case Management Templates‘. But with the advent of Covid-19 the subject of remote hearings went viral, and with it, a renewed interest in ‘the virtual hearing’.

I am one of the barristers yet to return to face-to-face hearings, continuing my legal practice entirely on line. I adjusted my working environment and wrote about preparing not just for current conditions, but for the next pandemic. The Court Service has been slowly catching up with my suggestions, although some of my more radical ideas have been ignored due to an unwillingness to recognise the new normal.

Today, I want to examine what currently works, and what doesn’t when it comes to courts online. Who knows, maybe some senior judge may again read my post and feel motivated to adopt change?

Digital platforms

At the outset of the pandemic, the Court Video Platform (CVP) was rushed prematurely straight from the horsebox to the race track. CVP was work in progress, and manifest so many flaws that it stumbled at the first hurdle. Now, rather than racing at the rails, it plods way back in the field. Moreover, nobody seems to know what happened to its jockey – the Ministry of Justice -and at times CVP really looks as if it should be retired.

ZOOM, the pre-eminent favourite platform (like Astra Zeneka was to the vaccines) lost ground due to a security scare. Were the Americans listening in to our family litigation? We all knew not, but the Ministry of Justice was too risk-averse to take the chance. A better fate awaited the less user-friendly Microsoft Teams, galloping the final furlong purposefully. But as we have found with Boris’ ‘freedom day’, finishing posts are constantly moved, so there is still room for an outsider to win this cup.

It would be inappropriate to leave this topic without mentioning ‘backgrounds’. The emergency use of the spare room, or even a guest bedroom, may have been understandable at the outset of the pandemic, but now we need to present a more professional backdrop for our remote hearings. I fail to see why judges are not automatically provided with a Ministry of Justice virtual background when remotely connecting to a hearing, perhaps featuring the scales of Justice?

The hybrid hearing

When you have insufficient faith in an idea, the temptation is to compromise on it – and that is precisely what happened with the hybrid hearing – a bit of ‘remote’ and a bit of ‘face-to-face’. That said, hybrid hearings appear to work well, reducing footfall at courts, and the need for elaborate social distancing. Some lawyers (like me) love them. They allow certain witnesses and advocates to stay out of the way, leaving the stage free for for the leading players.

What we really need to fix

I have mentioned microphones before, but as yet nothing has been done to ensure that everyone can hear the proceedings consistently and clearly. Throat, or clip microphones are an obvious alternative to the ineffective stalk mics with which we currently struggle. Easy to charge, and simple to disinfect with far-UVC, a clip mic would resolve the inaudibility of witnesses, advocates, and on occasion, judges.

I have never understood why we have failed to utilise existing voice-to-text software in courts. Presently, we have the absurd situation in which half a dozen advocates and a judge are all attempting simultaneous note taking, rather than concentrating on the witness and evidence. Coupled with the fact that, when cross examining a witness online or in person, it is almost impossible to note anything accurately. Simultaneous transcription, with the addition of time-stamps to mark key points, would revolutionise the virtual hearing.

Finally, I wanted to raise the idea of employing legal assistants to support and assist Designated Family Judges. Virtual hearings bring both potential benefits and challenges, and the art is to optimise the former whilst reducing the latter. Judges tend not to be adept with technology, and a little bespoke assistance would go a long way to ensure both a smooth hearing, and the subsequent delivery of a timely judgment. The Supreme Court has demonstrated how it can be done – using judicial assistants to extract and record the facts of a case, to add the law, and pose the essential questions to be resolved. Judges should be freed to judge, to decide cases, and not to be burdened by administrative tasks best undertaken by a cost effective clerking service.

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Leaving the cave with LEX

A post about digital benefits, and how best to to future-proof your practice

Today’s post is primarily about ‘LEX’, the ubiquitous digital case management system used in barristers’ chambers since 2007 . If you are not a barrister, or a barrister whose chambers do not have the system, do stay. This post may have wider application and interest.

Gone are the days when the chambers’ diary was just a diary – containing handwritten lists of cases and the initials of the barrister instructed – which each night would be locked in a cupboard by the senior clerk.

Barristers still tend to view LEX as mainly a diary. Yet it offers so much more, and this post aims to review some of its less familiar features. As well as looking at the reports of ‘aged debt’ and ‘unassessed fees’, we will take a look at the four new widgets that have just been added to our dashboard – ‘financial summaries’, ‘payments’, and charts listing ‘fees generated’ and ‘work/payment splits’.

But why is this important when we pay a team of fee clerks to do this work for us?

I suspect barristers over the ages have asked the same question. On my first Crown Court case, my senior clerk accompanied me to court and helped me robe. Years afterwards, a junior clerk carried my papers and books. Those were the days when barristers never needed to check court lists, type a letter or open mail; and we only spoke to solicitors when vitally necessary or over dinner.

These days many of us now practice in complex organisations where everything is digital, and can be accessed online in seconds. All of the documents we need can be viewed digitally, each case summary or attendance note uploaded. Whilst working remotely, we may read every piece of legislation and share each precedent on line. We even check the court lists ourselves to ensure that our judge is not kept waiting.

Digital access is great so long as we follow straight lines. Easily viewed information is available to you at a couple of mouse strokes. Yet for your fees clerk to generate and send your payment summaries, the process is far from simple. Individual PDF outlines must be generated, downloaded, attached to emails, and sent out to every member of chambers each week. To quote one fees clerk, this involves ‘a massive amount of time’. Imagine such a task repeated for unassessed fees, aged debt and VAT summaries? And whilst your fees clerks are doing this, they are not billing or collecting your fees.

Let us return to LEX. Under the ‘Reporting’ tab, we have been able to generate our own ‘aged debt’, ‘unassessed fees’ and ‘payments’ summaries. Simply open the relevant tab, insert the start and end dates when required, click ‘generate’, and select your personalised report when the ‘select a report’ tab opens. Note that you may export each report as an Excel spreadsheet by clicking the x icon top right.

New on your ‘Dashboard’ are the ‘financial summary’ and ‘payments’ widgets. Also recently added are two exciting fee charts – for ‘fees generated’ and ‘work payment splits’. To access them simply go to your classic dashboard, click the green + icon top right, and select your choice.

The financial summary widget will show the work you have done, work billed, receipt totals and outstanding debt for two periods – the current month and the previous six months. Click on the ‘edit icon’ to open the options and change the settings should you wish. In an instant, this widget displays a complete overview of your practice.

The payments widget lists your receipts case by case, allowing you to view and access transactions with the click of your mouse.

Finally, the charts. For the ‘fees generated’ chart, click the ‘edit icon’ and view your options, or simply click the options box if available. Here, a host of possibilities emerge that will give you a practice overview, showing which of your professional clients provide the bulk of your practice receipts. Additionally, the work/payment split chart compares your diary commitments with your fees received – a particularly helpful aid for future financial planning.

For the future, requesting such reports from your clerks is like asking your clerk to travel to Sunderland with your lunchbox. It is simply unwise, unnecessary – and uneconomic. Rather than fearing a digital future, now is the time to take ownership, engage and embrace the opportunities that it affords. You never know, with use, in time, you may completely transform your practice management.

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Will the Supreme Court back off from interfering on a Scottish independence referendum?

(Photo by Jeff J Mitchell/Getty Images)

A post about the role of the Supreme Court on constitutional issues, and whether the ‘Gina Miller’ decision on 24 September 2019 may be pivotal on the question of a referendum.

My most assiduous reader will recall my post concerning the Gina Miller case which related to Boris Johnson’s prorogation of the UK Parliament. What lay behind Miller’s application really was Boris’s attempt to sideline parliamentary scrutiny of the referendum result. On that topic, whilst upholding the sovereignty of Parliament, the Supreme Court lay down the clearest marker that courts would be willing to make a determination on any constitutional issue.

The court started by setting the scene, in particular concerning the legal status of referendum.

Lady Hale said at paragraph 7 of her judgment, ‘As everyone knows, a referendum was held…on 23rd June 2016. The majority of those voting voted to leave the European Union. Technically, the result was not legally binding. But the Government had pledged to honour the result and it has since been treated as politically and democratically binding. Successive Governments and Parliament have acted on that basis.‘

Constitutionally, courts leave political choices to politicians. But the Supreme Court laid down a marker.

At paragraph 31 she continued, ‘although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it…almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.‘

At paragraph 34 she added, ‘if the issue before the court is justiciable, deciding it will not offend against the separation of powers. As we have just indicated, the court will be
performing its proper function under our constitution.‘

Then Lady Hale set out the power balance between government and court.

At paragraph 39 she concluded, ‘Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the
question raised is political in tone or context.‘

I have no doubt that a referral to the Supreme Court would result in much argument, including hitherto unargued case law and interpretation of further extracts of Lady Hale’s judgment, but the writing here is already on the wall. In referring to upholding ‘values and principles of our constitution’ the court was effectively saying that constitutional interpretation was right up the court’s street, and they were best placed to do it!

Following the Scottish Parliamentary election, Nicola Sturgeon and her SDP members will undoubtedly at some stage – perhaps when Scottish opinion coalesces – press for a further referendum on independence. They will draw attention to a democratic process that signals a nation’s choice, currently blocked by constitutional impasse. It could be a messy battle.

The first two questions that I posed in 2019 were:

1. Has the intervention of the courts assisted constitutional clarity, or complicated it?
2. In its focus on the paramountcy of Parliamentary sovereignty, has the Supreme Court left itself a hostage to fortune in relation to future issues involving the UK Parliament’s forfeiture of sovereignty? 

I sense that those same questions may be about to come to the fore before too long. If involved, will the Supreme Court back a Westminster government – or support the will of the Scots for another, perhaps this time, decisive referendum vote?

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Top tips for lawyers: standards and regulation

A post concerning precautions that professionals should consider in an age of regulation and litigation.

Nearly four years ago, I published a well received post containing tips for lawyers, entitled the Barrister’s Survival Guide. One of those tips concerned professional protection: and reminded by today’s Boris/sleaze row it is that topic that I would like to revisit.

The move to online professional registration means that our authorisation to practice and professional insurance are arranged seamlessly by email and credit card, giving us a false sense of security that we have ‘done what is required’. But read some of the disciplinary entries on The Bar Tribunals and Adjudication Service web, and you will realise that staying safe is not simply about ticking boxes. It also involves both integrity – and wearing condoms.

I suspect that nothing I write will assist you with your integrity, central to the role of being a barrister. Integrity is something you have, value and preserve; or you sacrifice, and when gone, in the eyes of your peers it is gone for ever. However, maybe I can assist with some tips on personal protection, gained over the last forty odd years, and often overlooked in the pressures of day-to-day practice.

As presenting counsel for two decades I was involved in a number of senior officer police corruption hearings for various constabularies. I had to question how otherwise honest and competent police officers could so dramatically fall from grace. What stood out then was the importance of keeping records of the options available at the time decisions are taken, the available evidence on which choices were to be made, and the reasoning for the outcome. This prompted me to advise every Chief Constable that they should prepare today for the public inquiry challenge in four years time.

For many barristers the pandemic and advent of remote hearings has concertinaed multiple cases into compressed segments of our day, with hardly a moment to take breath or reflect on the decisions we have taken and their justification. Save for the peremptory attendance note, there is a temptation to see the hearing as ‘done’, and to swiftly move on to the next case.

Core duties of barristers – core duties 3, 5 & 7 and the consequential rules and guidance

Core Duty 3: You must act with honesty and integrity.

Core Duty 5: You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.

Core Duty 7: You must provide a competent standard of work and service to each client.

I have chosen to highlight these three duties from the regulatory framework, as here, barristers are exposed to the greatest peril. It should be remembered that core duties 3 & 5 covers every aspect of a barrister’s life, both professional and personal.

Rules and guidance flesh out the core duties, for example, in relation to core duty 3:

rC9
Your duty to act with honesty and with integrity under CD3 includes the following requirements:
1. you must not knowingly or recklessly mislead or attempt to mislead anyone;
2. you must not draft any statement of case, witness statement, affidavit or other document containing:
a) any statement of fact or contention which is not supported by your client or by your instructions;
b) any contention which you do not consider to be properly arguable…. 

rC15
Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client (CD7) and to
keep the affairs of each client confidential (CD6) includes the following obligations:
1. you must promote fearlessly and by all proper and lawful means the client’s best interests;
2. you must do so without regard to your own interests or to any consequences to you (which may include, for the avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook);
3. you must do so without regard to the consequences to any other person (whether to your professional client, employer or any other person);
5. you must protect the confidentiality of each client’s affairs, except for such disclosures as are required or permitted by law or to which your client gives informed consent.

Where you are a BSB authorised individual, you are personally responsible for your own conduct and for your professional work. You must use your own professional judgment in relation to those matters on which you are instructed and be able to justify your decisions and actions.

This sample identifies a number of areas where barristers may find themselves exposed to proceedings before The Bar Tribunals and Adjudication Service: for example careless or unevidenced drafting of position statements on the basis of telephone instructions, raising a defective argument which if surrounded by colleagues in court you might have avoided, or permitting disclosure of personal sensitive information without the security of written instructions.

To address these potential pitfalls it may be wise to record your client’s choices and decisions, their instructions and the reasons for them; your advice to them, the known facts on which your advice was based, and your justification for it.

Our attendance note may be the best (and in current times the only) vehicle to record these matters. Promptly prepared, uploaded and shared this will at least provide a clear understanding of your thought processes, why you did what you did, and the justification for decisions before any issue arises in relation to them.

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Remember the Identity Cards Act 2006 – is now the time to have a card?

Doubtless, few of my readers will be old enough to remember the war time National Registration Act 1939, and none its predecessor, the National Registration Act 1915. The image above is my card, issued under the 1939 Act in 1950, as I was newborn, signed by my father; and on the inside detailing my name, address, date of birth and registration number (which later became my National Health number). Had I been an adult, it would also have shown my gender, role and occupation, various addresses at which I had lived and marital status.

More within living memory, do you recall the Identity Cards Act 2006?

Conservative Prime Minister John Major and Michael Howard had ideas for the introduction of an identity card, but it was Labour’s Tony Blair and David Blunkett who seized the nettle (so to speak) in November 2004. The Bill passed into law following the 2005 election, on 30 March 2006.

The idea was for a card that would provide a convenient mechanism by which the holder could establish their identity (dressed more attractively as an ‘entitlement card’). For security it could contain up to ten fingerprints, the holder’s facial and iris scans, present and previous addresses; but it also provided links to government data bases, including importantly, the controversial National Identity Register. In post-9-11 Britain an identity card seemed a plausible idea. But not only was technology deficient to support its introduction, the era saw the rise of human rights activists who linked the concept of an identity card to oppressive regimes past and present. Nick Clegg and the Lib-Dems put paid to it following the coalition, on 21 January 2011. For those who have not clicked the link, destruction of the information was required by section 3 Identity Documents Act 2010, ordering the Secretary of State to ensure that all the information recorded in the National Identity Register was destroyed before the end of the period of two months beginning with the day on which the Act is passed. I understand that a bit of a ceremony was made of the final shredding in Whitham, Essex!

On 7 February 2021 I posted a piece about vaccination passports in which I addressed some of the national and international issues, not dissimilar from those raised in relation to identity cards. It was then apparent that the government was backing two horses – funding research into the viability of a NHS plug-in, whilst denying the concept of a vaccine passport.

Unclear messages continue, but politically Boris Johnson and Keir Starmer (describing them as ‘un-British’) appear to have taken polemic positions. The cross-party triumvirate, Diane Abbott, Esther McVey and Layla Moran, supported by Baroness Chakrabarti, Iain Duncan Smith and Jeremy Corbin are lined up in opposition. Perhaps the idea of vaccine validation will be left to a private enterprise Covid-19 app? Matters are certainly apace in Denmark, and Netcompany’s app may become a European-wide option.

In light of a plethora of publications and statements from both politicians and intellectuals (frequently distinct groups), my amateur views are probably unimportant. Yet speaking for myself, I just don’t understand the fuss.

If we seek to avoid spread of a potentially fatal disease, and importantly the incursion of more challenging variants, we need to take practical steps to identify who is a risk, and who is at risk. That these may involve emotionally discriminating and difficult decisions is simply one of the inevitable consequences of pandemic.

For my part – especially when I pay by phone or take my credit card from a wad of disparate cards in my wallet – I note that my identity is already tracked and traced, and simply wonder why I cannot have a single high-security iris protected app that ensures that I am knowingly present when my data, wherever it is stored, is accessed?

Maybe now is a good time to forget the signatures, the PINs and the passwords – perhaps too the cards, and have one simple modern mechanism to establish our identity?

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Legal London through the eyes of a 20th century journalist and a 21st century lawyer.

A post about sanctuary – told by the travel journalist Henry Vollam Morton – with assistance from the writer

As I write, I lunch alone in the monastery gardens of Convento San Ramon Nonato. A wide stone corridor leads from the cloisters to Calle Reconquista, a street bustling with lawyers who travel daily into Buenos Aires downtown. Yet here in the sun-drenched convent is a place of peace and a quiet solitariness, away from distant sound of humanity, interrupted only by the quarter hour monastic bell.

It has not always been thus. In 1806 San Ramon Nonato was the dangerous spot where the Spanish immigrants of Buenos Aires gathered to swear allegiance to their cause – the removal by force of their recent British overlords. After 46 days of occupation, the King’s representative William Carr Beresford was forced to surrender to the Spanish general, Santiago de Liniers; and the Rio de la Plata was returned to Spanish control.

Back in 21^st century England, pandemic has changed historic legal London, perhaps for ever. An odd taxi stops in the Strand for the few lawyers that leave the Royal Courts of Justice. Middle Temple Lane, once strewn with barristers and their clerks is now a ghostly backwater. The closed courtyards beyond, minus footfall, echo with rain on stone flags.

In his visit to the Temple, London, H V Morton recognised its strange value of solitariness, and commented on the spiritual vacuum for those like me, who reflect back from their travels to legal London. First published in 1951, in chapter 4 of In Search of London, HVM examines the Temple through a melancholic prism of loneliness.

‘For many centuries, Londoners have slipped away from the turmoil of the City, taking with them to this ancient sanctuary the burden of their sorrows and their perplexities. While the Temple belongs officially to the Law, whose minions may be seen hurrying about carrying beneath their arms sheafs of papers tied with red tape, it belongs equally to all the men and women who have taken to it the personal problems of life. I am not thinking  of those problems placed upon the desk of ‘my learned friend’, but of the things of which lonely individuals think when they seek the solitude of the Temple in odd moments stolen from a lunch hour, as they sit listening to the shrillness of the sparrows and the sound of feet upon the worn pavements. We who live in an ancient country hallowed by many centuries of living rarely consider the effect upon us of this background of experience. It is only when we go to live in a new country, where the fathers of living men were pioneers, that we sense a spiritual vacuum and miss the background of England, or of London, which whether we consciously know it or not, tells us that in the long catalogue of human woes no sorrow or perplexity is new.’

Like the now tranquil Convento San Ramon Nonato in Buenos Aires, the Temple in London has not always enjoyed peace with the Crown.

In 1668, when invited to dinner in the Inns of Court and asked not to come ‘in state’, the King’s representative, Lord Mayor Sir William Turner replied ‘that he would go with his sword, and see who would dare to take it down.’ Morton tells the tale.

‘When he arrived, a crowd of barristers and students wearing rapiers beneath their gowns met him and told him that unless he lowered the City’s sword he would not be admitted to the hall. As he defied them, there was a rush for the sword, the Sword-bearer was injured, the City Marshal’s men were hustled out and the Lord Mayor had to take refuge in friendly chambers. Meanwhile the drums were beaten to call out the trained bands, and messengers were sent to Whitehall to tell Charles II that a first-class riot was about to begin. His Majesty, wise as usual, advised the Lord Mayor to go home.’

Whether seeking refuge from the fierce splash of light in the garden of San Ramon Nonato, or sheltering from the rain in the Temple’s ‘Garden Court’, we all need a hallowed place of sanctuary.

Perhaps, in a strange way, that is what a pandemic has provided for the Twenty First Century lawyer?

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Your Royal Highnesses

A post about the title of HRH and its future with the Sussexes

Were you one of their 17 million viewers? Were you online when the ITV Hub crashed? Well, now it’s over – at least the first episode, or should I say – round 1? Was it a knockout? To change the image, did the Sussexes scupper the ‘Royal boat’ in which they had voyaged to California – or will it be safe to sail again?

In the case of HRH The Duchess of Sussex v Associated Newspapers Ltd, Mr Justice Warby found for Meghan Markle against the Mail on Sunday’s breach of the claimant’s privacy, her data protection rights and her copyright action relating to her 27 August 2018 letter to her father.

The decision was to deepen a chasm between the Duchess and the press; and the press has responded in a predictable manner, calling into question the right of Harry and Meghan to retain their Royal titles. And that is the subject of this post – should Harry and Meghan be stripped of their HRH?

The handle ‘HRH’ was more of a 17^th century Italian fad than a truly historic international status. Here in the UK the complicated subject of granting and revoking such titles is effected by a Letters Patent (yes, ‘a’ Letters Patent). Whilst the Princeship of the Sovereign’s heir is one of right and cannot be withdrawn, for others in the Royal family, the titles of Prince/Princess and His or Her Royal Highness are titles in the Sovereign’s gift.

For this post, let us start with Queen Victoria. Before her reign such titles were fairly restricted, but in 1898 she extended the gift:

Crown Office, 31 May 1898, ‘The Queen has been pleased by letters patent under the Great Seal, to declare that the children of the eldest son of any Prince of Wales shall have, and at all times hold and enjoy, the style, title, and attribute of “Royal Highness“.

On 30 November 1917, in a post-war move, reversing Queen Victoria’s decree, King George V resolved to redefine and limit the size of the Royal family by issuing a Letters Patent, published in the London Gazette on 14 December 1917.

’The KING has been pleased by Letters Patent under the Great Seal of the United Kingdom of Great Britain and Ireland, bearing date the 30th ultimo, to define the styles and titles to be borne henceforth by members of the Royal Family. It is declared by the Letters Patent that the children of any Sovereign of the United Kingdom and the children of the sons of any such Sovereign and the eldest living son of the eldest son of the Prince of Wales shall have and at all times hold and enjoy the style, title or attribute of Royal Highness with their titular dignity of Prince or Princess prefixed to their respective Christian names or with their other titles of honour; that save as aforesaid the titles of Royal Highness, Highness or Serene Highness, and the titular dignity of Prince and Princess shall cease except those titles already granted and remaining unrevoked; and that the grandchildren of the sons of any such Sovereign in the direct male line (save only the eldest living son of the eldest son of the Prince of Wales) shall have the style and title enjoyed by the children of Dukes.’

As Royal Musings put it, ‘this Letters Patent limited the title Prince or Princess of the United Kingdom of Great Britain and Ireland (now Northern Ireland) to the children of the Sovereign, the grandchildren of the Sovereign in the male line, and the eldest son of the eldest son of the Prince of Wales (the heir apparent). This meant that great-grandchildren in the male line would no longer be titled as Prince or Princess with the rank of Highness, which had been the case.  In fact, no previous Letters Patent had limited royal titles in the male line although, only the children of the Sovereign, the grandchildren in the male line, and the children of the eldest son the Prince of Wales were entitled to Royal Highness.’  

Also in the wake of the Great War, the Titles Deprivation Act 1917 enabled the Privy Council to ‘enquire into and report the names of any persons enjoying any dignity or title as a peer or British prince who have, during the present war, borne arms against His Majesty or His Allies, or who have adhered to His Majesty’s enemies’. For the rest of us there is the ‘Honours Forfeiture Committee’ headed by the Cabinet Office, which makes recommendations to the Monarch for the removal of civil honours such as Knighthoods to CBE, OBE and MBEs. Sir Jimmy Savile just missed forfeiture of his title this way by dint of his death. It is of note that under previous governments there have been unsuccessful attempts to abolish non-Royal hereditary titles by the Titles (Abolition) Bills of 1964 and 1967.

27 May 1937, after the abdication of his brother Edward, George VI issued letters patent regranting Edward the style as son of a Sovereign, but precluding the style of HRH to Wallis Simpson, or their children should they have any.

On 22 February 1957, Elizabeth II issued letters patent that elevated Philip, Duke of Edinburgh to the status of ‘Prince of the United Kingdom of Great Britain and Northern Ireland’, thus handing him his HRH. Anticipating Charles and Diana’s divorce, in 1996 Letters Patent removed the title of HRH from any divorced spouse of a member of the Royal family.  

On 31 December 2012, the Queen issued Letters Patent declaring that all the children of the eldest son of the Prince of Wales should have both the title Prince or Princess and HRH making George – HRH Prince George of Cambridge, and the Queen’s later great-grandchildren, Charlotte – HRH Princess Charlotte of Cambridge and Louis – HRH Prince Louis of Cambridge. But this extension limited the HRH title to ‘the children of the monarch’s eldest living son’, and not to Harry’s progeny.

However, importantly for this post, in 2018 the Queen awarded Harry and Meghan the titles of the Duke and Duchess of Sussex, making Meghan HRH The Duchess of Sussex. Controversially for the Sussexes, again the privilege did not extend to Archie. 

It is this decision to elevate Meghan that fell for review when Harry and Meghan decided to step back from ‘public life’. So as not to ‘rock the boat’, the Queen was advised to permit retention of the title so long as they did not use it in their proposed commercial arrangements.

According to the BBC, when this matter was addressed in January 2021, the Queen said that following “many months of conversations and more recent discussions” she was “pleased that together we have found a constructive and supportive way forward for my grandson and his family”. “Harry, Meghan and Archie will always be much loved members of my family.” Thanked for their “dedicated work”, the Queen added that she was “particularly proud of how Meghan has so quickly become one of the family.” Buckingham Palace later advised, “The Sussexes will not use their HRH titles as they are no longer working members of the Royal Family.”

It is this that the Oprah interview calls into question. Perhaps now is the time for the Queen to be advised by her Prime Minister and the Privy Council to do the job – to remove Royal titles in their entirety, not as an act of vengeance to the Sussexes, but as a more widespread attempt to hide a shabby Royal family and make the Monarchy more relevant to 2021? Do read my other blog about the Sussexes in the Media Monarchy post here.

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Power of Attorney – a practical guide

A post about why you should consider granting a Power of Attorney and how to go about it.

If you have not already done so, you should address the issue of what will happen if you, or someone close to you, loses capacity to manage their own health decisions and financial affairs.

As I recorded in my sister blog in an earlier post, loss of capacity may arise with little or no warning. One day you are in charge of your affairs – the next you need all the support and assistance you can get.

Many people think that executing a Power of Attorney (POA) will be sufficient. As both a lawyer and an attorney I can tell you that it is not. The POA is the preliminary step, and in this post, I will guide you through some of the rest – the challenges that can arise should you not prepare well for the day that you may need to hand over control to others.

Why should I make a POA?

Whilst the purpose of this post is not to persuade you (or your relative) to make a POA, it is right to highlight the disadvantages of not having done so.

If you cannot make important, life-affecting decisions for yourself, someone else may have to make them for you. The bottom line is that many such decisions are made in a multi-agency process, often led by a risk-aversive practice nurse and social worker who are unlikely to know your detailed background, priorities or wishes. How much better to have these choices considered in light of your likely preferences?

Preparing the POA

The process of preparing POAs is not as complicated as many may expect. You do not need a lawyer. Here is the excellent government web site that will guide you through the process easily at no charge. Of equal importance, it sets out how you may change or revoke a POA that has been registered with the Office of the Public Guardian (OPG).

Choice of attorneys

In preparing your POA you should consider three key matters: how many attorneys do you wish to appoint; who will be your attorneys; and must they act jointly, or can they exercise their power independently should the need arise?

Former Court of Protection judge, Denzil Lush wrote a realistically critical article concerning the dangers that may arise from granting POAs, saying that after adjudicating in 6,000 cases, he would never himself grant such a power. I note that his concerns focus around possible family division arising from an unaccounted exercise of these powers, rather than from the powers themselves. Like all judges, Lush was exposed to those occasions when things went badly wrong, rather than the considerable number of examples where the POA was a lifeline to smooth management of a donor’s affairs.

But Lush’s comments highlight the very real importance of attorney selection. For some, a son, daughter or other close caring relative is the obvious choice. But it is not necessarily the most appropriate option for others. Following Denzil’s lead, if in doubt, do not grant the power and leave the matter to the Court of Protection to appoint a ‘deputy’. That said, do bear in mind that proceeding through the Court of Protection will result in delay, is not a cheap, simple or a speedy option, and the powers granted will be more cumbersome for the appointed deputy than for your personal attorney under a POA.

When appointing more than one attorney (two Attorneys is advised), the next question is whether the attorneys may act singly, or must act jointly in relation to your affairs. To resolve this choice I would suggest that the donor sits down with their proposed attorneys and discusses these options and their implications. Should you conclude that your attorneys must act jointly, you will have a degree of extra security – but at the expense of making the POA more difficult to manage. For example, banks or healthcare providers may require written instructions from all attorneys before they will undertake even the simplest transaction.

In discussing who will be your attorneys, think innovatively of checks and balances. Who is likely to survive you? Who has both the time and skills to manage your affairs? Who will be sensitive, responsive and honest? How well will your chosen attorneys share auditing information with other key members of your family?

Registering the POA

I have encountered some examples of cases where a relative has granted POAs, but failed to register them with the Office of the Public Guardian (OPG). Registration is a fairly simple task, and the registration fee is modest. It is usually completed in about two months. Without registration, powers cannot be exercised and the process of making a POA will have been wasted.

Using your POA

Registration simply ensures that the POA delegation is legally valid. Before it can be used, organisations that are expected to rely on it will require sight of the original grant or a certified copy. Each company or organisation will individually record the fact of a delegated power.

POA for health and welfare

It is wise to ensure that the donor’s NHS GP provider is notified that a POA for health and welfare has been registered with the OPG, by asking that it be recorded on the patient’s medical records. This means that when/if a donor loses capacity, decision making can immediately be transferred to the attorneys.

You will note that the NHS website linked above also refers to ‘Advance Decisions’ – which were considered in our earlier post here. I have a copy of my Advance Decision lodged digitally with my GP.

POA for property and financial affairs

Unlike the health and welfare POA, the absence of a doctor to assess loss of capacity means that delegating decisions concerning finances is a more sensitive step.

Financial institutions have differing procedures for registering your POA with them, and the process will take about an hour of face-to-face meeting. Attorneys will be expected to provide the original or certified copy of the POA, evidence of their identity (such as passport), evidence of their address, and their personal banking details. If the donor and the attorney both bank with the same provider, this process is foreshortened.

Once satisfied that a genuine POA for property and finance has been registered with the OPG and is ready to be activated, bank providers can issue a POA card for each attorney for each of the donor’s accounts held by them. This will enable purchases, transfers and other transactions on the donor’s account, and will permit online access. I strongly recommend online access, as in the case of multiple attorneys, each of them then may have access to the financial accounts to track and check the purpose of transactions.

Whilst digitising online access to the donor’s bank accounts, consider digitising all utilities – water, power, telephone, council tax. Doing so will provide the attorney with immediate online access to track payments and usage.

To sum up

A POA is an essential tool when it comes to the loss of capacity. With extended survival, a donor may be assisted by their attorney for many years. Using Advance Decisions and Advance Statements in conjunction with the POA will add a much-needed safeguard for both donor and attorney. A decision to make them can never be too early – but may often be too late.

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Filters, backgrounds and screens

A post about video connection – pitfalls and successes

With his dated Dell software, USA lawyer Rod Ponton got stuck as a kitten when he connected by Zoom for his hearing with the 394th Judicial District Court. However, it seems Judge Roy Ferguson handled the incident purfectly.

Readers have asked me how they may replicate Rod’s feline form on screen. Baobao Zhang will show you how to do this – and, importantly, how to remove the filter before you join a hearing.

There is, however, a serious side to this post. In a previous post here I mentioned the fact that I had acquired a screen – not simply a virtual background on ZOOM – but a folding screen which transforms my study/office into a studio. Coupled with a condenser microphone, this offers me clear and uncluttered connection for video hearings.

But what of our judiciary? Some judges are connecting from their homes during the pandemic, and given recent developments, it is possible that they will continue to do so for some time. Recent surveys of lawyers indicate that the professions, having got to grips with the technology, are more than content to continue to use video hearings in the future, which means that remote connection for directions appointments are likely to become mainstream rather than temporary.

Might it follow that the time is ripe for the Ministry of Justice/Court Service to provide all circuit judges, district judges, recorders and deputies with a high quality microphone, camera – and a judicial screen bearing the Royal Coat of Arms: one that would transform their attic into a viable hearing room? This way, we could avoid some of the privacy problems that arise from bedroom video connection, enabling a truly professional look to our future virtual court hearings.

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Vaccine passport

A post to consider whether and why we should have digital proof of Covid-19 vaccination.

My Oxford AstraZenica first jab was delivered on the penultimate day of January when I was called to the vaccination centre as ‘an extra’ so as to avoid wasting the last drop of an opened batch. The needle slipped into my upper arm without more than ‘a scratch’. That night, and for 24 hours, my immune system kicked in leaving me tired, weak, fuzzy and fragile. On Monday I awoke with just a tender deltoid. For me, both before and since, the decision to be vaccinated was effortless.

Before leaving the vaccination centre I was handed a Covid-19 record card, showing my name, the date of delivery and the batch number. Glancing across, I realised that the information was simply copied out from a computer screen, linking the National Immunisation Vaccination System digitally to my NHS number.

And the purpose of this post? It’s simple – why not make the digital record available to those that seek it? And, on topic, why should vaccination not be a requirement to attend court?

Whilst Nadhim Zahawi, known as the ‘Vaccine Minister’, is on record as saying that the UK government is “looking at the technology” to create vaccine passports, the Chancellor of the Duchy of Lancaster, Michael Gove has said a vaccine passport was “not the plan,” although businesses would be able to “make decisions about who they will admit and why”.

Perhaps those businesses will get to deploy the proposed Mvine-iProov UK passport which enables a person’s test result or vaccination status to be registered and proved, curiously, without disclosing their identity. Two companies are currently engaged in passport trials for health authorities, due to complete by 31 March 2021.

Elsewhere in Europe the idea of a vaccine passport appears to be gathering momentum. Greece has urged the EU to introduce a vaccination certificate to enable ‘free movement of those vaccinated’, no doubt to rescue their tourist industry. Denmark is already developing a vaccination passport for Danes, and Estonia is creating a vaccine ‘smart yellow card’. Interestingly, Spain has taken another route – and is compiling a database of refuseniks.

As a lawyer, I am not persuaded by ‘human rights’ arguments of vaccine refusers who deny others the right to prove their vaccine status. Unlike the USA, here in the UK (see the link to the Court of Protection case E (Vaccine) 2021 EWCOP 7) courts have always balanced rights with responsibilities. Whilst the job of government is to protect and ensure public health, the views of a minority should not sway government policy from measures that will preclude, minimise or identify virus risk. Those who decline the vaccine may do so, but they should not be protected from the inference that, as unvaccinated people, they may be the next vectors of the virus.

My concerns go beyond those of the travel industry. What of the care homes where elderly and vulnerable residents are put at needless risk by so-called ‘carers’ who have ‘exercised their right’ to refuse a vaccine? Am I alone in feeling that anyone who takes responsibility for another’s health should be expected to minimise their role in Covid transmission?

Air travel and care settings are not the principal hot houses for passing on the virus. Studies have shown that the workplace is also a high-risk environment. As many lawyers have been classified as key workers, perhaps now is the time to face our ethical responsibility, like Pimlico Plumbers, and ensure we are vaccinated as a professional requirement?

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Lawyers risk Covid-19

A post about protecting your health through vitamin D

Have you heard enough about the pandemic to last you a lifetime? Why would you bother reading this, yet another post on the topic?

Well, if you are still here, I have some good news for you. Whilst not conclusive, there appears to be a simple, cost-effective way to reduce your Covid risk.

Over the past twelve months, I have been following pulmonologist & critical care specialist Professor Roger Seheult, MD, and UK’s Dr John Campbell who have between them over 1.8m media followers. Recently, these very different experts from either side of the Atlantic have joined together to affirm a joint approach on the question of vitamin D supplements as a method of diminishing your susceptibility to the virus.

That is not to say that vitamin D is a silver bullet by any means, but it stands as an excellent method to support and strengthen your immune system, thus providing a greater prospect of avoiding or surviving Covid-19.

Readers of my lifestyle blog will recall my June 2020 post on the topic (which I invite you to read if you have not already done so). In the Lancet article published on 20 May 2020 ‘Vitamin-D and COVID-19: do deficient risk a poorer outcome?‘ , the authors wrote, ‘a growing body of circumstantial evidence now also specifically links outcomes of COVID-19 and vitamin D status’. After my post, a further article was published in July 2020 in the Oxford Academic JCEM, ‘Vitamin D Status and Risk of All-Cause and Cause-Specific Mortality in a Large Cohort: Results From the UK Biobank‘.

On 10 September 2020, Linda L. Benskin undertook a review of the preliminary evidence that COVID-19 risk and severity is increased in vitamin D deficiency; and following her findings, over 200 scientists & doctors have called for increased vitamin D use to combat COVID-19.

Scientific evidence indicates vitamin D reduces infections & deaths. This leads to the question of how to rectify a vitamin D deficiency, and what is the safe dose of supplements to take?

Linda Benskin’s detailed report reveals the answers to these questions, but more helpful is the signatories chart attached to the open letter, showing that two high-dose tablets of 2000 IU appears to be the clinicians’ and scientists’ recommended dose (and indeed is that taken by Dr Benskin); whilst some clinicians self-administer a higher intake without adverse effect.

Clearly, no amount of vitamin D will protect you against Covid-19 if you don’t follow the ordinary, logical safe steps of washing, masks, distance and ventilation of enclosed spaces, such as courts. But by adding a simple preventative measure of a vitamin supplement, what have you to lose at less than 2 pence per day?

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Recognising a new normal

A post about barristers staying ahead in business by moving on from old – to new ways.

On 2 April 2020 I published a post ‘Return to Normal‘ that dealt with potential systemic legacies from Covid-19. There I foresaw that the pandemic would persist, that family lawyers needed new ways of working, and that the current Corona-challenge would present opportunities for us to do things differently.

In this post I wanted to address these changes and the future opportunities for barristers.

With the January 2020 opening of the Newcastle Civil & Family Courts and Tribunals Centre in Barras Bridge, Newcastle upon Tyne, a physical presence and ready access to the new court building appeared to be a priority, and regional barristers rushed to source new office space within walking distance of the courts.

Twelve months on, how things have changed! Whilst the healthy and hardy still attend the court centre, footfall there has dropped dramatically. Advocates, parties and witnesses that do not need to attend in person are precluded from attending. Even the judges are working remotely whenever possible. Of course the court centre remains central to the administration of justice, but acts as a ‘hub’ and is no longer the sole resource. New ways of working have evolved that enable practitioners and parties to interact and connect remotely.

With the approval of Pfizer and Oxford vaccines we are starting to anticipate an end to the pandemic. But how will the new landscape look, and will the changes that have occurred during Covid-19 be sustained? What should we be considering now in preparation for a new normal?

The changes in processes, systems and working practices during the pandemic have persisted long enough to change the legal landscape irreversibly. For example, why would we revert to paper practices? Why, save for sensitive cases, should we undertake face-to-face conferencing? What would be the point of attending court for interim hearings rather than conducting them by telephone or video? Why give up flexible working for time-consuming travel? Online access to justice has brought ‘justice-online’. Depriving ourselves of this would be the modern equivalent of riding a horse, rather than driving a car.

Changes go further. Our clerks and administrative staff in chambers now have the facility to work remotely, supporting out-of-hours access as a new normal. In the same way we simultaneously communicate with our clients in online hearings, for the first time our clerks can integrate seamlessly and communicate with each other whilst dealing with clients and queries.

Even our social interaction as barristers has been digitised. Remote contact by ZOOM may not be a perfect substitute for direct human contact, but what exactly are we missing? How much meaningful social interaction occurs by the workplace coffee machine?

As many readers may know, since 2007 I have spent part of each year in Buenos Aires. There, the majority of people live, work and socialise within their barrio. Perhaps there is something to be learned from their local experience in relation to the quality of our future working lives? Imagine post-lockdown changes in your neighbourhood that supported you whilst working from home, such as street cafés and technical support hubs?

Is now the right time to anticipate these changes, embrace a new future, and to prepare for a new normal rather than to resist it?

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Impoverished by institutional boundaries

A post concerning the growing gap between legal disciplines, and its consequence for the legal profession.

When I started practice in 1979, common law barristers were expected to cover all of the common law legal fields. Whilst up in Lincoln’s Inn you could find a different breed, rarely encountered at court, that just dealt with chancery, shipping and revenue, the rest of us were ‘generalists’ at heart. During my pupillage, civil silks would appear in criminal trials when needed, and even the most senior criminal practitioners ventured back into the County and High Court for civil and wardship proceedings if the remuneration was right.

As legal fields became increasingly ‘self-professionalised’, disciplinary chasms started to separate family, criminal, civil, and employment lawyers, to the point where we now find ourselves unable to understand each other’s systems and worse, unable to speak the other’s language. Today pupils are recruited to practice in specific legal fields, and the opportunities for general common law practice have all but vanished.

Some might say that this development has furthered the professionalism of practitioners who confine themselves to one specialist area. Clearly, they gain familiarity with their opponents and their judges; they are the first to know about the latest case; and they are able to immerse themselves in their specialist disciplinary culture.

The question remains, ‘is this wise?’ As lawyers, should we be specialising at such an early stage of our careers, or indeed at all?

With the advent of digital working, perhaps specialisation became inevitable. The pressures of productivity give little time to research and reflect. Instant advice and overnight preparation has become the norm. In such a climate, perhaps we need to work as specialists to survive. In other regards, specialisation has made our job a little more comfortable – we have our specialist tool box at hand, and our tools are constantly sharpened.

“It was an unwillingness to make daring leaps across institutional boundaries that contributed to the neglect of symbiotic relationships for much of the twentieth century.” The evolutionary biologist Professor Jan Sapp opined that the Darwinian fixation of ‘inherited development’ made plant scientists blind to the possibility of horizontal gene transfer from mycelium, and of symbiosis between organisms.

Now, are we making a similar error in denying ourselves a heuristic inter-specialism legal overview, interaction and skill transfer? Today we learn from our specialist teachers, and we evolve vertically – neglecting the serious evolutionary benefits of lateral gifts from other fields. A good example of this is in relation to the civil procedure rules introduced by Lord Woolfe in 1999. How long did it take for these revolutionary, useful and progressive developments to be recognised in regulatory and employment law?

In 1999 I trained and qualified as a mediator and arbitrator. Many of the techniques I learned then – such as group conferencing, reality testing and role-reversal – were immediately transferrable to the field of family law. Yet it took decades for viable concepts to be assimilated across these disciplines. The reason was that few practitioners maintained inter-disciplinary practices, slipping into one specialism or the other, and in consequence there was inadequate volume from multi-disciplinary voices calling for change.

In an era of exponential digitalisation, we face the risk of further dichotomies in the way we manage our specialisms. In a previous blog, in commenting on advocacy in family courts, I highlighted the possibility that family courts had ‘floated away from the mainstream civil legal process’, with altered rules of evidence and procedure. Might this be the un-intentioned consequence of increased specialisation? Do we really need separate specialist systems, operated independently of each other. If so, what message does that send to the lay communities we seek to serve?

It is hard enough explaining to clients the reasons for different burdens and standards of proof in different areas of the law. How much harder to justify totally separate rule books and legal requirements for separated legal fields? If common law justice is to have integrity, should it not be delivered by a band of common lawyers who choose to sing to the same tune?

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Experts on line

A post about remote connection of experts to family proceedings

In England and Wales, the Covid-19 pandemic accelerated the development of online court hearings. I attended my last court hearing in person on 12 March 2020. By 2 April, I participated in my first remote public law family hearing from my home in North East England, and on 20 May undertook my first video final hearing in a family case.

In May 2020 the Judicial College published their paper ‘Good Practice for Remote Hearings‘, and Courts and Tribunals Judiciary their advice and guidance on handling hearings remotely. By July 2020 the Cloud Video Platform (CVP), which been introduced across 60 crown courts and 93 magistrates’ courts, had been used in over 3,600 crown court hearings and more than 7,000 overnight remand cases by magistrates.

Initially, there was a high level of ambivalence concerning remote video hearings in family law. Advocating online methods, on 19 March I published a post ‘Opportunities and Video Hearings‘, and on 2 April posted ‘Return to Normal‘ – suggesting that the ‘old normal’ should be replaced by the new.  The Nuffield Family Justice Observatory consultation report disclosed a gradual change in response to remote and hybrid hearings – with positive experiences starting to overtake negative attitudes. And on 9 June I proposed that we should prepare for the next pandemic, little knowing then that it would be a SARS-CoV-2 variant VUI-202012/01 that would protract our need for remote hearings.

One significant benefit that has arisen from the pandemic is an improved access to experts. With the courts’ encouragement, increasingly we have interrogated experts before they finalised their reports; and using online video, they have been able to consult each other and formulate areas of agreement before a hearing. Importantly, experts have been encouraged to give their evidence using remote link rather than taking time out of busy clinical schedules to attend the court centre in person.

On 2 September 2020, chaired by Lord Saville, the Judicial Committee of the Academy of Experts published guidance for expert witnesses on giving evidence remotely. The question is – should this development of remote expert evidence brought about by the pandemic, continue as a ‘new normal’?

In addressing this it is wise to review the distinctions between observational evidence and expert evidence. Most lay or professional witnesses are called into court to be questioned about circumstances – what they did, saw, heard or said, when, how and why? Acknowledged experts on the other hand generally work from a basis of peer-reviewed facts, analysis and understanding, and the questions we ask of them go to the extent of their expertise, their application of it, and the reliability of conclusions based on it.

It follows that the impression created by the ‘demeanour’ of an expert witness is massively less significant than that of their reasoning. Clearly conscious or unconscious biases and prejudices of experts may still need to be exposed, but that task is usually based on contrasting their evidence with the science, rather than analysing their appearance and behaviour. Which means that the loss of non verbal ‘cues and tells’ is of much less importance than would be with other witnesses.

Perhaps now is the time to recognise that expecting experts – especially clinicians – to take time away from their practices and place of work to travel to and wait to give evidence in court centres should be a thing of the past. In streamlining justice and to ensure that it is economic and timely, should not our first step be to acknowledge that we expect our experts appear by video rather than in person?

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House of Lords – stay, go or change?

A post about the role of the House of Lords, its relationship with the Commons and their collective supervision by the Supreme Court

The editor of ‘Spiked Online’, Brendan O’Neill described the House of Lords as a “bloated ridiculous anti-democratic chamber“, and said that he believes it votes against things the general public want. This comes in the wake of news that in 5 years, members of the House of Lords spent £1.7million in the Palace on alcohol. (Although I have to say, from the average daily attendance of between 400-500 members over 141 sitting days, this does come to just over £5 per day per member).

Whilst Netflix’ screening of ‘The Crown’, a fictionalised dramatisation of the royal family, has heightened our intolerance of privilege, are members of the Lords simply creatures of patronage, wholly unaccountable to UK’s citizens?

At the time of writing, absolute membership of the House of Lords is 812, with 793 eligible in 2019, including 26 bishops and up to 92 hereditary peers. 27% are women, and the average age of all is 70 years. Most are political appointments, although a minority have been nominated because of social distinction.

In its 2018 paper, Democratic Audit identified what their team considered to be the requirements and functions of a second parliamentary chamber. I have summarised these (to make them digestible as a starting point):

• Those who may approve, amend or reject legislation should be elected by voters, elected by the elected chamber, or appointed by a fully accountable government.
• No-one should sit in a second chamber by virtue of birth, wealth, or donating money or services to politicians.
• Serving in the second chamber may confer distinction, but should not involve an ‘honours’ system.
• Appointments to the chamber should be vetted for representative diversity by a regulatory body that may also remove those who breach legal or ethical standards.

And it should:

• Act as a constitutional policy check by identifying legislative changes that breach democratic principles.
• Help with legislative drafting, scrutiny and amendment.
• Increase the range of access to government.
• Re-balance geographical representation.
• Widen the range of expertise amongst legislators.
• Provide a mechanism to encourage ‘emeritus’ politicians to stay in public life.
• Offer a measure of policy continuity for the future.

Following legislative change in 2009, by October 2012 twelve justices of the Supreme Court took over the appellate jurisdiction of the House of Lords, making it, amongst other functions, effectively a constitutional court with power to rule on the constitutionality of Acts of an otherwise sovereign parliament. Members of that court are vetted and appointed by an independent selection commission of senior ad hoc judges and members of the Appointments Commission for England and Wales.

Whilst the Supreme Court may provide the ultimate protection from constitutional divergence, it is the ‘sovereignty’ of parliament-as-a-whole that creates a difficulty when viewing the role of the Lords.

Put simply, whilst we are willing to submit to an elected House of Commons, how do we feel about unelected, on occasions untalented political cronies being appointed to a second sovereign body sitting exclusively in London?

This blogger senses that the time is now right for change. Brendan O’Neill may have over-stated the problem, and fails to suggest a real alternative other than abolition. Maybe we should learn from the historic process when we divested the House of Lords of its judicial function; and return to the template from ‘Democratic Audit’ on what to achieve in a reformed second chamber?

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The right to be heard

A post about the late Andrew Mollinson, Senior Court Watcher, and the right to be heard in court

Today at Sheffield Crown Court a heartfelt tribute was paid by Hon Recorder Jeremy Richardson QC, HH Judge Peter Kelson QC and Naz Hussain QC to Andrew Mollinson, Senior Court Watcher of England and Wales.

Andrew, as we simply knew him, had attended Crown Courts across the North Eastern Circuit for 42 years prior to his death this month. When not at his home court of Sheffield, he could be found in the wake of Sheffield barristers as they sat as judges elsewhere, or visited the High Court in London and the Court of Appeal. He was one of vanishing breed of court watchers – members of the public who sit in court to hear case after case, and to follow their favourite practitioners. Some would say that Andrew was pre-eminent as a court watcher due to his engaging personality and unfailing attentiveness. Better eulogies have been written by others than I could ever muster; but I too wanted to mark Andrew’s remarkable life as a court watcher with that quiet reflection.

When I commenced practice in the late 1970s, judges would say to improperly robed barristers, “Mr…… I can’t hear you” – meaning that the barrister had forfeited their right to be heard in court and had to don their wig or adjust their gown. I am sure that Andrew must have heard this on more than one occasion, and as a master court watcher, he would ask around on behalf of his favourites for the loan of a spare gown or barrister’s bands.

However, today, Andrew would have been nonplussed. He was very much present with us in spirit and in the minds of over 100 professionals who attended court remotely, but that said, he would not have heard his valete.

As Hon Recorder Richardson took charge of the proceedings, it became clear that hearing the proceedings were going to be a challenge to the many who connected by video link. Those who know Jeremy Richardson will know that he is eminently audible 100% of the time, but today the technology failed him and us with his words clipped by the microphone. Matters became more difficult during Judge Kelson’s reminiscences, which reverberated momentarily before being stifled. Worse was to come – Naz Hussain QC’s eulogy was, save for his parting sentences, totally silent – his mouth forming words that were never to be heard by other than the handful of guests permitted to be present in the courtroom. If ever we needed a ‘court watcher’, today was the day when we could have done with Andrew, later to ask him, ‘What did Naz say?’

Which brings me to the secondary, but linked purpose of this post. My assiduous reader will recall my recent post ‘Red Tape and Remote Hearings‘ in which I raised the issue of court amplification and recording, suggesting bluetooth microphones as a solution. Coupled with UV-C disinfecting, a tried-and-tested contactless way of destroying microbes at DNA level, the cordless head microphone could revolutionise in-court audibility, remote volume management and recording quality.

What we cannot allow to happen is the haphazard conduct of remote hearings, and events such as Andrew’s eulogy, without proper professional equipment, software and technical support. Andrew’s life gave so many of us a blueprint on constancy and enterprise. Let the disastrous management of his valete teach us another audible lesson for the future.

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A glance back to 2012 and the Virtual Court

A post about the history of remote hearings and how far we have come with them.

Readers of my blog will know that, since March 2020, I have been posting numerous pieces relating to remote legal hearings – their management and efficacity. As we slip back into another lockdown, on 2 November 2020 in support of measures to enable justice, the Chair of the Bar advised,

“During the pandemic, the greater use of virtual hearings wherever possible, in the interests of justice, in all jurisdictions. We are fortified that the Lord Chief Justice has just restated that currently remote hearings must be used to get through more cases and to reduce footfall at court, which is vital if the pandemic is not to spread.“

Looking back eight years ago I published a post on 7 June 2012 titled ‘The Virtual Court’. Of course then I did not foresee a 2020 pandemic, but when I re-read it, I thought it might bear an unedited re-post. Who knows, it might just enable us to look a little further forward?

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‘Hertfordshire, along with Kent, Cheshire and London, have undertaken pilot studies of ‘ the virtual court‘. Designed for criminal cases, prisoners were video linked from prison for remand hearings.

Last week, the blogger video linked yet again from Leeds to the Royal Courts of Justice for a hearing in a family case.

The idea of the virtual court is not new. Nearly a decade and a half ago following the publication of a number of papers on the subject (including this one from Robin Widdison), the then Lord Chancellor Geoff Hoon mooted the idea of virtual court hearings. In 2001, Lord Justice Sir Henry Brooke had a go,  and in November 2011, Lord Neuberger came very close to the concept of the virtual court.

If you were to poll both professional court users and litigants, the blogger suspects that feedback would centre on the age-old issues: cost, delay, stress of attending court, waiting for the case to be called on, not getting on. They are the main reasons that the English legal system has been moving more and more towards alternative dispute resolution. Might ‘the virtual court’ also address or help with all or some of these issues?

Almost all interim hearings could so easily be removed from the court setting to a judge-supported administrative path. Yes, sometimes the parties need to see and hear from the judge in person – where settlement indications are sought (for example in financial dispute resolution meetings). But the sound of the voice and the whites of the eyes are equally audible and visible through video linking.

Just like working from the screen rather than the page, video hearings require new skills from both the lawyers and the judges; and to get them, a degree of new discipline. The blogger is unconvinced by lawyers’ assertions that “it takes the door of the court to broker a settlement”. All that is needed is a culture change. What better way to change the culture of settlement than for judges to prepare for a video hearing by reading the papers and setting an agenda, and the lawyers to prepare their clients properly before the video hearing?

The technology is there, and so is an increasing level of judicial experience of video hearings. The parties to a claim or case could simply attend their solicitor’s offices for a video conference with the judge. Any documentation to be shared could be scanned and emailed and in one simple measure the issues of overcrowded courts in staffed and expensive real estate, long delays and waiting time, court security, costly and lengthy travel arrangements and the unscheduled use of judge’s time, could be reduced.

Or is the legal profession too conservative, profit orientated, orally obsessed, or self-interested to make such developments work? Why has fifteen years of judicial driving towards the virtual court resulted in virtually nothing?

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Making a meal of case management

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A post about family law advocates being remunerated to manage their cases

Throughout Covid-19, my modest income has been largely derived from remote interlocutory hearings at which family cases are judicially managed. But I question why so much court time and public resources should be devoted to them? Isn’t the time ripe to evaluate remote case management so as to streamline the progress of family cases through the court system?

I don’t know about you, but under the pandemic, I sense that many of the issues involved in family case management have devolved to the advocates. That is not to say that we are instrumental in making decisions – they are still made by the judges – but our collaborative choices frequently drive them. Under Covid-19 many more advocates meetings have been directed by the judges, to be managed by skilled advocates for local authorities and children’s guardians. There, issues are highlighted and often resolved by agreement. Experts are identified and their letters of instruction agreed. Provisional timetables are prepared. The course of the case is set in outline. A draft order is circulated and agreed. Where issues arise, succinct position statements are filed so as to make decision making by the judge more effective.

The situation has come about because, under current regulations, advocates are remunerated for their work. If we take a moment to contrast this with the pre-Covid-19 landscape the difference is stark. Then, as there was little (if any) pre-hearing discussion, most case management fell to the oral hearing.

Of course there are still issues on which the advocates agree which fail to meet judicial approval (if there were not, there would be hardly any need for judges and hearings). But we should recognise that our case management processes have evolved away from the courtroom – to ZOOM or TEAMS advocates meetings. In a recent case following a constructive initial case management hearing, two further hearings were vacated with administratively approved orders, leaving the case listed for a future issues resolution hearing/early final hearing.

In previous posts I raised the prospect of online judicial case management (with intervention only to challenge a judge’s decision). On the basis of your overwhelming apathy to that suggestion, I am inclined to abandon it as a worthless cause. But I am confident that many family advocates will agree that we are now doing much of the preparatory work needed for case management – and that whilst there is still a clear role for case management hearings, where advocates are properly paid for their work, many could be achieved administratively without the need for assembly.

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Encountering problems in remotely connecting witnesses to courts

A post about judging a witness’ demeanour and how remote hearings affect this issue.

On 6 June 2020 I posted about WEBs – the ‘Witness Evidence Booth‘ that could be deployed remotely to enable witness evidence to link directly to a court. As so often happens, both the idea and the new technology behind it has been largely ignored by the MOJ-UK (and given the absence of comment – by my reader too).

I suppose one reason to disregard the post was a belief then that, by now, we would have ‘returned to normal’. Those who thought that must have been perennial optimists, ‘head-in-the-sand’ denials, or short-term strategists. The reality was to be different, and it is now clear that we need long term innovative solutions for remote evidence, not just for Covid-19, but for future pathogens that will inevitably appear in time.

A further issue for some practitioners may have been a difficulty in gauging the demeanour of witnesses remotely on screen rather than in flesh. This begs the question ‘how important is a witnesses’s demeanour?’

In R (SS) v Secretary of State for the Home Department [2018] EWCA Civ 1931, Lord Justice Leggatt gave us some guidance:

‘No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.’

As far as the family court is concerned this certainly seems to have been applied last year by Mr Justice MacDonald at paragraph 26 & 43 in Cumbria County Council v S, E & R; whilst the President, Sir Andrew McFarlane took a different view on specific facts in Re P (A Child: Remote Hearing), subsequently clarified at paragraphs 49-58 in Re A (Children) (Remote Hearing: Care and Placement Orders).

All things considered, there appears to be a general acceptance that family courts can safely, and should in many cases, receive evidence remotely.

Which brings me back to witness evidence booths.

Integral to the concept of WEBs was antiviral use of far UVC light at 222 nanometer (nm) wavelength to destroy SARS-CoV-2, an effective, safe, non-invasive process.

Studies suggest that Coronavirus transmission is largely through direct contact with the virus:- face-to-face meeting and exposure to expelled aerosol droplets, or contamination by touch. It is for this reason that the UK government has settled on the three precautions – ‘hands, face and space’. It seems also that viral load plays a part, with studies focusing on indoor contact where, in the course of the day, virus levels may escalate to contaminate and infect.

Since writing my WEBs post, Manuela Buonanno, David Welch, Igor Shuryak & David J. Brenner published their research paper on 24 June 2020 in Nature.com. For those that seek something more accessible than a scientific report, on 7 July 2020 Professor Brenner recorded his TED Talk here, in which he explains how the technology works and answers questions on its safety, limitations and potential.

Suffice it to say, as a virus management technology, far UVC at an appropriate wavelength is an effective, convenient and affordable solution. Combined with other available technology, there is no reason why courts cannot start to operate more widely, or at the very least, receive remote evidence from those that are vulnerable or isolating for other reasons.

A designated family judge has recently reported that there is a real danger of a local lockdown on one of the Circuits due to a spike of Covid-19 cases. Courts already face a staff shortage, with judges and court staff self-isolating whilst waiting for test results. In terms of listing strategy, whilst some witnesses link by CVP (video platform) from their homes (a somewhat unsatisfactory solution), there is the potential for this to be increased by the provision of a bespoke remote witness facility. The problem seems to be that local authorities, solicitors or chambers appear to be unable/unwilling to provide wider public access (and who can blame them for this choice?)

What is needed now is a sustainable strategy to enable every party or witness to connect remotely – safely and reliably to a court where this is required. That is not to say that we dispense with face-to-face examination and cross-examination in contested hearings, but that we have an option, such as WEBs, that permits cases to proceed without delay.

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How are we doing?

A post about our use of technology following on from the Nuffield report

Dear Bob and Ian,

It is nearly six months since the Covid-19 global pandemic closed our courts requiring us to transition to remote and hybrid hearings; and now seems the right time to prepare for the next six months.

The excellent, albeit anecdotal Nuffield Family Justice Observatory consultation report (May 2020)  pulled together some sage accounts and comments about remote hearings, including deprecating telephone hearings, and extolling the merits of Zoom technology over CVP.

The comments gave rise to a number of sensible suggestions for direction and administrative hearings:

• Advocates should always have pre-hearing discussions and a post-hearing debrief with their clients.
• There should always be an advocates’ meeting ahead of a remote hearing. Full instructions should be provided beforehand to allow for discussion and the ironing out difficulties.
• The court should set up and host remote hearings, keeping advocates’ contact details on a database. Electronic bundles should be rigorously enforced so that everyone has the right papers; they should be fully searchable and always have a hyperlinked index.

Amongst the observations from the contributors, the following stood out:

From a legal adviser – ‘There is significantly less time wasted (waiting around at court for the hearing to start —sometimes all day) and less travel time (all parties on our cases are an hour away from the court centre)—advocates are more focused and prepared.’

From a Family Court adviser – ‘Having a scheduled time has been really beneficial. On an average day attending court in person I could be waiting several hours to go in, whereas with this system the hearing starts and finishes in a timely manner allowing me to make other arrangements.’ ‘I feel that remote hearings could be utilised in the future in terms of case management  and direction hearings, saving precious financial resource, time, reduction in unnecessary travel, impact upon the environment, and may also free up valuable court time.’

From a solicitor – ‘My team have welcomed the efficient appropriate use of remote hearings and would make a plea for this to be considered more widely when we assume normal ways of working.’

What impressed from the report was that courts should use video hearings rather than connecting by telephone (as still so often happens by default), as they are much simpler to arrange with a link to click rather than the judge having to dial everyone in. It seems strange that this advice at least has not been heeded to date.

Six months down the line we are at the point where we should be getting our remote hearings absolutely right. The technology we use should be seamless. Given the report findings, importantly we should be investing in a long-term future, both on the personal level in our own dedicated space, and on the judicial level using the right technology.

I am doing my bit, as for my forthcoming birthday, my partner Stephanie has agreed to buy me a partition screen for use in my study. Paired with a condenser microphone, I am now fully ready for the next pandemic wave.

What steps are you taking, and if you are not, why ignore the writing on the wall?

Open letter to Lord Chancellor, the Right Honourable Robert Buckland QC MP and the Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon.

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Red tape and remote hearings

A post for fellow legal professionals dealing with digital technology, unnecessary bureaucracy and legal red tape

“I would treat it as you would a path through the woods. You must follow it certainly so as to reach your end. But you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches, else you will find yourself lost in thickets and brambles”. The Rt Hon Lord Denning, Master of the Rolls.

On 7 February 2016 and 12 December 2019 I wrote two pieces about the forms lawyers are required to complete to get paid for publicly funded family care work. I am pleased to report that one effect of Covid-19 and remote hearings is that the ludicrous use of Form 506 (that required a judge’s signature to authenticate the work that had been undertaken in a court on a specified date) has been suspended.

My complaint had always been that completing the form, including getting the judge’s approval sometimes after they had left the building, took an inordinate amount of time for next-to-no purpose. All that was needed was a simple paragraph in an approved order saying who had attended court, how long they had been there, and whether there were circumstances to uplift their payment. It seems strange that it took a pandemic to rid us of this burden.

But the job of streamlining administration has not concluded. The Legal Aid Board apparently still require copies of the advocates’ instructions to attend court, and the advocates’ notes of what happened in the hearing. My question is why?

I am fairly sure that reading a copy of my instructions and attendance note is hardly informative of anything to anyone other than the solicitor who instructs me or our lay client. As an advocate must ‘attend court’, and is recorded in the order as having done so, I can’t see what either of these two documents can add to the information the Legal Aid Board already has. The only time that questions are asked of them is when they have not been sent. Are they ever read?

Now I don’t know how many clerks are employed by the Legal Aid Board to process this work, but in any other area of endeavour, this task would have been automated by making court orders digitally accessible to the Board. Then all that would be needed would be a pre-approved digital request from the barristers’ clerk, setting out the case number, court, date, and name of the advocate, together with a note of uplifts sought. The request could be spot-checked and authenticated against the online court order.

Whilst complaining about court administration, let me raise the issue of remote hearing platforms.

Although we developed our remote skills with the almost flawless ZOOM (launched in 2016), the preferred platform for court hearings is CVP (the premature baby due to be born in 2022). And the choice has left us all sitting in an NICU with nothing but hope in our hearts.

Significantly, court microphones access the system at a different audio level from remote microphones – the former providing a whisper, compared with the ear-deafening roar from remote participants. Additionally, we have the absurd scene of court cleaners attempting to de-virus aerosol particles from stem microphone foam covers.

Now, correct me if I am mistaken, but weren’t throat microphones first developed in 1934 by aviator Wiley Post, later to be deployed by German Luftwaffe pilots and panzer crews? So why aren’t similar simple devices available to be clipped beneath the lapel of witnesses and advocates in 21st century courts? If the right systems and appropriate technology was used by courts, would not the cost be recovered in weeks from timely hearings?

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Prepare now for the next pandemic

A post about viruses, and our need to anticipate the next deadly one .

In a Guangdong or Yunnan cave – canopies of trees on the Malay Kinabatangan River – in one of innumerable Amazon forest species – or in a laboratory somewhere near you – it lays dormant. Every place where man interacts other species sets a risk for new viruses to transfer.

There are 1,740,330 known species of vertebrates, invertebrates, plants, lichens, mushrooms, and brown algae, all of which contain viruses. Between 631,000 and 827,000 of these known species have the ability to infect people. Additionally there are innumerable viruses of bacteria, archaea, and other single-celled organisms which could, given time, transfer. Currently 264 viruses are identified. On best estimates of total world-wide viruses, this leaves 99.96 percent of yet unknown viruses that can pose potential risk to humans.

Enough of the science, for that is not the purpose of this post. Given our current ‘rehearsal’ with Covid-19, I suggest that now is the perfect time to prepare the world for the next pandemic. Whilst it may be unrealistic to imagine that we can interrupt human contact with other species, daily we are learning about the risks and solutions concerning human-to-human transfer when a virus springs across species. Epidemiologists, virologists, biologists, doctors and politicians cannot offer all of the solutions. Shouldn’t we ready ourselves for a return pandemic?

My legal colleagues tell me that lockdown has been an awful experience for them. They ‘can’t wait to return to normal’. But what if their new normal is momentary?

Let us start by reviewing the basis of how the courts operate; and how we work with them.

How courts operate?

Let’s face it, whilst our system of courts has served us tolerably well over generations of lawyers, it is far from perfect. Our courts emerged from the Royal Court from which the monarch’s appointed judges visited circuit to dispense local justice. Now our evolved system of court buildings and centres is precisely the thing that holds us back. These cannot be virus-proofed, and do not have capacity. Judges are overworked to breaking point. Thousands of litigants and their lawyers spend hour after hour travelling to and from court centres, waiting in queues for cases to be called, and barely understanding the technical nature of an interlocutory process. And they are expensive.

A significant issue is that Judges are not spending their time judging, but use inordinate amounts of their time as case administrators. Daily we see judges checking the wheels of a case, plugging a puncture or changing a tyre whilst litigants attend silently bemused. Interim administrative ‘hearings’ are fine if you can tolerate slow-moving, unpressured justice. Judges should be freed to judge; and case administrators should administer under their direction on line. This has been shown to work in magistrates courts, where the court legal adviser takes responsibility for much case management. Courtrooms should be kept for determination, rather than administration – as a place where contested points can be adjudicated, findings are made and cases resolved.

How we work?

First step, we should abolish email as a method of professional communication. Without automatic filtering into files, huge numbers of emails from disparate sources on wholly different topics gather randomly in our ‘inbox’. Take an email-break for a week and see what results!

Hand-in-hand with the abolition of emails, comes removal of the ’email attachment’. What better way to maintain confusion than to click important documents to emails that habitually disappear in a flood of messages?

Urgently, we need all inter parte communication concerning a particular case to stay within that case, so that it is visible to all involved, properly shared, accountable and auditable. We have the technology to do this; we simply have not bothered to do it.

Finally, instead of fighting the technology of remote working, remote hearings and administrative processes, we should be developing them for the next pandemic. Every transition is difficult and fraught with challenges in the early stages. Remember how you felt about digital files, and your initial insistence on bundles with pages, flags and felt-tipped highlights? Even before that, recall how stressful were your early months of practice in getting to grips with the ‘new job’ of solicitor, barrister or judge.

The present problems arising from remote working are simply transitory issues awaiting our experience and solutions. Now, isn’t that our responsibility as we prepare for our new future normal?

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WEBS – remote access to courts

A post to address safe ways to connect to courts

Task

To provide a bespoke stand-alone, private, safe space; comprising in-built communication technology to enable remote confidential access to courts for advocates, jurors and witness evidence.

Coronavirus has required the Court Service to re-evaluate the way in which hearings are to be conducted, involving remote access to reduce the spread of infection.

Whilst immediate, short-terms solutions are being sought, it is probable that longer-term provision may be necessary, or with positive experience from remote access, desired.

This post presents an option to facilitate short-to-long-term remote access.

What are WEBS?

Witness evidence booths provide a remotely controlled, soundproof, dedicated facility for access to justice.

Primarily as a solution for witness evidence, they may also be used by advocates who have been authorised to connect to a court remotely.

Due to simple design and portability, they may be deployed temporarily or permanently at a variety of locations; including solicitors offices, barristers chambers or within court buildings. They may also be transported to remote locations, such as hospitals, care homes, and detention centres.

Construction

WEBS are affordable prefabricated modular sound-isolation office pods or acoustic mini-booths, that require minimal installation time or expertise.

Here are some examples of booths that are currently in production:

Demvox – see the video here;   Tourgocases; Kube; Advanced Acoustics

Internally

Each pre-built booth would contain flat screen, no-touch technology to enable remote connection to courts, remote adjustable video, audio, sound enhancement for disability, and providing remote connection to an interpreter.

Effectively they would provide ‘a witness box’ at the remote location.

Air conditioning of the booth is via secure flexible externally ventilated hose, removing the possibility of recycled infection (see the video at 3.19 time elapsed).

Virus cleaning during and after use would also be effected remotely, with the use of far-UVC light (207 to 222 nm) technology – see the links below:

Nature.com   and   Medcram.com at 5.08 elapsed.

Product requirement and production timescale

1. Office or court location.
2. Standard prefabricated, internally-lit modular booth.
3. Flat screen, modem-to-web, remote-adjustable camera, fixed-point directional speakers and hearing loop.
4. Far UVC lamp operated remotely.
5. Remote auto-connection for CVP; or Chrome Remote Desktop
6. Remote locking / smartphone digital ‘unlock’ link.

Modular construction would enable upgrades and repairs of the prototype. Production timescale – bearing in mind that WEBS comprise existing products and technology, production of a prototype could be achieved within weeks.

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Covid-60 and beyond

A retrospective post from 2060, looking back over 40 years of remote hearings

It was never going to be easy to make the transition back from normal ‘remote’, to ‘physically attended’ hearings. Looking back over the last 40 years to 2020, it seems that we have always conducted legal hearings at distance.

95 years ago in pre-pandemic 1965, British virologist David Tyrrell and Margaret Bynoe found that they could passage a virus named B814 – a Coronavirus. It was found in human embryonic tracheal organ cultures obtained from the respiratory tract of an adult with a common cold. Fast forward to 2020 when the first of the ‘world-killing Coronaviruses’, Covid-19 forced a revolutionary change on the legal landscape. That was the moment when our 2060 system of online hearings was incepted – and changed the way we work, it seemed, for ever.

Over 40 years since 2020 we have perfected our digital legal resolution process. Historical accounts speak of fanciful attempts to replicate the ‘real oral hearing’ with a form of video (a two dimensional picture with sound) called ‘Skype’, Zoom and a curious, unworkable platform called ‘CVP’. In the early days some hearings surprisingly were sometimes conducted by telephone from Judge’s and lawyer’s bedrooms.

Work in the courts backed up, and lawyers sat idle, unable to communicate. Some, it is said, went back to writing letters to each other by email. It didn’t take long before the establishment realised that the systems they had adopted amounted to a sticking plaster over a deeper wound.

Ian Burnett, Lord Chief Justice of England (quaintly named ‘Baron Burnett of Malden’) got his team of judges together to come up with a plan. Unsurprisingly, and probably as a result of their advancing years, they did not have our current vision. Video hearings continued to stagger on with dropped lines and crackly sound, the judges pretending that their hearings were real. The legal language stayed the same, peppered by ‘Your Honour’, and ‘my learned friend’ before these terms were banned.

In the intervening 40 years, the judiciary realised that they could not go on as they were, and new online systems were considered. It was about this period that an elderly, unknown barrister in the North of England proposed what was to become our current digital court process. In public family law every intervention could be managed digitally online. ‘Interim hearings’ were abolished except where evidence was needed. The remainder were managed remotely with judges organising cases and communicating through a digital template. The system was revolutionary – it reduced the number of lawyers, cut costs dramatically and speeded up the process. Soon courts became comfortable with digital submissions and pre-recorded audio clips from lay parties. Buildings were sold-off, robes sent to online museums, and parties attended new modular hearing booths to give evidence. The rest was history.

Yesterday, at our virtual, four-dimensional bar mess, some of the ‘seventh decade practitioners’ reminisced about those changing years. They concluded that it would be impossible to return to the old ways – even absent Coronavirus-60. ‘It would be too time-consuming, too stressful, it would require too many breaks, and involve much waiting to get on’. Even as a historical experiment, they agreed, it was never going to be easy to turn back the clock!

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Under the spotlight

A post in which we examine our video hearing skills

Back in the 1980’s I was invited to the old BBC Television Centre at Shepherds Bush for an interview relating access to legal services for the deaf. Undaunted, I arrived on the set with naive enthusiasm. The spotlights lit. On the monitor I became the centre of a hundred thousand universes. “Pull yourself together”, I whispered to my inner self, “it’s only a camera”.

But it wasn’t just a camera. It was a new seascape for which I was little prepared by my experience in a land-locked courtroom. And it is this ‘change of focus’ – from courtroom to camera – that I wish to address in this post.

Over hundreds of years, advocates have developed particular courtroom skills. In my early days at the Bar I remember accompanying the famous Victor Durand QC. It was not his face, nor his voice; but his personality that silenced the room. He commanded all before him by his sheer presence.

Video hearings are so unlike a courtroom experience that I question whether the two should be compared. Flat representation replaces the richness of third dimension. Absent – physical interactions; removed – immediacy; and vanished the last vestige of democratic equality of the live hearing. Cameras switch remotely to pinpoint a speaker. Attention is directed and confined. Reactions are concealed. Emotion is dissolved.

Now I am not suggesting that the answer is stage school, but bearing in mind the indeterminate duration of the virus, we should do something to ready ourselves: after all, in this interregnum we have time to prepare for change.

And we must treat it seriously. In my previous post I questioned the suggestion that video hearings are here for a determinate pragmatic ‘virus moment’. For interlocutory and administrative hearings, figures will eventually reveal significant savings in time and cost, with conveniences to judges, solicitors and clients that outweigh inconvenience (and loss of work) to counsel. Indeed, gazing into the future, there seems to be little reason why the use of counsel should not largely revert, as formerly, to attendance at contested hearings.

But in the meantime, we are centre-stage. We are the face on the monitor. And we have to master the new skills that video hearings demand. There are reports of some video hearings being a mess. The duty of both judges and counsel is to reverse this. The task is not simply mastery of the technology, but being prepared to sail a new seascape – understanding what has gone, perhaps for ever; and what has replaced it.

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Return to normal

A post addressing potential legacies from Covid-19

Question: when Covid-19 has peaked, will we return to normal?

The other day I was dismayed when telephone conferencing with lawyer colleagues.

First, we made the mistake of a costly group call – hanging on to a fuzzy telephone call when we could have Skyped or Zoomed for free.  

Second, when planning for future ‘appointments’ in May, we were still speaking of face-to-face hearings as ‘a convenient and safe way to conduct a case’, ignoring all that we have learned from the progress of the virus.

Perhaps, as the virus fades, we may return to doing things as we ever have – after all, in some courts barristers still wear wigs. But doesn’t the current Corona-challenge present an opportunity for change? Aren’t we at a similar point to that when digital files replaced voluminous paper bundles?

For forty years I have stood before judges (and juries) to argue a point and persuade with words. But as time progressed, the exclusively oral tradition started to shrink. Information was ever more captured by documentation, and interim ‘attended hearings’ became more like administrative exercises. Imperceptibly, voices gave way to digital documents.

In earlier posts I raised the idea that case management in public law family cases could transition online, leaving more resources for final hearings. Intelligent software (already used in the commercial setting) with input and oversight from the judge, could keep a case on track more efficiently, more expeditiously, and less expensively than relying on a group of advocates periodically (and sometimes randomly) arriving at court to argue their points of view.

Does it sound as if I am wanting to do lawyers out of a job? Perhaps to a degree. An online system accompanied by occasional video hearings would be less labour intensive and require fewer lawyers. Solicitors having conduct of a case, and their barristers, would be expected (and paid) to help manage it by preparing documents on time, putting forward their requests and wishes, and raising objections should they feel that the judge had got it wrong. This could include taking instructions by video link. It would represent a sea-change from the old ways to the new. Gone, the early commute, the last-minute rush, the conference at the door of the court. In its place could be a tuned process that would take a case seamlessly from start – to contested hearing.

As lawyers perhaps we need to examine our skill sets and our comfort zones – to improve the former, whilst escaping the latter?

Which brings me back to the video hearing. If they are to be deemed ‘fair access to justice’, why, when Covid-19 recedes, should we expect to regress to our old ways?

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Opportunities and video hearings

A post for fellow professionals and anybody interested in video hearings 

Open letter to my fellow barristers

Dear fellow members of the Bar,

Since alerted to a Covid-19 issue, today you will have received messages for the Ministry of Justice, the Lord Chief Justice, the Bar Council, the Chair of the Bar, the Leader of the North Eastern Circuit, the Designated Judges of various court centres, Cleveland & Durham LFJB and your Head of Chambers. Your email box is bursting.

You may also have received a copy of my ‘I told you so’ blog, just to compound your irritation.

All give the same message – one of a revolution in our working practices. Here, I want to address the opportunities arising from Covid-19. Whilst the opportunities cannot dwarf the suffering, a failure to seize them would simply serve to compound our losses. Already some positive changes have occurred as the virus has spread. Air quality has apparently improved, and the canals of Venice lagoon are teaming with fish from the sea rather than the oil of liners.

In this post, I want to focus on one of our working practices as lawyers: face-to-face hearings. They are to be replaced by agenda driven video meetings. Now it seems that legal hearings are to be online.

Provisional checklist for professional presentation in video hearings

1. Prepare a designated working space in your home. Ensure that it is safe and free from intrusion. The area should be child, noise, distraction and pet free.
2. Prepare appropriate video lighting and backdrop. This must be neutral. Consider using a screen. Consider fabrics to change your sound-scape and deaden extraneous noise. Test these before you connect.
3. Ensure your computer camera is adequate for video hearings. Most desk-top, laptop and iPad cameras are just adequate for this purpose. Whatever you use will send a message about the quality of your kit. Remember, if you are not looking at your camera, you are not looking at the person you are speaking to.
4. Definitely upgrade your audio. Your computer/laptop’s internal microphone is not adequate. It will produce fuzzy and buzzy feedback. I have recently bought an UHURU UM-910 condenser microphone which combines quality, portability and price. I would recommend it.
5. Practice with your video and audio settings. Shrink your received video and move it to the top of the screen close to your camera. When speaking, look at a point 5cms below your camera so it appears as if you are looking at the camera. Work out your best position and distance from the microphone and whether you need a pop filter. An earphone will avoid microphone feedback. Ensure that viewers are seeing your face and not looking at your microphone.
6. Pay attention to your unconscious habits. Diluted in court, they stand out prominently on video and audio.
7. Dress for video, avoiding distracting jewelry or anything too distinctive. Items that may work in court may not be right for a cameo shot. Remember that you may need to move during a hearing and your whole body (and feet) may be visible at some point. Select a preferred camera/body angle and stick to it as an identifying feature.
8. Before you start, check your wifi is adequate, up-to-speed and that your video and microphone settings are ‘default’. Now may be the right time to upgrade to fibre.
9. Enable mirror effect on video so that your right hand shows as right, and left as left.
10. Close all other unnecessary applications. This will give priority to your video quality.
11. Mute sound before you join the hearing. This allows you to check that you can hear others before you speak. Don’t forget to turn it back on.
12. Set audio to ‘auto-adjust’ on your microphone. This will reduce fade and minimise explosive noise.
13. Do not move your chair. Rolling chairs make a lot of noise.
14. Keep a carafe of water and glass to hand. Ensure that you can check the time at all times.
15. Practice with a friend before you try it for real.

Please add any suggestions in the comments box. That way we may achieve perfection.

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Coronavirus – video conferences and hearings

A post for those new to video conferencing, and looking at online working methods

As of Saturday 14 March 2020, 35,000 people have been tested for the virus in the UK with 1140 positive outcomes. 342 new cases were announced in the last 24 hours. To our knowledge one floor at a regional court centre has already been subjected to a precautionary virus deep-clean.

England’s chief medical officer, Professor Chris Whitty, said the peak of the UK outbreak is most likely still 10 to 14 weeks away, namely May to mid June. This begs the question, what is to happen with courts and legal services in the meantime?

Video conferencing

In February I publicly examined the need for face-to-face meetings with solicitors and clients. At the best of times, these are time-consuming, and rarely cost effective for the client or the practitioner. Now there is the added risk of virus infection or transmission.

The options of audio and video conferences should be regarded as the future normal -using such applications such as Zoom, WebEx,  Videocentric, Clickmeeting  and GoToMeeting.

Advantages of remote conferencing are:

• Any-time conferencing to suit the client/s
• Travel free/time-saving for all participants
• Connecting multiple locations
• You control your conferencing environment
• Conference recording facility
• Cost-free cancellation and re-scheduling

Video conferencing for out of town solicitors can save a 2 hour round-trip for them and their clients. But is a video conference effective? Here are some common myths put into perspective.

Myth: It’s too expensive. This was the case a few years ago, but now you can sign up to a service contract for just a very low monthly cost, with some services free of charge.

Myth: You need a server for infrastructure, call control and bridging. Not any more. No infrastructure is required, and a ‘pay per month license’ is a fraction of the cost of deploying video as an on-premise solution.

Myth: It won’t integrate with ‘Skype for Business’. Yes, it does, and very easily. There is no additional Microsoft licensing or extra servers required to integrate many services.

Myth: It won’t allow guest access for clients. Yes it does and more easily. Just ping your client the URL and they can join the conference from any PC, Mac, iPhone/iPad, Android Phone/Tablet, or using a browser like Chrome or Firefox with Web RTC technology.

Myth: It is not secure. Most systems provide complete security offering AES 128 encryption across all services.

Myth: You can’t stream and record the conference. You can now, and very easily and secure right from your own video portal.

Myth: You have to use a dedicated endpoint to launch a multipoint call. Simply invite all participants into your Virtual Meeting Room (VMR). You can do this from any device that has good Internet access, decent bandwidth, a camera, microphone and speakers.

Myth: It’s all too difficult to manage alongside all the other IT complexity. Not at all. Providers offer dedicated software portals to manage usage, reporting tools and launch calls. These are easy to use and come free with your license.

Myth: Quality is poor. Ten years ago this may have been the case, but now the quality of a call is exceptional.

Video hearings and the online template

Back in December 2018 I blogged about digital case management for the Family Court, in which I proposed ‘online digital case management’ to guide, remind and flag essential matters as they arise in family cases.

Using an online process, professionals could access and be guided by the same material uploaded to a single template. It would be updated with each new event, and contain automatic triggers that could require the parties to address issues, disclose information and problem-solve. With continuous access to the template, the judge would be in a position to review the progress of each case at any time, using totally up-to-date information, and could give further directions on the template as to what the judge wanted parties to do.

If a party in the case had a problem with a direction or its timing, they could request a review. Most importantly, where the judge’s directions were not complied with, the failure could be flagged and remedied.

All of this could be achieved safely without an actual interim hearing. However, should a judge or one of the parties wish to convene a hearing, why not simply use existing technology to video conference? Preceded by a detailed agenda and notification of issues, participants could easily dial in and participate in the conference that the judge would control, checking with professionals and parties in turn what directions were agreed, and ensuring that everyone had been heard. Each video hearing would be recorded.

Leaving aside the remedy to the serious issues raised by Covid-19, interim video hearings would free court time and resources for contested ‘final hearings’ or other hearings at which evidence was to be taken. This way, I envisage a situation where, save in difficult and exceptional cases, the whole case management for a family case could be handled remotely.

Some practitioners might protest at this development. Arguments (already raised in relation to digital bundles) might be that such practices are hard to handle, requiring a different mindset, changing working practices and calling for new skills. These are ‘Luddite’ arguments (see my blog from 7 June 2012). Whilst removing some of the ‘chemistry’ of a live hearing, implementation would destroy none of the safeguards for justice. New opportunities for swifter, easier, less stressful litigation would open up,  rather than pouring vast funds into traditional, sometimes pointless –  and now potentially dangerous hearings.

This way we could embrace exciting new working practices that could see us through the Coronavirus challenges.

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Crisis in Policing?

A post for those interested in the incidents of crime and how it is recorded 

Investigation of crime is now centre stage this week following publication of the HMICFRS report on policing across England and Wales.

Its author, H M Inspector of Constabulary Matt Parr, finds many positives in recent policing, but identifies a number of troubling concerns.

In this blog I want to consider one of them –  the issue of detection and prevention of crime.

With a noticeable reduction in police investigation and detection of crime, public confidence in policing diminishes. It produces a void, in which the public is reluctant to report crimes, anticipating an unsympathetic, non-proactive response from police.

Published statistics show that only 4.2% of domestic burglaries result in charges. Additionally, there are some strikingly low figures about car crime resolution, says Matt Parr, (3.5% of motor vehicle thefts resulting in charges) “meaning most of the public simply give up reporting it because the chances of anything positive happening are so slim”. “The public has rumbled that the police capacity to deal with this is extremely limited”.

The likelihood of the police bringing someone to justice following a criminal investigation is decreasing. In England and Wales, a suspect was charged in 7.8 percent of recorded crimes last year, down from 9.1 percent the year before. “Forces do not do enough to make progress with cases using alternative sources of evidence”, says Parr, “and there is limited understanding as to why so many victims seem to be losing faith in the criminal justice system”.

He goes on to add, “the proportion of victims of crime who are unwilling to support a prosecution has nearly doubled from 13.2% to 22.6% in the same period, raising doubts over how long society will tolerate a situation where, for some types of crime, a suspect was charged in less than 4% of cases”. “If you are the subject of a minor burglary or minor assault or car crime, I think people have now got to the stage where their expectations are low and the police live down to those expectations because they simply don’t have the capacity to deal with it”.

According to the report, “ten forces need to improve their understanding of the outcomes of their investigations to ensure they are effectively pursuing justice on behalf of victims. Overall, there are stark differences in the investigation a victim of crime will receive, depending on the police force responsible for investigating it. This variation has many causes, so forces need to understand and address this divergence in the experiences of victims of crime”.

It seems that matters are further exacerbated by a failure of courts to apply sufficient deterrent sanctions to offenders. In forces such as Durham where police response, investigation and detection are rated as ‘excellent’, the public complains that courts no longer impose adequate sentences. Whilst restorative justice outcomes are available and increasingly popular for juvenile offenders, the limited number of sentencing options generally results in a miss-match between the offence and the public’s view of justice.

Failures of our police and criminal justice systems will result an increase in crime and the risk of public interventions in place of police enforcement. This is precisely what happened when policing lost community support in Northern Ireland. We cannot afford the same to happen here. Perhaps policing and criminal justice in England and Wales should be given fresh priority before the public loses its confidence in organisations for which it pays and to which it delegates powers?

Stephen Twist was formerly a police officer, criminal barrister and recently a restorative justice practitioner with the Youth Offending Panel

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Fill in a Form

A post for fellow legal professionals, and everyone who dislikes bureaucracy

“I would treat it as you would a path through the woods. You must follow it certainly so as to reach your end. But you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches, else you will find yourself lost in thickets and brambles”.

The Rt Hon Lord Denning, Master of the Rolls.

Today, as I approach the Combined Court Centre at Newcastle Upon Tyne, ahead up the steps from Broad Chare, snakes a line of court users – parties, witnesses, jurors, social workers and others. They are queuing to pass through security.

I have a phone app that will supposedly permit instant professional access to the court, so I cross the queue to join a group of phone-holding advocates. In turn, we press a large green button on the wall and present our phone app for hand-held scanning of our image. If the pictures match, we are ushered in. If not, it is back to the long queue to wait our turn. (Interestingly, whilst authorising admittance, the single-purpose app has no role on exit!)

Today, I am listed before a district judge, so I take the long corridor that leads to the hearing rooms. Along the way, every seat is taken, every corner pressed with litigants. There I join another queue.  The reclusive clerk will emerge after taking a form to a judge, demand my case number, the number of the court, my place in the list, then copy my name to a form on a clip board. I will retreat to be swallowed up in the throng.

But, before I do so, I must pick up another form, for on this form I am to write the names and status of each advocate in my case. This will be handed to the judge so that they know who I am and why I am are there.

Later, after the ordeal of visual recognition and multiple form-filling, I will complete the most important form – one to ensure that I am paid. And for this purpose we require a further form (numbered 506) that has been signed and certified on the day by the judge.

Is it just me that is frustrated and dismayed by the Twentieth Century approach to present day problem; a single case that requires five separate identity-establishing procedures? Contrast entry to the health club that is effected (and billed) from a camera image taken on approach to a turnstile. On the right day, a happy birthday tune is even played to welcome the passing of another year.

CourtServe.net contains the live listings for all of the nation’s courts. But that is it: a twenty year old, one-dimensional resource that nobody has thought to update and extend.

Imagine this. Before arriving at court we simply log online to our CourtServe case listing. There, we record our name and whom we represent. Automatically this links to our ‘online diaries’ to authenticate our attendance. If we need time for discussions, we can note the fact. When the list of advocates is complete, our case may be digitally called for hearing before a well-informed judge.

Court security, case management, and professional fee payment all in one place. Smile and ignore; or discuss?

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Part-time practice: a 40 year perspective

A post for everyone contemplating part-time work, especially barristers

It is December 1979, Queen Elizabeth Building, Middle Temple, England. I pass the door of a frowning Ronald Butler, Head Clerk, as he leans back against his desk, manicured fingernails resting on its polished edges, his light grey suit perfectly pressed.

“It’s your practice, Mr H”, he is announcing to one of the junior practitioners, “I can’t stop you from taking time off; but it’s your practice”.

It was the ‘but’ word that registered in my young barrister’s mind that day. The implied admonishment; the veiled threat. Mr H looked concerned. He knew that it was his choice, but that his choice would have consequences!

December 2019: 40 years have passed and I remain in practice; although those that know me will remember that in 2007 I did the unthinkable, disobeying the ‘but’ rule and everything that I had learned from Mr Butler’s comment. I took a six month sabbatical. And in the subsequent years, I have repeated the break, albeit for a shorter period of time.

Have the consequences of being away from practice lived up to Ron Butler’s warning to Mr H, and if not, what has changed?

Back in Ronald Butler’s days the idea of a sabbatical (or protracted maternity leave) was a distant fantasy. Then the Bar was concerned with survival – as was each competing individual barrister. Court jurisdiction was changing, tribunals emerging, alternative dispute resolution was on the horizon. Each development was regarded as a threat. Solicitors were securing rights of audience in the higher courts, and the Bar was toying with direct access. Individual barristers felt that they were fighting for survival.

Now, with larger, successful, often sprawling chambers, we operate in a more collective way. Gone are the days when the ‘personal practice’ ruled. We are ‘team members’. And whilst expected to pull our weight, absences are less vital in importance.

As I approach my 41st year at the Bar, I find that part-time practice can work. The secret to its success is to manage your diary (in my case by blocking out the weeks or months that I intend to be away), and of course, to retain an empathetic relationship with your clerk.

Mr Butler would have scowled had he read this blog. Fortunately these days we value the concept of wellbeing at the Bar, and our personal survival is less dependent on unrelenting commitment, and more to do with how we choose to manage our practices with our lives.

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Barrister bag boys

A post to ‘tick off’ my fellow professionals

It is Monday, 0930 hrs, Teesside Combined Court Centre. A posse of barristers has arrived, jostling for a place at the table that extends the full length of the robing area. Beyond in the advocates’ lounge, the suffused sounds of voices declaring, ‘it’s too late to amend the indictment’, ‘our Part 36 offer is still open’, and ‘mum and dad want the children returned to their care immediately’.

But my attention is taken, not by the voices afar, but by a sea of suitcases right before me.

I place my shoulder bag gently to the floor and reach in, beyond my sandwich, to grasp the ipad that contains over 1500 pages of encrypted documents in twelve files for this week’s case. And then I look for somewhere to rest it whilst I push my bag out of public reach.

The suitcase array is unrelenting. Everywhere, piled wheel-by-handle is a sea of luggage, black, brown, pink, grey. One early arrival has managed to find a tiny spot for a wig tin, but otherwise the table resembles a bay full of sea lions, where interference with one bag will result in a cascade of others.

I feel an overwhelming momentary sense of hostility to the bag people. “Any case left on the table will be confiscated, handed to court administration, and the content submitted to the Bar Standards Board”, I announce with determined frustration.

Faces look confused. “I have put my case on the table for fourteen years”, says a resident Queen’s Counsel. “And for thirty years I have been irritated by it”, I reply adding “you do not own this space”, and thinking ‘what, apart from my dignity, have I to lose?’

I speculate if at home, Mrs Queen’s Counsel would be forgiving should Mr QC deposit the wheeled case on their dining table? Somehow I think that different, selfish rules have evolved for the robing area, rules that prioritise the convenience of the individual, rather than respecting collective needs.

Of course I accept that I am the dinosaur; that my time has been and gone, that my views are anachronistic. Perhaps I should shuffle off with my ipad and sandwich to another spacious place where my complaints would fall on the wind.

But for now, I am still here, and ready to continue my crusade against the bag people!

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Facial recognition

A post addressing the thorny issue of facial recognition: liberties v responsibilities

Are you one of those talented individuals whose brain temporal lobe is equipped with an enhanced capacity to recognise faces? Since 2015, the Metropolitan Police has employed a specialist squad of about 200 ‘super recognisers’. After after trawling through nearly 5,000 hours of Salisbury CCTV footage two of them were able to identify the attackers of Sergei and Yulia Skripal. 

Using recognition skills has been a part of the armoury of detection since Robert Peel established Britain’s first police service in 1829. But what of the enhanced use of technology? How do you feel about this? 

In September 2019 Ed Bridges and ‘Liberty’ lost their challenge to South Wales Police concerning the use of facial recognition technology. The Divisional Court (Haddon-Cave LJ and Swift J) held that both as to purpose and method, automated facial recognition was compliant with current law, including the provisions of the Data Protection legislation. 

Whilst covert use of technology by the police is regulated by the Regulation of Investigatory Powers Act 2000, codes of practice, and ultimately supervised against the right to privacy by the courts, private use is developing just as CCTV did: minus statutory control, meaning that systems may be deployed without public oversight. 

Hannah Devlin’s excellent article in the Guardian (5 October 2019) addresses the use of facial recognition outside the home. It seems that for 3,000 GDP ‘Facewatch’ can provide off-the-shelf software and camera systems like the one used by its chairman, Simon Gordon, owner of Gordon’s Wine Bar in central London. With clever graphic processing units (GPUs) to conduct biometric identity comparisons, the software screens facial measurements at lightning speed to identify those within its database. 

Just how much of a concern is this to the ordinary, law abiding citizen who has nothing to hide? 

As a matter of principle, I have no issue with the use of facial recognition technology. Whether its purpose is to identify wanted criminals, missing persons, regulate entry to buildings, or simply track customers as they shop, I can see a host of benefits which outweigh its disadvantages. Already, many of us choose to display our identity through social media, including hundreds of photographs that track and broadcast our location, where we live, what we eat, where and for what we shop, and where we spend out leisure time. 

Recognition intrusion is nothing new, for up to the middle of the twentieth century, our movements were largely transparent by social necessity. School friends knew the background of their classmates, neighbours knew the jobs, movements and families of those in their town, and shopkeepers greeted their regular customers by name. 

Those simple, uncomplicated days may be a thing of the past, but recognition is still something that many seem to crave, and the rest of us appear to accept. Setting artificial limits on the use of technology based on a cult of privacy is perhaps the wrong way to progress?

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Supreme Court Judgment 24 September 2019: analysis

A post providing a guide to the Supreme Court judgment, and clarification of a few popular misconceptions.

The Supreme Court is unusual as a court. 

Most courts have a dual function: to find facts; and to apply those facts to the law as it understands it to be.

The Supreme Court, however,  is not on the whole constituted to be a ‘fact finder’, although sometimes it is necessary for it to make factual findings on the basis of evidence, as in this case. Its principal  purpose is to clarify existing laws and determine legal issues – to rule upon the extent of powers, the actions that are expressly allowed, those that are forbidden, and actions that are required to be undertaken in accordance with statute or established case law.

Put simply, when lower judges don’t know what to do, or might have got something wrong in interpreting the law, the Justices of the Supreme Court provide final clarification and binding determination, and thus guidance for UK judges. The process works on the premise that individuals can do anything that is not prohibited by law; but public bodies (including the government) may not do anything unless expressly permitted by law (my rather clumsy simplification).

The case brought by Gina Miller and others concerned the prorogation of Parliament by the executive (the government). The Supreme Court decided that there were four questions to be answered:

(1) Is the question of whether the Prime Minister’s advice to the Queen was lawful, justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

Let us take the first question. The word ‘justiciable’ means ‘properly a subject for determination by a court’. There is a strong argument that courts should not interfere in the political process. To do otherwise would take courts from ‘law appliers’ to ‘law makers’. Courts are legal interpreters, not legislators; that is the job of Parliament and those bodies to which Parliament has delegated law-making powers.

Prorogation of Parliament is a ‘prerogative power’: that is to say, a recognised common law power exercised by the Crown (in this case the government). Its exercise is dressed up as a decision requiring the Queen’s consent, but in reality the monarch is expected to follow the advice of her Prime Minister, as in this instance. 

A problem with prorogation is that it has the effect of removing government from Parliamentary supervision and accountability. It effectively ‘stops Parliament in its tracks’. This means that Parliament itself cannot interfere, stop, affect or determine the issue of prorogation. The very act of prorogation removes Parliament’s oversight. The Supreme Court took the view that, as Parliament itself could not supervise prorogation, it fell to be a matter to be regulated by the judges.

Before reaching a conclusion on the question of justiciability, the Supreme Court had to determine whether the present case brought by Gina Miller required it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice went beyond that limit; or whether it concerned the lawfulness of a particular exercise of the power within legal limits.

The Supreme Court considered this issue in relation to the paramountcy of protecting Parliamentary sovereignty. At paragraphs 42 and 43 of the written judgment, the court committed itself to the importance of this supremacy principle. This arguably forms the first important evaluative point of their decision. 

The Supreme Court clearly held that they had every right to interfere in the exercise of this power, and thus answered their first question. In effect this was not a difficult decision as their power to intervene was conceded by the Prime Minister’s own barrister.

In relation to questions 2 and 3, the court went on to find that this was not a normal prorogation of Parliament in the run-up to a Queen’s Speech. It held that this prorogation prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Such an interruption in the process of responsible government might not have mattered in some circumstances; but the court found that the circumstances here were quite exceptional due to the imminence of Brexit (para 57).

Whilst the court stated that they were not concerned with the Prime Minister’s motive in doing what he did, they were concerned with whether there was a reason for him to do it. Why did he need five weeks? So at this point the court considered the available documentation, including Nikki da Costa’s memoranda to the Prime Minister dated 15 & 23 August 2019, the Prime Minister’s handwritten comments on 16 August, and the Cabinet Minutes dated 28 August 2019..

“Most tellingly of all, the memorandum does not address the competing merits of going into recess and prorogation. It wrongly gives the impression that they are much the same. The Prime Minister’s reaction was to describe the September sitting as a “rigmarole”. Nowhere is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies; he has a constitutional responsibility, as we have explained in para 30 above” (para 60).

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful” (para 61).

That in effect decided the question of ‘lawfulness’ of prorogation. 

Finally, the Supreme Court turned to the question of what to do about it. 

The inevitable first consequence was a ‘declaration’ that the proroguing of Parliament on this occasion was unlawful. 

Here, it is vitally important to understand what the court means by the term ‘unlawful’, especially as commentary on this topic in the media is already misleading – confusing ‘unlawfulness’ with ‘illegality’.

‘Illegal’ means that an act is forbidden (proscribed) by a statute (for example, a crime). ‘Unlawful’ means that an act is not expressly authorised by law. The difference is more than semantic. Many acts performed or undertaken by public bodies are adjudged to be unlawful according to a subsequent court ruling. The difference between them is that acts which are illegal are acts that are expressly forbidden by clear law. This action by the Prime Minister was not one of those.

The next question was as to the legal consequence of an ‘unlawful decision’. Gina Miller called for it to be declared null and void, and this brought into play the Bill of Rights 1688. 

Here the court involved itself in a little legal football. Was prorogation ‘a proceeding in Parliament’, in which case the court’s intervention with it would itself be unlawful? The court concluded that, as prorogation took place in the House of Lords in the presence of members of both Houses, it could not sensibly be called a proceeding in Parliament, as it was not a decision of either House. Thus, this prorogation was of no effect, and the clock should be turned back as if it had never been sought.

That concluded the Supreme Court’s deliberation and judgment. Of course it does not finalise the debate, but initiates another.

Here, perhaps, are some points to be considered over the next weeks and months.

1. Has the intervention of the courts assisted constitutional clarity, or complicated it?
2. In its focus on the paramountcy of Parliamentary sovereignty, has the Supreme Court left itself a hostage to fortune in relation to future issues involving the UK Parliament’s forfeiture of sovereignty? 
3. How will the public respond to the fact that the courts have supported an unpopular parliament that many feel has failed them?
4. Will Gina Miller and Joanna Cherry’s applications to the courts, and the court’s ready intervention in this political/constitutional issue politicise future appointments to the Supreme Court, as it has with Brett Kavanaugh in the USA?

 

Click to access uksc-2019-0192-judgment.pdf

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Freddie Starr: the Jury’s verdict

A post offering a tribute to the late Freddie Starr, and a little known insight into a special day of his life

Freddie, what year was it when we did that case together? Definitely in the 1990’s from what I remember. Did you keep any of the press cuttings? Might you have taken them with you to Spain?

Gas lights, still present in the Temple, have just been lit outside.  We are sitting in the ground floor corner room at 5 Essex Court, Middle Temple, London. The walls are a coloured deep dark crimson. A bevelled mirror above the fireplace reverses the Weekly Law Reports opposite and in gathering gloom, light reflects from mantelpiece lamps.

Across from my partners desk sits the accused. There is nothing memorable about his demeanour or appearance. It is his crimes that catch attention. ‘Kidnapping and torture’.

When the solicitor had called by to tell me about the case I could hardly believe the challenge. Statements revealed witness after witness that had seen or heard something, but it was not until reading the victim’s account that the daunting nature of the task dawned. This was truly a case that hinged upon the voracity of his evidence.

A few months later we find ourselves in the Crown Court at Wakefield, the delightful and talented Colin Harvey of counsel is prosecuting, His Honour Judge Lightfoot is presiding. Michael Lightfoot was the type of judge that you simply did not want when defending the guilty or the innocent. His background, and probably DNA were steeped in prosecution. He was a medieval style judge whose hand would stray to his black cap, fingering its fringe as he passed sentence.

The prosecution completed its case with a self-satisfied flourish. Their witnesses had come up to proof, saying just the right things in the right order to seal a water-tight case against my client. Despite my challenges and imputations, the complainant had remained resolute and unmoving. Two hours later, my client too had finished his evidence; but by this stage the jury appeared to have lost interest in his assertions of innocence.

What Judge Lightfoot did not know (for in those days the judges were not forewarned) was the identity of the witness who my client and I were intent upon calling next. In the years before the Criminal Justice Act 2003 the rules relating to the admissibility of the complainant’s character were governed by a little known case dating back to the 1860’s. With a bow to the bench I informed the court of my wish to call independent evidence to demonstrate that the complainant was of dubious character, upon whose evidence it would be foolish to rely.

Judge Lightfoot’s face turned a darker shade of puce when I produced copies of the Court of Appeal judgment that bound his discretion. “Right, Mr Twist, it seems I cannot stop you, so let’s get on with it, call your witness”, he retorted.

Moments later, my instructing solicitor returned from the private witness room to announce that our witness was no longer there. A note on the table read, “Have gone to the airport to board my plane for Spain”.

With urgency a motorcyclist was dispatched to the airfield, cutting to the runway just before he was to depart, and the witness was persuaded to return.

“Your Honour, members of the jury, I call Freddie Starr to give evidence”.

Freddie Starr did not know my client, but had known the complainant of old. It seems they had had their issues; but Freddie had retained his trump card – evidence of the complainant’s malfeasance. With a theatrical wave and a smile to the jury, he delivered it like a knife to the complainant’s heart. The prosecution’s case crumbled. After speeches, the jury retired for five minutes before returning to declare their ‘Not Guilty’ verdicts.

Judge Lightfoot was livid. “Mr Twist, your witness kept us waiting, so I propose to sentence him instead – for contempt of court. The jury must stay to see what I propose to do with him”. “Take a few minutes to consult if you wish”.

Freddie Starr, who sipped from a clear bottle of liquid, appeared distraught. “Just say you are sorry, Freddie, and the judge may back down”, I advised.

We returned to the court. The jury looked on with anticipation. “Bring in the witness”, ordered Judge Lightfoot.

Instead of making his way to the witness box, Freddie Starr decided on a diversion. Trotting to a position directly below the Judge’s bench, there he fell to one knee.

“Please forgive me”, he pleaded, placing his hands together in supplication – or was it prayer?

At this the jury burst into spontaneous applause. A moment of true theatre. An occasion of comic supremacy. Judge Lightfoot rose slowly and left without a word.

Today, Bobby Davro said, “Out of all the comedians from the past era, I would have to say he was the funniest man I’ve ever seen in my life”.

I know one jury that would agree with that verdict.

With thanks to Carl Kinglsey, barrister, Gordon Perfitt, solicitor and Simon Michael for literary inspiration laminated to this true account https://www.facebook.com/simonmichael.uk/

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Conflicts of interest. The who, the where and what to do?

A post questioning whether overstretched services really provide safe service

Digital record keeping has removed the possibility of turning up at court only to find that you have previously cross-examined your client. These days, family law practitioners have the words ‘watch out for conflicts of interest’ printed into their DNA.

However, in this blog, I wish to examine another, rarely addressed conflict; one apparently under-researched, often overlooked and when perceived, dismissed as an unavoidable aspect of our family court system.

The British Association of Social Workers ‘Code of Ethics’ first mentions the words ‘conflict of interest’ in the penultimate line of code 2.3(4). Yet to its credit, at code 2.2(4) we find the words,

“Challenging unjust policies and practices. Social workers have a duty to bring to the attention of their employers, policy makers, politicians and the general public situations where resources are inadequate or where distribution of resources, policies and practice are oppressive, unfair, harmful or illegal“.

In times of financial constraints, local authority social service directors find themselves with ever-diminishing budgets to service ever-increasing workloads. But how do they balance the potential conflicts of interest?

In 2017, the number of care applications reached record levels, and children looked after in the care system was at its highest since 1989. Currently there are about 73,000 children in the care system, up from 60,000 in 2007. Local authorities are simply struggling to keep pace financially.

According to the Care Crisis review, “Many professionals described the frustration they feel at working in a sector that is overstretched and overwhelmed and in which, too often, children and families do not get the direct help they need early enough to prevent difficulties escalating.”….“There was a palpable sense of unease about how lack of resources, poverty and deprivation are making it harder for families and the system to cope.”

Sir Andrew McFarlane, President of the Family Division added in July 2018, “It may properly be said that we have reached a stage where the threshold for obtaining a public law court order is noticeably low, whereas, no doubt as a result of the current financial climate, the threshold for a family being able to access specialist support services in the community is conversely, very high.”

My recent experience suggests that social services managers are determining choices on the basis of cost – rather than need. This may be inevitable with a finite budget, but does it not call into question whether those with financial interests should be calling the shots?

In a previous blog, I have discussed the idea of removing applicant-status from local authorities to a conceptual ‘Office of the Children’s Guardian’ (OCG). Under that proposal, where social service departments considered a need for public law intervention, they would refer the matter to the independent OCG, which would review the case and where appropriate, take and fund action.

It would follow, instead of disparate local authorities setting different standards of intervention, that public law decisions would be taken (and funded) on a national basis according to national guidelines. Local officers would still bear responsibility for delivery and implementation, but the conflict of cash v action would be removed from their local shoulders.

At times, described by Sir Andrew McFarlane as “untenable”, radical action is needed. Perhaps here is a kernel of a radical answer?

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Online digital case management templates

A post proposing a revolutionary way to change family law proceedings for 21st century needs

In a previous blog ‘The Almost Digital Barrister’, the assiduous reader will recall that I considered the concept of online digital bundles and templates as a mechanism to reform case management.

Since then, the suggestion has been passed from circuit to the High Court judges, and a number of fellow professionals have asked me about the concept; so now seems the right moment to discuss it in more detail.

My practice these days centres on family law – including public, private and financial matters. This blog will therefore focus on this area, although with flexibility, the ideas should be transferable.

Public law cases

For the uninitiated, ‘public law family cases’ are where local authorities having responsibility to ensure the safety and protection of children, become involved with families in their catchment area. They usually start with a ‘referral’ relating to safety or welfare issues, with the expectation that social services will become involved to support, assist and if necessary intervene in the family.

When intervention is required (often where the local authority is seeking to exercise parental responsibility for a child) an application is issued in the family court and a judge becomes involved. Most cases then enter a 26 week completion window which can be extended if the judge decides this is necessary.

Once an application is issued, the court will convene several essential ‘hearings’ within the 26 week period, designed to case manage the issues through to a final adjudication should it be required.

The process involves a little medieval language. The local authority becomes ‘the applicant’ and the parents and children are ‘respondents’. Where grandparents or other family members are involved, they frequently also become ‘parties’ or maybe ‘intervenors’. As often as not, a children’s guardian is appointed to separately represent the interests of the child or children. The ship has been launched.

After this, a host of professionals get onboard with their oars. For the applicant local authority there are the social workers, their managers, contact workers, family support workers, health professionals, school or nursery teachers and sometimes experts such as doctors, consultants, psychologists or substance abuse analysts. Whenever an expert is sought, the court must give its prior approval through a formal application process involving a hearing.

With these professionals come a coterie of solicitors and barristers for most if not all of the parties. In the more complex cases the advocates row in court bristles with lawyers.

The judge that is allocated to manage and resolve the case uses a process that was invented in medieval royal courts. Those that are involved in the case are required to attend before the judge. Legal discussion takes place beforehand – either by advocates conference or in the hour before a hearing. As much information as is then available (and remembered) is shared. The judge gives directions. The parties and their lawyers leave, with the expectation that they will do what they were told, and things will go well.

But, with dysfunctional families, things do not habitually go well. Some engage and succeed, others disengage and fail. Crises arise. Expectations change. Relationships break down. Communication falters and stops.

In the meantime, whilst attention is elsewhere, things get missed, and deadlines not met. On occasions, the whole expectation of weeks previous is lost. When the next ‘hearing’ comes round, the judge is in for a surprise…perhaps a number of the intended objectives have not been realised, and the judge has to re-timetable the case.

Call me simplistic, but as a simple person looking in, it seems to me that the problem is not cured by ‘tweaking’ case management, but needs root-and-branch reform. What is the purpose of bringing together in a court room a bunch of high paid professionals to discuss a case, often in a way that is incomprehensible to the family members involved? And why should these cases remain invisible to judicial scrutiny between the hearings?

The idea of an online digital case management template would go a long way to cure the problems that arise from traditional hearings. It could guide, remind and flag essential matters as they arise, rather than leaving them to a crisis point.

To start with, by using an online process, all of the professionals that need to know about a case would have access to and be guided by the same material in the template. It would be updated with each new event (under the present system often a secret before the hearing). The template can contain automatic digital triggers that require the parties to address and share issues, make decisions, disclose information and problem-solve. At the same time, the judge will be in a position to review the progress of each case at any stage with totally up-to-date information, and to give further directions on the template as to what to do. If a party has a problem with a direction, they could notify this within the template, and the judge could review their concerns. Most importantly, where directions given by the judge have not been actioned, the failure can be flagged.

Rather than pouring vast funds into traditional, and sometimes pointless hearings, why not use public funds more wisely to support the families in need? Yes, any new system will require funding, judges and lawyers will continue to be paid, but substantial savings could result. And if the judges were to be assisted by a team of judicial case managers (who would notify judges of the need for a decision), even more judicial time could be salvaged.

On a related topic, the other day I read about a Ministry of Justice pilot of identity cards for lawyers. The idea is that they produce their card from their wallet or handbag and it is scanned by a security officer, allowing them entry to the court building. Contrast this with the average provincial health club where members simply enter automatically with their fingermark.

The Ministry of Justice should recognise that we already have the technology to support reform. Digital templates simply require existing software written for other purposes. It is out there: we just need the will and imagination to use it!

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The ‘Almost Digital Barrister’

A post addressing problems that arise from cluttered professional email boxes, and better options

In September 2011, I published an outline for barristers concerning the development of paper-free practices.

Eight years on it seems we have made significant progress. Most barristers now use laptops or tablets in court. We send and receive material as email attachments. We are more comfortable with PDFs. In public family law cases local authorities prepare digital bundles, which on occasions thankfully are even digitally indexed.

But are we are still simply giving lip service to digital document management?

Let me illustrate my concern. In a recent public law family case I received a PDF bundle by email. Due to size constraints it had been scanned into volumes, none of which was indexed – nor coincided with the bundle sections, resulting in reports straddling volumes.

Digging deeper into the volumes, I realised that each ‘document’ had been prepared using a stand-alone ‘paper mentality’. Authors had never envisaged that their contribution might form part of an integrated bundle, so despite case number identification, the ‘documents’ were formatted with full headings, laboriously listing the parties and repeating unnecessary information.

What lay behind this became clear when I opened my email box. There, to my horror, bunched in no particular order, was a mass of missives with additional documents attached. Each purported to tell its own individual story; none integrated with each other – or with the bundle.

That got me thinking. Why do we send documents attached to messages? What is the point of ‘circulating’ emails, at times to previous advocates, and occasionally to be missed in the sheer weight of emails?

Surely the purpose of a ‘digital bundle’ is to bring all of the case information together in one place – to which the advocates and the judges have access. It should be capable of being digitally updated. It should be continuously definitive and authoritative, managed in accordance with the judge’s orders. It should tell the whole story that is needed to resolve the case.

Were such a ‘digital bundle’ to be teamed with a shared digital case management template (providing the advocates and judge with a running record of key issues and actions required) the working lives of advocates would become so much easier, and everyone’s decision making more reliable.

What I would like to know is whether I am alone with my suffering in this digital wilderness? Is there anyone out there that shares my concerns? If so, I would love to hear from you.

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To blog or not to blog: that is the question?

A post to address how legal blogs can help the transparency of justice

Blog entry 3 March 2012

“This blog started life on 1 January 2012 as ‘Dere Street Barristers blog’  – to metamorphosize on 3 March 2012 into its current form as the mouthpiece of Dere Street Barristers’ sole blogger”.

‘Dere Street Barristers sole blogger’ – you have got to be joking? Isn’t Dere Street Barristers a set of chambers of about 100 members, many of whom are of a digital generation? Don’t they have thoughts and ideas about the processes of justice; legal aid; how their profession presently meets (or fails to meet) the needs of clients, and can do better; about the future of their profession?

Well, it seems not; or none that they wish to speak about publicly in a blog. Their secrets are shared only with their bank managers; and maybe on a good day, their clerks and spouses.

They are, of course, out of step with their Lord Chief Justice, Lord Burnett of Maldon, who recently spoke of the public need to better understand the process of family justice, and the judges’ role.

“All professions develop their own languages which can become impenetrable to outsiders. Lawyers are no different”. “We cannot complain that the public does not understand what we do, and its importance, if we do not take steps to lift the veil a little and explain what we do.”

“We should seek to reinvigorate public accessibility, subject to any necessary restrictions where openness would itself undermine the administration of justice”.

The Transparency Project headed by chair, Lucy Reed, Julie Doughty & Paul Magrath was set up to provide public insight into family law, to facilitate discussion about its administration, and to highlight access to justice.

With the help of Sir James Munby, the former President of the Family Division, the project secured a pilot starting on 1 October 2018, giving permission for legal bloggers to attend family court hearings, recognising the lawyer’s role as a communicator.

The Transparency Project signals an important understanding: that the role of lawyers does not start with legally protected instructions and finish with an endorsement on a brief. As lawyers we are not part of a immutable legal process to be preserved for posterity, but one which is alive, changing and evolving in a digital age. We are not here to acquiesce; we are here to challenge and discuss options for a better future.

Legal blogging provides the opportunity both to inform and to challenge. As with other media, it creates and services communities of insiders and outsiders. For six years, Dere Street Barristers has forfeited such opportunities – the publication of CPD rewarded presentations, pivital case commentaries, news of developments, information of opportunities. Solicitors and others, who would have been delighted to guest blog, have been sent off to find other outlets.

Back in 2012 I wrote of this blog,  “A number of visionaries supported this project. I trust that, in time, those sceptics within our profession will come to see its merits and possibilities”.

Perhaps, with the digital alliance of our new President Sir Andrew McFarlane and Lord Chief Justice, Lord Burnett, we have reached that moment – a time to think, opine, share and write?

With thanks for the image to https://litreactor.com/columns/blogging-and-the-law-five-issues-you-need-to-know 

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Legislation concerning repeat fire weapons

A post about repeat-fire weapons: whether they have any reasonable use or function in civilian hands in a civilised society

It is, of course, prompted by the Florida shooting alleged to be perpetrated by Nikolas Cruz, but not defined by or dependant on this event.

The 2nd Amendment to the United States of America Bill of Rights is well known, yet little understood. Each commentator (and many individual citizens) have their own understanding of the words contained in it. I sense that few have taken time to read the interpretive decision of the Supreme Court in District of Columbia v Heller (June 26 2008), in particular Justice Scalia’s reasoning on behalf of five Justices, and of course the dissenting judgments of four Justices delivered by Justice Stevens and Justice Breyer.

One reason that the decision may be rarely read is that it is interpretive of the ‘apparent historical intention’ of the lawmakers when the Amendment was passed on December 15 1791, making it a challenging read. Justice Scalia was at pains to address its moment of conception, quoting from Robertson v. Baldwin, 165 U. S. 275, 281 (1897):

“…the Second Amendment was not intended to lay down a “novel principle” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) – referring to the English Bill of Rights 1689.

Interestingly, with the strictly interpretive approach it is quite irrelevant that the ‘inherited right’ from English law no longer stands to be interpreted in the same way by those from whom the right was inherited. Normalised by former Master of the Rolls, Judge Tom Denning, in contrast to the US Supreme Court, English courts would consider the arguments wisely within an unlimited time-frame, with regard to what Justice Breyer raised as interest-based considerations.

So it seems that the 2nd Amendment is to guarantee an individual ‘right’ to possess and carry weapons in case of confrontation, with some qualification, according to Justice Scalia:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”.

The type of weapon is only to be questioned if it falls outside the concept of those available to the founding fathers, so as to be hugely and historically disproportionate to the right – the “dangerous and unusual weapon”. Thus, complex military weapons involving advanced technology would not be permissible. However, repeating and quick-fire weapons are preserved, in that they are deemed to protect ‘an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home’.

Currently, a plethora of commentators around the world are opining on the topic of gun controls and USA politics and policy. And so do I.

It is said that the state of US gun legislation has little to do with the 2nd Amendment, nor DC v Heller. In part it is the consequence of seeking, in one time frame, to define rights for all time. But it is mainly to do with the will of a legislature, the successors in title to those that passed the 2nd Amendment.

And it is to do with money and culture.

Mandatory Credit: Photo by RMV/Shutterstock (9387190an)
The FBI and police agencies from surrounding counties responded to a mass shooting at Marjory Stoneman Douglas High in Parkland, Florida. Police set up a family staging area for parents to meet their children at the Fort Lauderdale Marriott Coral Springs Hotel to pick up their children
Shooting at Stoneman Douglas High School, Parkland, USA – 14 Feb 2018

Reading social media comments from young Americans who knew the Florida killings perpetrator or victims, or who simply identify with the victims’ plight, I have been amazed at the frequency of comment from those that consider the answer to gun violence – is guns. In particular, automatic repeat-fire weapons.

‘Slippery slope’ arguments jostle with ‘arm the teachers’. Both in my view are fundamentally flawed. What is a ‘slippery slope’ for one commentator is heuristic progress of common sense to another. What is an ‘armed teacher’ for one, is to another, a shot-dead teacher.

Change never happens overnight, but I sense that the tragic events of 14 February 2018 could instigate change of some kind.

What is needed is a ‘sweet spot’ of compromise – presumably where neither proponent gets what they seek, but with which both can live, without the fear of being gunned down by one of their own community. To achieve this, someone has to resolve that automatic and quick fire weapons have no place in normal times, in public places, in civilised countries in the hands of civilians.

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Barrister in Buenos Aires

This post concerns what it takes to leave work behind, albeit for a short break

Regular readers will know of my grand escapes. Most years in the past ten, I leave the Bar behind to travel, and those who have made Google searches will know of my travel blogs here and here. You may also have found my Ageing Effortlessly blog in which I have written about ‘preparing for life after work’, which includes the value of foreign travel.

For many, travel is simply taking holidays of three, or at most four weeks. Yes – it is travel after a fashion, but its nature and duration do not allow for significant change in life and outlook. This actually constitutes a failure of living, in which we end up with unfulfilled aspirations that become impossibilities.

I am here in Buenos Aires, ostensibly to meet fellow lawyers, talk mediation and dance Argentine tango. It involves a sideways step from everyday realities of English legal practice into the shadows of another world. My break is of four months, giving time to review life, assess change and experiment with new experience and ideas.

Some readers have a problem with this – the “That may be alright for you, but it wouldn’t work for me” mentality. Their impediments to travel of this kind are usually stated as being:

• I have school fees to pay, pension to fund and a mortgage to support. I cannot afford to take such a break.
• My spouse/partner is a governor – I cannot take my children out of school out of term time, and anyway, what about their sats?
• I have elderly relatives. Who will look after them when I am away.
• The solicitors that instruct me will find someone else for their work.
• I cannot imagine what I would do with that all  time.
• What if I like it too much, then what?

Taking extended breaks does require a degree of preparation, especially financial planning; but not so much as you might think. These days it is possible to take pension and mortgage breaks. Some travellers choose to arrange a home exchange; others pack up their valuables and offer their home on a short let. With the right anticipation and notice, school fees can be avoided – after all, you will be educating your child/ren elsewhere.

Elderly relatives is a trickier emotional problem. Talk with them and ask them what they think about your proposed trip. Most older relatives report their main anxiety as not having someone to call on in the case of emergency. With careful management, this can efficiently be addressed. Sorting out your own trepidation and duty conscience is quite another – you will just have to sit down and give yourself a stern talking-to.

The fear of falling behind professionally is a psychological symptom of anxiousness, rather than a measure of any actual reality. If you are under-performing at work, you are likely to face this fate anyway; if you are competent in what you do, there is always an open professional door for those with experience.

“I get bored after a couple of weeks” is the worst comment a potential traveller can make. It says that you should give up the idea of travelling ever, and stay back to polish the car. Travelling creates interest, excitement, new horizons, offers new friendships and relationships. If you are bored by travel, you are simply doing it wrong.

‘What if I like it too much?…”. The honest answer is that you probably will. It may change your ideas about what you want from life – where you wish to live, how you wish to live, and even with whom you wish to live. Given just eighty or so years of life expecation, with a chunk already expended, what is the problem with a shake-up of lifestyle?

After all, travel creates choices, rather than restricts them. And yes, it creates challenges too, which is one of the very best reasons why we choose to do it.

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Silver Barrister

A post examining the fate of retired barristers, and whether they should simply be scrapped

Its Monday, and I am returning from two and a half months away from practice as a barrister. The case I am assigned to cover  is listed ‘not-before-11.30’ at Newcastle Family Court before a district judge. A colleague in chambers is for the applicant local authority, so I know it is in good hands.

It feels disconcerting to arrive in chambers after a long break. Annie looks up from reception to buzz me in, and greets me with a smile. “Hello Mr Twist, how was the trip?” “Fine, Annie, but it does seem strange to be back”.

Yes, it does feel very strange. It reminds me of the first day at school after a summer break. The smell of the building – a combination of coffee and hot paper on the scanner; the sounds of articulate voices drifting in corridors; light slanting through the dust.

The problem is that my colleagues have been beavering away during my recess – finding places to park or taking trains to court; bumping their wheeled cases along pavements; emptying their pockets at security; meeting solicitors and clients; and advocating before judges and juries. Whilst that film has been running, I have not been watching, or even present. The world has moved on a little, and I have remained still.

This mood lasts but an hour before momentum drives it to the back of my mind, and I question if I have ever been away. The meeting of advocates sees tight-scripted positions coalesce into agreement; the judge smiles and approves our efforts, signing the order with a few kind words. And the day becomes just another day in the life of a busy barrister.

But, as you would expect with this blog, there is an unresolved issue – not with the case – but with me. Advancing to the end of professional life, I ask myself about me; my longevity at the Bar, and what lies ahead. My colleagues become younger as I age. My conversation is on the differences of the past rather than the opportunities of the future.

Today I rise early to complete my attendance note for yesterday’s hearing. BBC Radio 4 burbles in the background. ‘The Life Scientific’s Adrian Thomas explains to Jim Khalili about ‘silver engineers’. And with those words suddenly all becomes clear.

When it comes to retirement, as a species we waste considerable resources, experience and skills. In another blog I addressed the question of preparing for retirement. Here I propose to extend those ideas into the new concept of the ‘silver barrister’.

Like the ‘silver engineer’, the ‘silver barrister’ is one who for whatever reason has decided to retire from active practice, but who still possesses the energy and capacity to contribute professionally. This contribution may be in relation to mentoring, supportive training, assisting or managing complaints and grievance processes, preparing legal digests, library management, or helping the chambers’ head and executive with a plethora of tasks. The ‘silver barrister’ provides a safe, available and sufficiently independent pair of hands – backed up with a professional lifetime of experience.

As a facilitator, I ask myself about the ‘balance of reward’ from such an arrangement? Here I list what I consider to be the essential characteristics of the role:

• The status and role of ‘silver barrister’ should be confirmed and defined by the Bar Council in collaboration with the Inns of Court.
• Silver barristers would be invited/elected by their chambers for continued membership for a renewable twelve month term.
• They would not have rights of audience or independent advisory status as barristers, and so be exempt from professional indemnity insurance requirement, and professional competence regulation. Their chambers would pay a nominal annual Bar registration fee.
• Their status as non-practicing consultants must be declared clearly on all professional communications.
• They would not be entitled to remuneration for their role as silver barrister, but may be remunerated by a practicing barrister for advisory/preparatory work undertaken for that barrister.
• Individual chambers may decide with regard to internal arrangements, such as voting and chambers fees and charges.

As pressures on chambers administration – and the potential contribution from retiring seniors increase, why not look at that symbiosis to match needs and resources? This may be the ideal solution for our profession – for both young and old alike.

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Control your car legally – the advent of the digital vehicle

A post examining vehicle recognition and control in the digital age

Others will write about Barcelona and Cambrils – recalling Paris and London. They may address urban terrorism that has reached Turku, and even comment on Herat mosque, Lahore, Lake Chad, Abyan, Kirkuk, Bajaur, Quetta, Burkina Faso, Kunduz, and Konduga. August 2017 saw 113 global terrorist events, involving 494 innocent deaths.

Academic analysis would reveal the number of terrorist incidents involving motor vehicles used for travel to – and escape from, as well as perpetrate terrorism. Today’s radio conversation is about ‘hiring vans to terrorists’. And tomorrow?

Road traffic deaths in the UK for the year ending March 2016 were 1,780, with 24,610 people killed or seriously injured, and 187,050 casualties of all severity. Cyclist’s deaths comprise 100 in the same year, whilst serious injuries amount to 3,239 and lesser injuries 15,505. Motor traffic levels rose in that year by 1.8%.

I think you see where I am going. Now don’t get me wrong: I like vehicles. I have owned and driven many kinds over four decades, from large motorcycles to HGVs, and still own three – a motor home, car and roadster. But, like me, do you see the writing on the wall – that says ‘top gear motor days are over’?

With the advent of driverless, electric-powered cars, we entered a digital motoring age. Top of the range vehicles – including BMW and Mercedes with conventional engines – inform you remotely where they are, how they are, what they need, what they are doing, having the capacity to park themselves. They ‘live and breathe information’, with which our smart phones light up at any distance.

It seems that the days of the incognito car are numbered. We have electronic number plate recognition, so it is a small step to the digitally identified vehicle; one that can be tracked remotely, and importantly, controlled remotely.

When travelling on UK roads and motorways, I am constantly amazed by the speed of some passing cars. More alarming is their closing and stopping speed. The combination of driver error and irresponsibility is fatal. Now what if those vehicles could be remotely managed?

It has always seemed to me to be an absurdity that vehicles for UK roads are still sold on the basis of speed. Assuming use on public roads with a 70 mph limit, how is this appropriate? Why do we tacitly promote the acquisition of high performance cars? On 13 March 1996, seventeen innocent deaths in Dunblane resulted in the abolition of handguns. So why in 2017 do we tolerate a massive car-death toll?

How would it be if all UK road vehicles (with the exception of emergency services) were fitted with speed regulators linked to GPS and road-side sensors that controlled maximum speed depending on road classification, and even road conditions? Why simply detect and fine, when you can regulate?

How many lives might be saved? How many vehicles involved in crime may be traced? And, when actively used for criminal or terrorist prevention purposes, how many vehicles could be identified, targeted and electronically slowed and brought to a stop – upon leaving a carriageway, or by police in pursuit?

Of course the ‘motoring rights lobby’ will screech in anguish, neglecting the fact that irresponsible exercise of their rights frequently deprives innocents of lives and families of loved ones. We would have to ‘get over’ the fact that, unlike people, vehicles fall into the category of accountable property, and that our movements with and within them would be traceable.

What is the current price of vehicular freedom? Is it worth it? If ‘freedom’ is really what you want, why not buy a bike and take the risk with the rest of us?

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Barrister’s Survival Guide

A post about 40 years of legal practice as a barrister and my survival tips for others

Congratulate me. I have just turned 40. No, not my age regrettably, but my years in private practice as an English barrister.

40 years doing the ‘same job’ got me thinking about what it is to be a barrister, how it has changed over the years, and importantly, what tips I can share concerning survival.

As one of the bar’s ‘senior juniors’ – an oxymoronic term used to describe ‘old barristers who have never ‘taken silk’  – I remember the days of drafty court rooms that existed in almost every town, where the judge would arrive at 10.30, to leave for home as soon as a trial finished or collapsed. As barristers, we were a small band of 6,000 – mostly in London, and generally knew everyone who worked on the circuit. We travelled the circuit, appearing at a variety of courts, often in very different cases. It was commonplace to see the same opponent in civil, criminal, regulatory, family and even chancery cases. We did what came up.

Clearly, those days have passed, just as old courts have closed. Today, we are specialists, new entrants to the bar sometimes only experiencing one area of practice.

So that leads me to my first tip.

Experience life outside your specialist field. I accept that the days of general practice have passed and gone, that we are pressed into ever increasing specialisation, but with this comes two fatal flaws to excellence as an advocate. The first is the reduction of transferrable skills. Just as advocates in criminal cases do not gain regular exposure to the need for rigorous intellectual crafting of argument based on complex law, the civil practitioners finds themselves weak when it comes to the art of persuasion. Those practicing in family law (unless they have High Court and appeal practices) are frequently denied both, to wobble around with sentences like “mum says…”…and “wouldn’t you agree that contact went well?”.

Moving between disciplines over 40 years, I have been impressed and amazed at the relevance of transferrable skills between one specialist field and another, enhancing practice in each area and enriching the experience of being a barrister.

My second tip is ‘think condom’. Engaged in numerous high-level police corruption trials and hearings, my advice to the most senior police officers has been ‘protect yourself – prepare and record in anticipation of a public inquiry in 4 years’. Some listened, and survived. Others failed to heed, and were eventually dismissed or discredited. The same goes for barristers. Just round the corner is the surprise challenge, in which someone fails, complains or dies.

To address this it is wise to record the client’s decisions and the reasons for them; and our advice, the known facts on which it was based, and our justification for it. Several times I have been rescued by a comprehensive endorsement of my brief (a document that I contend falls outside client privilege), or a detailed attendance note made and shared immediately after a conference or hearing.

The third tip is ‘always have a plan B’. Just thinking about alternatives prepares our minds to address other possibilities as to approach and outcome. So we are rarely surprised, or worse, floored. More important with clients, the need for a ‘plan B’ focusses on the fact that the law is an inexact art, and advocating an outcome does not mean that the judge will agree. The plan B sometimes involves a simple matter of changing expectations, or alerting clients to the dangers of their case.

My fourth tip is ‘leave your work behind’. If, like me, you work extensively from home, find and preserve a place where you work, and from which you leave for family life. Here, I am thinking more of leaving problems behind, rather than the sharing of some of the more fun aspects of practice at the bar. In my case, my study is solely for work and legal discussion. It has a lock on the door, so I sense the moment when I depart, and return to real life.

My fifth and final tip is to take time out from practice. I have been a master at this skill, away for the summer whilst my family was young, and later taking longer trips involving months away, including sabattical breaks away from work.

Whilst I recall my very first senior clerk say to established barristers “…well, it is your practice, Sir”, and then look accusingly knowing that they would lose their nerve, I have never experienced anything other than continued prosperity, success and fulfilment coming from taking regular holidays and time out. More importantly, should you be lucky like me to survive 40 years of private practice, you will appreciate the enriching perspective that this has added to your life.

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Final Furlong

A post written in Buenos Aires for ‘Death Cafe‘ which is more about life than death – it concerns the ‘final furlong’.

For some – you might say ‘the lucky ones’ – death comes in old age, suddenly, painlessly and without warning. Others may face a long and challenging ‘final furlong’. Those of us in this group will need to prepare for death if we are to get it right – or as right as preparing for an unknown death can ever be.

Preparing for change is often one of our most difficult tasks as we age. We may be distracted by other concerns, in denial about our mortality, or simply too frail to address it. The one inevitability is that we will not escape it; so there is need to prepare well for a ‘good death’.

I shall be dealing with several aspects of ‘the final furlong’. My list is not exhaustive, nor my opinion definitive. There is more to be said, and I hope readers will add their experience and insight to produce the best-crafted approach to the process of infirmity, dying and death. Of particular interest is the less visible group who face the final furlong prematurely, before age can justify demise.

THE NUTS AND BOLTS
As it is unlikely that you will be given sufficient, if any advance warning of death, this advice is applicable to every adult, irrespective of age.

The first essential – to make a Will.
Recently, as a barrister I was instructed by the Official Solicitor to deal with an application in the Court of Protection on behalf of a dying woman. When younger, she had made a Will, but in the meantime her son – her sole beneficiary under her Will, had died. She was however fortunate in her final years to be cared for by a devoted step-daughter who lived with her. These were happy years until the old lady developed dementia. It was then that her historic (and now useless) Will was discovered, and her incapacity made it too late for her to make a new one.

Under the rules of Intestacy her step-daughter would receive not a penny. Within the list of the distant relatives to benefit, none had maintained contact with the old lady and most knew not of her existence. Using its inherent powers, the court indicated that it would change the Will in favour of the step-daughter, adding that there had rarely been a more deserving case. Yet the night before the hearing, the old lady died, and her step-daughter was forced to leave her home with just her clothes after 15 years as unpaid resident carer.

This tale tells of a bigger story. It speaks of the need to make, and review your Will to take account of your present circumstances. The ‘old Will in a drawer’ may be your last iniquity to a well-spent life.

My advice: after the age 25 make a Will, and update it as your life circumstances change. In later life, address your choices ‘root-and-branch’ to ensure your Will is appropriate and fair. Make a list of everything you possess, from real estate (houses and land), shares, policies and pensions – to other assets such as savings, vehicles, jewellery; then list their location. Set out your wishes in simple terms. A solicitor may prepare this for a charge, but it is possible to make your own Will by following this simple free guidance here.

The second essential – to prepare two powers of attorney.
As we age we lose capacity. At first this may be simply ‘a senior moment’ and a forgotten name. Few people reach the end of life with both memory and reasoning intact. In the future there will be many more elderly people with cognitive deficit. More concerning for a younger generation is the possibility of loss of capacity through trauma, such as car accident, major illness or stroke.

Most incidents of loss of capacity come suddenly and without warning. So it is wise to prepare powers of attorney that enable a relative or friend to make important decisions on your behalf should you lack capacity. There are two powers of attorney – one for health and welfare decisions; one to manage financial affairs. They cannot be exercised against your will, so that should not be a reason for failing to take this step.

My advice: make both at any age beyond 40 years. There is a cost to register your powers of attorney, but the cost is infinitesimal compared with the professional charges that will be involved should this choice be neglected. Ask a family member to assist you, or prepare both using the government’s on-line free service here.

The third essential – to make an Advance Decision and Advance Statement.
The advance decision sets out your instructions concerning your medical care at the end of life. Properly made and recorded, it is binding on medical professionals and relieves distressed relatives of difficult, sometimes divisive decisions. Whilst assisted dying is not currently a legal option in the UK, supported dying is. So this is your chance to specify the extent of care you would seek at various stages when your death is imminent, or should worthwhile existence have ceased.

You will be relieved to know that your advance statement is a more creative document. Here you state your preferences for care should you not be able to articulate them when the time comes. These may include where you would prefer to end your days, how and by whom you wish to be cared, by what name you wish to be addressed, what food, music and interests are important to you, and as important, what you would wish to avoid.

Preparing both the decision and the statement are simple using the free Compassion in Dying on-line support here.

Those facing terminal care should also make an advance care plan. For this you need to consult your treating physician when the time comes. Ensure that your advance decision and advance statement are attached to the care plan.

BEYOND THE BASICS

Prepare your own funeral / other arrangements.
Whilst to some this sounds a morbid topic (which it is), others find it quite empowering. You will not experience what you plan, but by preparing in advance, your family will be spared much work, stress, distress, and probably many arguments as to what is best.

At the most basic level, would you wish to be buried or cremated? Where would you wish to be buried or have your ashes scattered, how and by whom?

My mother chose her own funeral director – someone who she had known and respected. She pre-paid her funeral arrangements, as a sculptor, carved her own memorial stone, and specified the exact position where her ashes should be placed. On her death all that was required was a simple phone call – everything else was sorted.

My advice: prepare a plan. Humorously mark it “It’s My Funeral’, leave a list of who you wish to be invited, and how they may be contacted. Why not choose your favourite music, hymns, readings, and set out your wishes for a funeral breakfast or wake? Make provision for this within your Will so that the cost is clearly covered and not contested.

Where do you want to die?
In ‘The lady and the Reaper’ film we witness the conflict between the medical profession and the Grim Reaper. Hopefully, your advance decision will have taken care of this particular battle.

But there remains the issue of where you would wish to end your days. I have visited splendid care homes that are well staffed with caring people – yet often I sense the tediousness of day-to-day existence that many residents experience in a care or nursing home.

Towards the end of my mother’s life, remaining in her own home with support afforded her access to all that was familiar in a location where friends could drop by.

Others may not be so fortunate. Removal to a care home can be confusing and may be distressing. For those with mental capacity, the move is itself a form of bereavement when they let go of possessions and familiarity.

My advice: Write down your wishes. If you own your home, assess its suitability for old age, advancing infirmity and ‘the final furlong’. What is needed to allow you to remain there? Can it be adapted to afford you ground floor living? What about electronic, key-less entry for family, visitors and carers? What is the value of your home should you need to move? What other accommodation will your equity and savings afford? If you do not own your home, what alternatives are out there by way of retirement or sheltered accommodation?

If you reach the stage where you may need hospital care, do you really want to undertake this last journey and face death in a hospital bed? If not, your family and friends need to know your wishes and feelings, so that they can be respected.

Departing with dignity and saying goodbye
Most of us reach the end of life with unfinished business. It may be an argument with a relative or friend, or an unspoken acknowledgment of love, thanks or support. At the simplest level it could just be who you would wish to be informed when you die.

My advice: make a list of who you wish to be told of your death, and how they can be contacted. Write letters to those that you love, respect and will miss, together with those that you know will feel your loss. Should you have outstanding issues, you can address them in a letter sensitively – understanding that there can be no reply.

In Mitch Albom’s ‘Tuesdays with Morrie’, facing end of life, Morrie was asked what he valued most in life. His answer was unsurprising – ‘family, friends and relationships’.

Perhaps, by way of acknowledgement or repair, a word of thanks or forgiveness to our family, friends and those we have known and valued can be our final parting gift before we die?

Stephen Twist © 2017 for Death Cafe
With thanks to YG2D.com for the photo

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Barrister of 37 years is hotel manager for 3 months

A post about how I came to take a break from legal practice to manage a hotel in Buenos Aires

Thirty seven years of practice as a barrister must have an outcome. Silk; or judicial appointment to the High Court Bench? No.

A quiet fade-away into slippered retirement, wearing jazzy socks and carrying a secateurs? Not.

So, for what else, as professional life slips to a close, is an aging barrister qualified?

Those who know me know the answer without the help of this blog. Over the past nine years, fifteen months in Buenos Aires has told me about life, and the need to live it. It has incited me to dance Argentine tango – the tango walk, the moment, the giro, the embrace. So, when my friends said, “Come and look after Casa Luna while we are away”, the answer was a sudden and simple, yes.

Picture if you will, a warm balmy evening, the crickets cricketing across the paving stones, the soft sound of music drifting on night air, the lights low, a rustle in the trees where a slow draft of liquid air gently shakes glossy leaves. As we reach the steps to wide double doors, the music is defined as tango. Above, figures move in close embrace, feeling the dance and feeling life.

The orchestra strikes up a song from Di Sarli for a new tanda. I ‘cabeceo’ across the room to secure a mirada response from an unknown dance partner. She smiles. I walk. We meet at her table. She rises to dance. A passing tanguero nods for us to enter the pista. We embrace and we walk. I feel her weight, her balance, and the tenderness of her touch. I smell her perfume, and allow the infinite structure of the music to dictate the rest.

We dance the tanda of three songs, each taking us further and further into the moment of the dance, before the cortina indicates that we part. Light suffuses, our breathing synchronises, we experience that ‘melting moment’ of connection when dance becomes life, and life becomes dance. Deeper and deeper, until there is no more depth to explore. The music ceases. We stand for a moment before returning to her seat. This is the milonga of Buenos Aires. This is the magic of dance.

Seven thousand miles from England. But a million miles from legal practice on the North Eastern Circuit. Courts and clients fade to distant memory. ‘Not before 10.30 at Teesside Combined Court Centre’ ceases to have meaning. We leave the milonga at 6 am, a taxi awaits, it races through deserted streets until we reach our leafy bario, collecting media lunas (tiny sweet croissant) and brewing fresh coffee as the sun rises before another glorious balmy day.

So, there it is. Until April, Casa Luna, Buenos Aires shall be my home, a place filled with sunlight, and anchored with an embrace.

If you want to know more about this particular journey, do not stay here – for this page will be silent until April. Simply visit http://stephentwist.blogspot.co.uk/ to learn about and follow the life of a tango dancing barrister in Buenos Aires – the ‘ups and downs’ of Argentine life, and this special connection to another world.

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Advocacy – a low in Family Courts, or a sign of the times?

A post about family court advocacy and the choices we should consider

After 37 years of practice at the Bar – out of touch? I hope not as much as you would expect. Moved with the times? Now, here you can judge.

Today’s blog concerns family court advocacy.

I have not always been a family practitioner. There was a time – up to 1997 – when my practice involved largely criminal defence and regulatory work. After a diet of inner and outer London Crown Courts, and of course, the Central Criminal Court, I moved to the North Eastern Circuit to spend my time in the Crown Courts of Yorkshire. It follows that my advocacy skills were seated in the demands and honed by the constraints of plain speaking criminal advocacy.

The process was simple. Examination involved asking questions. Non-leading questions. The simpler, the better. Each question could, and frequently was prefaced with the words “who, what, where, when, how, why”. The aim of the question was to elicit a reply, and the reply was the evidence. Oral evidence was the currency of the court.

Cross examination permitted leading questions – where a direction or suggested answer occurs naturally within the question. Previous inconsistent statements could be put to a witness and tested by questioning – “here, you said ‘a’; now you say ‘b’; why the difference?”

Beyond those simple rules, we did not stray. To do so would result in the judge stopping line of questioning and the defective question prevented. Save for older silks, most complied, and we got along fine.

Whilst the admissibility of affidavits and statutory declarations has always been permitted, there came a time when pre-prepared statements were encouraged, and later required. In civil proceedings, the statements were to stand as the witness’ evidence, and it would be on their written statement that they would be tested in cross examination.

As a process, this lasted ‘but five judicial minutes in a long legal landscape’. Advocates used the statements to prepare the ground, rather than setting it. So it is rare today that witnesses are called and tendered on the basis of their written statement. Instead, advocates track through already deposed facts and recollections, and judges sit silently permitting this to happen, as if they hear the revelation for the first time.

But the main current transgression in advocacy skills, is the use by advocates of ‘comment’ dressed elaborately as a question. We all know that there is a massive difference between questions, assertions and comments. The first is designed to elicit evidence, and the others are an argumentative measure of the questioner’s opinion.

Habitually in family courts, lines of questioning are loaded with comment, or flung at witnessed as assertions. Some practitioners may say this is simply to ‘set the scene’ for a question. Mostly, the scene does not need to be set, and the assertive comment from an advocate is entirely out of place where the judge has read the evidence bundle. Maybe this is the problem – maybe the judges haven’t and the advocates are seeking to describe the case to the judge, rather than question the witness on their evidence?

The more judges permit it to occur, the more it happens, to the point of normalising the ‘assertive-comment question’. The clarity of the process is not the only casualty; another is a diminution of the skill of the advocate. As opinion and evidence blur, so does the original integrity of the purpose and function of questioning witnesses. Witnesses are not simply confronted – which is good; but bullied, confused and invited to argument – which is cruel, unnecessary and to my view, unprofessional.

The flaw now appears ubiquitous in family courts, as family judges sit back and listen to comment-laden questions fired repetitively, to the point that when it comes to closing submissions (or comment) there is not a fresh comment to make.

Some suggest that the family courts have ‘floated away from the mainstream civil legal process’, with altered rules of evidence and procedure. Yes, family courts have a special, human job to do -one that frequently requires a more informal approach -but the casualties of free-for-all questioning are extensive, not least the skill and ability of advocates to question without comment.

With thanks to Mark Anderson for use of his cartoon  

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Its my money. Trust me!

A post dealing with the cost of divorce, especially when it comes to financial arrangements

Over the final half of my 37 years as a barrister in private practice, I have been arguing over money.

Not mine, I hasten to add, but other people’s. In particular, divorcing spouses or cohabitees. There comes a time after almost every separation when two people who have lived together and loved, start to argue about the spoils. Those that can afford it rush to a solicitor or direct access barrister and commence battle. Those that cannot pay may chose to go it alone.

Either way, they have embarked on a battle from which there is little respite – until they run out of money, of energy, or are crushed at court in a final hearing.

But the purpose of this blog is not to bemoan honest,hard-working people spending inordinate amounts of their money on lawyers and in courts. It is to examine the fundamental flaws of financial remedy proceedings (as the financial arrangements are called in court).

My first observation is prosaically procedural. How is it that going to court to argue financial splitting of assets can remotely be justified? The cost of this process starts at £12,000 for the couple, and soars to a dizzy £100-120,000 in more complex cases. In J v J the parties managed to rack up £920,000 in costs between them, much to the judicial amazement and displeasure of Mr Justice Mostyn. Do they get a return on their investment? J v J didn’t; and generally, the chances are – not.

Readers of my earlier blogs will recall my commentary on the alternatives of mediation and arbitration, which I will not repeat here. Guidance by a single expert makes sense, assuming the expert knows what a judge would do, and that both parties agree to be bound by the outcome. There is, of course, the other ‘questionable’ alternative of splitting at the outset by way of pre or post-nuptual agreement.

My main concern here is to do with the philosophy of division where children are involved. In fact, my problem goes further – to question of ‘ownership’ and ‘responsibility’.

The financial wars that I have witnessed rarely focus on the children. Yes, this may be the court’s first consideration when it comes to making an order, but the children seem to remain ‘bit players’ in the battles, unless they are to be used as weapons to secure a greater share of the booty for one of the parents.

So, what would happen if we changed the rules?

Imagine this. When two people decide that they are to have children, they would do so in the knowledge that they forfeit ownership of property to them? How would that be?

Simple. The law would deem that all matrimonial property vested immediately in trust for the children, and that each parent became a trustee for the child. Rather than children being ‘the first consideration’ for a court, a child or children would be deemed to be the beneficial owners of all of the property. There would no longer be the ‘divvy up’ entitlement of assets to to each parent; there would be an appropriate of provision for the parents’ immediate needs and no more. The rest would be managed exclusively to provide everything that their child would need through to the age of 21.

What a glorious world that would be – children placed, where they deserve and need to be – at the centre of decision making as the beneficiary and responsibility of their parents’ endeavours.

But will such ever come to pass? Of course not. We have neither the imagination to prioritise children over parental greed, nor the legal system to oversee it.

Instead, we will continue to subsidise the lifestyle of lawyers (of which I am one). But, long may it continue – for after all, what value the future of our children?

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Circling restorative justice – are we missing a trick?

A post about alternatives to criminal justice and how a restorative approach could revolutionise it

If it is a distinction to have been part of the exponential development of mediation in the late 1990’s – then I suppose I have that distinction. It was an exciting time – when Harry Woolf made his transition from Master of the Rolls to Lord Chief Justice of England, and with his elevation, the insertion of alternative dispute resolution into the Civil Procedure Rules of England[1].

They were interesting times too. We felt we had invented mediation – it seems forgetting the Conciliation Act of 1896, and the earlier peace circles of ancient civilisations. But commercial mediation spread like a shoal, spawning a vast fry of ADR, arbitration, med-arb, conciliation and early neutral evaluation.

Whilst professionals and others found ways to make money from the dispute resolution industry, restorative justice crept up on the nets with relative invisibility – or was it simply that we commercial mediators were not looking?  It seems that we in England had totally missed the pioneering efforts in 1992 of Canadian judge Stuart J in R v Moses. But following the success of initiatives in Northern Ireland, the restorative approach went on to capture both hearts and imaginations across the UK, and since then, whether by democratic socialism, or the post-Thatcherite hashtag ‘Big Society’, restorative justice has become well and truly embedded in post-sentence youth justice.

The Northern Irish experience showed that outside service providers – public authorities, police or private institutions – were unable to penetrate tight-knit, segregated communities. When it came, change resulted not from managed community initiatives, but from the vision and application of individuals – from people. They were the visionaries that recruited others not by salary, but by conscience –  involving ordinary, local people meeting other people with problems of conflict – to listen, to help, to suggest and to empower, with a belief that change is possible.

The concept of the restorative circle is integral to the community restorative process, although I have to admit that when I first encountered circles at the European Forum for RJ conference ‘Beyond Crime – pathways to desistance, social justice and peacebuilding’ in 2014 with Professor Dr Evelyn Zellerer, I was skeptical. The idea seemed a little too ‘touchy-feely’ for my commercial mediation tastes. It was only after participating in a circle, that I became hooked. Since then I have introduced circles into my model of dispute resolution and participated in countless circles with other practitioners.

But, what of its use within criminal justice as part of the sentencing process?

In R v Moses, Barry Stuart observed, “Many might debate the extent any decision-making process shapes the result, but indisputably process can be as determinative as content. In sentencing, process profoundly influences the result. The process influences, not just what, and how matters are addressed, but who participates and what impact each person has in shaping the final decision”.

“Currently the search for improving sentencing process champions a greater role for victims of crime, reconciliation, restraint in the use of incarceration, and a broadening of sentencing alternatives that involves less government expenditure and more community participation. As many studies expose the imprudence of excessive reliance upon punishment as the central objective in sentencing, rehabilitation and reconciliation are properly accorded greater emphasis. All these changes call upon communities to become more actively involved and to assume more responsibility for resolving conflict. To engage meaningful community participation, the sentence decision-making process must be altered to share power with the community, and where appropriate, communities must be empowered to resolve many conflicts now processed through criminal courts”.

What was achieved here was revolutionary at the time, and transformative in its effect. The role of professionals in court was changed, a wider array of interested parties (including family) were included, more and better information was received, and a bigger range of options created. Here was a sharing of responsibility involving both offender and victim – to a higher and more constructive degree than in the conventional sentencing process – using community resources and strengths to give greater reach.

What has happened since? Restorative circles remain a central and most effective way to produce acknowledgment of harm and changes in recidivism. Youth offenders will frequently find themselves involved in restorative circles with their victims and justice professionals. Yet English courts have not seized this opportunity fully, especially with regard to the sentencing process itself.

Will restorative justice languish as yet another service level industry, managed on the periphery by ‘providers’, delivered by paid practitioners, and destined to join the fads of failed initiatives?

Restoration cannot be ‘delivered’ as if from Amazon, dropped off by Parcel Force to be signed for by the customer. It is not a commodity. It is not a service. It involves a change in the way we relate to offenders. And it should start with the courts themselves when considering sentence, rather than an afterthought as an adjunct to punishment.

[1] CPR 1(4)e

Let’s leave the party….

A post considering why proceedings involving children should be driven by anyone other than the child

Back in February 2014 I raised a question about ‘party status‘ in relation to private law proceedings concerning children – cases where parents disagree about the care and upbringing of their children. To save the reader returning to it I was simply querying whether giving parents in conflict the right to manage proceedings in relation to their children, was right or appropriate for the twenty first century?

Since then I have had a number of discussions with other lawyers about public law cases, and their responses have been surprising.

For the uninitiated, public law proceedings concerning children relate to situations where local authority children’s social services feel the need to be involved with families to protect children from harm. The harm may come from poor or inappropriate parenting, downright dangerous lack of care, or even an outside threat from extended family or friends.

As a civilised society, we need local authorities to be proactive in this role, as much as we may instinctively hate the idea of children being removed from their parents -and the only home they have known.

Under a regime introduced by the President of the Family Court, local authorities may have involvement with families for a substantial period of time before proceedings are issued in court. By seeking to work with parents, social workers may be able to achieve sufficient improvement in care that parents may provide good enough parenting and matters need not go to court.

As lawyers for parents and children, we become involved when all attempts to provide a safe home and upbringing appears to have failed. Then the local authority will issue an application in a family court for a public law order – maybe a care, supervision, or even a placement for adoption order. Only now is a guardian for the child or children appointed, and even here their active role is limited.

However, public resources are provided for the parents or carers of the child. Parents become ‘respondents’ to the application brought by the local authority, and have a right to publicly funded representation. The court then wrestles with the dichotomy between the rights of the parents to their family life, and the rights of the child to protection.

So, what is my concern?

Well, it is simple. At a time of limited resources and huge pressures on public funding, why are the parents appointed (and funded) to be drivers of the case? Why do we insist on an adversarial approach in every case involving local authority intervention? Why are parents pitted against social workers backed up by social services lawyers? With legislation that is supposed to be ‘child centred’, why is not the voice of the child – or the independent professional charged with representing the child – not calling the shots?

It would take a significant change in the intellectual/social/legal approach to child care cases to implement a new, totally child-focused system. We would need to go back and re-write the Children Act 1989. But how would it be if, in every case where a child was considered to be at significant risk, a properly trained, properly paid, experienced professional guardian was appointed to oversee conflict between the local authority and the parents from the point of view of the child or children?

Where proceedings were notified by the local authority, a Public Guardian Service with sufficient resources of lawyers and structures, would take over the proceedings. The parents would become compellable witnesses – having the right for their voices to be heard, thus attending to their Article 8 rights. But the case would be conducted by the Public Guardian’s Office with the needs of the child being central. The guardian’s legal team would receive or obtain statements from the parents, and these – together with all the other evidence (including that of the local authority) would be considered by a family judge or tribunal.

Other lawyers will be quick to realise some of the implications of this concept. Yes, along with the loss of ‘party-status’, the parents would lose the right to be legally represented, save in cases where very serious findings against a parent may be made. Parents would become answerable to the court’s assessment of the needs of their children to be protected, rather than remaining as they are now, as central managers of the litigation. And we lawyers, who have made a living out of representing parents, would forfeit that work.

But the idea is not simply to save spending massive resources on providing representation for parents, it is to bring about a change in the culture of public law family proceedings. To get away from the adversarial, combative approach – and to substitute a system where everyone’s focus started and finished on the needs of the child. Competent guardians (supported by a Public Guardian’s Office) would encourage local authorities to engage more, and more positively, with families to secure good-enough parenting. They would determine when the whistle should be blown on parents and carers that had not responded to the chances given.

For the first time in the history of children’s litigation, the child would be centre stage – supported and resourced by those best equipped to see through the eyes of a child.

Invent some futile work

A post that questions a widely disliked piece of bureaucracy and what we should do about it

FAS Ex506. It sounds important, doesn’t it? Writing this blog for a mix of readers, I had better explain. First, what is a FAS Ex506?

Well, it is a ‘form’ that barristers and solicitors are required to fill it in to get paid for publicly funded work. Not, I may add, for ‘fat-cat lawyers’ – those filling in such forms are at the very bottom of the food chain when it comes to remuneration, with rates frequently lower than those for a joiner or plumber.

So, what happens to the ‘form’?

Every ‘form’ that is filled in at court is handed to the judge at the end of the case. It may be a case lasting days – or only minutes. Frequently the judge asks for the forms to be brought up to their chambers by a court official when the case is over. The judge will sit and initial entries, making sure that their signature is appended to every variable on the ‘form’. There could be up to eight signatures needed per form, and there may be up to ten ‘forms’ to be signed. Once signed, the court official carries them back to court and distributes them to each advocate in turn.

Now this is just the beginning of a journey for FAS Ex506. The advocate takes their ‘form’ back to their barrister’s chambers or solicitor’s office. Numerous other documents are added to it, including the advocate’s instructions to undertake the case on that particular day, a copy of the court’s order requiring the advocate to attend at a given time on that day, a copy of that day’s order stating what happened in court, and the advocates hand-written account of the hearing.

We now have a bundle perhaps containing over 20 pages of information – recording in minute detail every aspect of the case: what was expected to happen, what actually happened; why it happened; why what was expected to happen differed from what actually happened; what was going to happen next; what the advocate thought had, might or probably would happen; and if it didn’t happen, why not.

The bundle proceeds to a fees clerk, who checks it in meticulous detail for the slightest error. A missed signature would cause a crisis – any problems detected result in the bundle being returned to be repaired – perhaps by going back to the same judge at the same or different court on another day, for a missing signature to be added.

If approved by the fees clerk, the bundle of papers is sent to the Legal Aid Agency. Here a clerk with a NVQ in paper administration sorts all of the bundles for each case and inspects each page of each bundle for mistakes. Do the legal aid clerks receive bonuses for each bundle they reject?…for the most trivial issue will result in its return to sender. A summary that has been prepared by the fees clerk will be marked for accuracy by the legal aid clerk, and only if it passes with full marks will the request for payment be approved.

So, what is my point?

It is impossible to quantify the amount of time that is spent by the advocate, the judge, the fees clerk and the legal aid clerk simply on administration. In an era when digital data recording is preferred, why is this mountain of documents prepared and transmitted? Why the repetition of the same document frequently submitted by each advocate? Why is a judge expected to certify the information, when much of it is, or could be readily evident from the court order?

The system was introduced with little forethought. The Legal Aid Agency created their own monster, which they now administer at considerable public cost. No single person has put their mind to review or remedy this mindless exercise.

I suggest that the Legal Aid Agency gets its house in order and scraps the futile FAS Ex560. If they do not, I propose that the judges should add a further 30 minutes to each timed hearing – to account for judicial time taken in administration on behalf of the Agency. Were they to do this, I bet you can quickly guess how speedy would be the response!

Gun culture and Gangland. Who bears the Risk?

A post reflecting on post Sandy Hook incidents of gun crime and what should be done about it

Readers will be aware of this blogger’s preoccupation with guns as instruments of death. Its right to say that, as a former certificate holder, I was never fully comfortable with owning a firearm. As an English barrister dealing with a barrage of firearms cases for several police authorities, I became even more sensitive to the issues of ownership, use and abuse.

Shootings in American schools have resulted in recent impassioned gun pleas from President Obama. I glanced at the Wikipedia entry – yes, it takes some time to scroll down from 1927 to 2015 – to find that the Umpqua Community College shooting, with the loss of 10 lives, 20 casualties, and innumerable families distraught, was not in fact the most recent school shooting in the USA. Since then there have been two further school deaths in the States, and since my Sandy Hook blog, 19 further incidents comprising 38 deaths.

The US gun lobby, in the form of the National Rifle Association, however, maintain their resistance. It seems that Americans are unable to release themselves from the belief that guns in the hands of civilian are more protective than offensive.

Restricting the lawful possession of handguns here in the UK after 17 deaths at Dunblane, has been of massive value in saving lives and changing public opinion. The Great British public have little issue with the fact that handguns are no longer permitted outside gun shooting clubs.

It has not, however, shut off the availability of guns. Greater Manchester Police have seized 30 unlicensed weapons this year. Now, in yet a gangland feud, Jayne Hickey, a mother and her 7 year old child have been shot.

I have previously blogged about the question of rights to own firearms here in the UK, and the need for some legislative change.

Whilst unlawful weapons – especially handguns – will be imported from time to time, the gangland weapon of choice is frequently a simple shotgun, the barrel shortened for ease of concealment, and blast effect. There is no need to import these weapons, they are here already.

Whether shotgun or handgun, the most recent shootings beg the question “What is the source of these weapons?” Until we address the manufacture, procurement and recording of weapons internationally, we will face incidents like these.  Perhaps, with regard to the ‘home gun market’, now is the time to insist (in addition to a gun amnesty) that every registered certificate holder has compulsory insurance against all of the implications of their weapon entering the wrong hands?

Liam and Nicole

With thanks to REX Shutterstock and the Guardian for the photo

A post dealing with the growth of arbitration for financial issues following divorce

The President told you so…Liam, you should have listened to him! And now you find yourself in a half-built house, with the public looking in through the gaps.

For some reason, I was the last to know that poor Liam and Nicole were having difficulties with their judge. It seems such a short time ago that ‘Oasis’ Liam Gallagher and ‘All Saints’ Nicole Appleton were a happily married couple, and then in April last year in the space of 68 seconds District Judge Anne Aitken granted their divorce. The name of US journalist Liza Ghorbani was also mentioned, but not that of Liam and Liza’s love child, nor the £2m lawsuit that ensued.

Mr Justice Mostyn is the judge that has been given the job of sorting out the money, and last week heard Patrick Chamberlayne QC and Fiona Shacketon argue that the case should be heard in private. His decision is awaited.

Mostyn J has however said, “If you asked someone to design a more crazy system they couldn’t have done it … Sometimes the court has to issue an unanonymised judgment to prevent speculation becoming the new truth.” The government needs to address problems because the existing system is “a half-built house”.

The ‘half-built house’ is the state of affairs where the press are entitled to enter family courts…and, sort of, report bits of what they hear. Here I am confused. but it seems so is Mr Justice Mostyn stating, “The press come in half-blindfolded … The role of the press is more watchdog than as members of the public.”

When, as an advocate, I have raised the prospect of open justice, my judges have simply looked down their spectacles and said, “that is not necessary”, allowing proceedings to continue behind closed doors. Our Family Court President has for a while pressed for family proceedings to be more open – certainly with regard to the reporting of process and decision making.

Of course Liam and Nicole could have opted for a private arbitration. The President is encouraging it – see AI v MT and S v S. So should we. Someone should ring Liam and Nicole and tell them. Or should they? When celebrities marry in the spotlight of public glamour, why hide the aftermath?

Advertisements below have no relationship to this blog or this writer, neither authorised by me nor endorsed – and certainly not monetarised.

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Culture Casualty

A post about lunch, reflecting on the death of the Bar Mess

Yesterday, I found myself reminiscing about ‘the old days at the Bar’ – as one does after 36 long years in private practice.

Unusually, eleven lawyers were beached together in the small advocates’ room at York Family Court Centre whilst Judge F, the single judge, battled with a massive list, complicated by all manner of legal conundrums. I permitted the wash of sound to lap against my consciousness. If I needed confirmation that I was in a family court the words were ‘children’, ‘mum’, dad’ and the odd ‘grandchild’ provided it.  Ahead of me was a flash of red lining from a young advocates new suit, a blue silk scarf wafted beyond on a peg, files were piled on tables and window ledges, and a suitcases staggered in a crazy parking lot by the lockers.  These were the true signs of the family court.

But there was no mention of ‘lunch’.

These days, as the plastic forks and boxes and vacuum packed sandwiches join the cardboard coffee and aluminium flasks on the advocates’ tables, there is no thought of communal ritual or routine. At one time, courts would have risen almost simultaneously, coughing advocates up and out to join each other at ‘the mess’ – the legal ritual daily lunch.

Here on the North Eastern Circuit at Leeds, an entire centre row of tables in the advocates’ area would be cleared at noon and set for lunch, with meals served simultaneously by the waitress staff. When a jury had recently returned a verdict – and the day’s work completed, a bottle of burgundy may also appear. In Sheffield and Hull, this event was honed to a fine art by the court junior. Arriving at the selected pub or hotel, advocates would be greeted by door and waitress staff, and led to linen-dressed tables, pre-set with wine and flowers. Joined by the judges, lunch would last as long as they deemed proper, with occasional messages phoned from the corner booth to inform court staff that the judge was ‘unavoidably delayed’.

Some readers will read this with incredulity. Others, censoriously, sensing inappropriate practice and privilege. But, at the time, it provided the perfect setting for the real work of the Bar – communication.

Retiring from active practice at the Bar, HP’s recent observations  about ‘lunch’ were remarkably insightful – not surprising for those that knew HP’s innate perspicacity. She may read this and deprecate the linking of her remarks with historic excesses, for that is not what she meant. Her point (and mine) was simply that busy, overworked, over-stressed advocates needed an opportunity to unpack, talk, listen and reflect. Rather than taking home the stresses of unresolved conflict to unwitting families  – how much more appropriate to sit together as professionals, take lunch and chat things through?

These days the elegance of practice – whether as a barrister or solicitor of the Supreme Court – has been removed, stolen or simply evaporated with the passage of time. Mostly, we subsist as executives working in the law, festooned and remunerated by regulation. Like the judges before whom we appear, we have little or no ‘thinking time’. Last minute preparation of digital information requires instant responses and sees us enter courts with sometimes superficial grasp of the case in hand, and no later chance to reflect or discuss what we should have learned.

The system – whether imposed by Ministry of Justice, HM Court Service, Legal Aid Agency or merely present day structure of the professions – simply impoverishes our work rather than enhances it. The greater the pressure to deliver in the shortest possible time without reflection, the poorer the judgement, and the service that we deliver.

I say, “bring back lunch”, and breath new, old meaning into legal practice.

Arbitration revisited

A post about how arbitration may be the way forward for family financial disputes

Divorce Arbitration blog in April 2012  reflected on the first 40 divorce arbitrators appointed through the Institute of Family Arbitrators. Since then, the President Lord Justice Munby in S v S has given arbitration in financial remedy cases a massive boost. A final piece of the jigsaw has been thrown down on the table by Mr Justice Mostyn in J v J – a matter which I covered in the blog Scandalous Costs.

You don’t need to be clairvoyant to detect the future for financial remedy cases. With unacceptably escalating costs in adversarial court processes, coupled with the possibility of open justice through public courts, we are unlikely to continue to litigate many financial cases as we have done in the past. The alternatives may not be as I described in Solving Disputes, but there is a lot to commend the concept of private resolution.

So, how well placed are our northern regional centres – such as Manchester, Sheffield Leeds and Newcastle – to meet future demand for private arbitrations of disputes about family finances?

A handful of individual of regional practitioners have taken the plunge to qualify as financial remedy arbitrators, yet there has been no consistent policy to produce pairings, let alone teams within barrister’s chambers or solicitors’ practices. Further, we have developed no marketing arm to promote arbitration, or practice policy to bring arbitrators together.

The Chartered Institute of Arbitrators, as a regulatory body, can do so much – perhaps mainly for London based practitioners – but it hasn’t the reach to make a difference in the provinces, and market weight will not remedy this deficiency for some time to come.

This market sector is highly specialised, so it is unlikely to attract corporate players outside the current legal community of financial remedy practitioners. But that is not to say that the regional market cannot be absorbed by London collectives.

Now may be the time for northern financial remedy arbitrators to make changes – to be less reliant on the old systems of referral – and much more focused on direct marketing with a single regional dispute resolution centre. Lord Justice Munby is paving a way that we in the north would be remiss not to follow.

Community Justice – the ‘community court’ for 2015

A post questioning why private family matters should be conducted in public courts

Today, the Stephen Twist Barrister blog is three years of age.

Back in January 2012, in the then ‘Dere Street Barristers Blog’, my first posting ‘Thirty Three Thesis Thirty Three  has stood the test of time. Lawyers’ fees and earnings reduced over the following three years;  the world did not end (as the Great Cycle of the Long Count predicted) on 21 December 2012; and my chambers survived a further three years.

My preoccu-prediction that mediation would develop apace was a sage guess – with ADR continuing to rise over three years in civil and family cases, and restorative solutions appearing increasingly in criminal processes. Perhaps my vision of paper-free practices was less visionary. Third party investment in the legal profession was an event that foretold of a trend. More prominent, direct access to the Bar has continued to provide an alternative to the ‘gold card’ spend.

As precursors for this blog, my increasingly present concerns about ‘court process’ resulted in a series of blogs relating to privatised courts, starting in May 2013 with Privatised Courts – where to, where from? The September blog Fit For Purpose, addressing the idea of private court hearings, proved very popular – to the point that it was passed off as the work of an infamous silk until the Bar Council caught up and exposed him. Although slightly off-piste, Party Animals published in February 2014 looked at alternative approaches to family court litigation. However, it was not until July 2014 that my blog got to grips with the prospect of Dispute Resolution Centres in Solving Disputes and Scandalous Costs in November 2014.

Michael Zuckerman, in his excellent article, The Experience of Dignity: Community Courts and the Future of the Criminal Justice System tells of the Red Hook Community Justice Centre in Brooklyn as a community court. Until I read his article, I had not heard of the 70 multi-jurisdictional community courts. The concept, reminiscent of Nils Christie’s paper Conflicts as Property, has significant merits. It returns justice to the community affected, and empowers rather than simply punishes.

So why, in Britain, do we not have such a centre? The economics make total sense. If reduction in offending is an objective, this is surely the way forward. Client and community satisfaction appear to be met exponentially by the project.

As a Youth Offending Panellist and trained restorative justice facilitator, I have seen first hand the benefits of alternative approaches to justice and conflict resolution. Now seems to be the perfect time to return conflict back to the community for repair, rather than to estreat it to the courts for punishment.

Christmas break – from lawyers

Do barristers and mediation mix?

 

Some barristers risk perpetuating adversarial stereotypes. But there is still a place for counsel in the mediation process.

Are barristers a useful tool in mediation, or does too much time have to be spent calming their egos before the mediation can get going?

Rachel Rothwell asks the question in her excellent article (click this link) in the Law Society Gazette. Do you agree with her answer?

 

Scandalous Costs

A post about the cost of divorce and whether the tax payer should pick up any part of the bill

Between 29 October and 5 November 2014, Mr Justice Mostyn heard a financial remedy dispute between two embattled divorcing parents.

Their home was worth £291k, a property portfolio worth £317k, pensions of £115k and two businesses valued at £2080k.

By the Financial Dispute Resolution appointment on 12 March 2014, they had spent £226k in costs.  However, eight months later on 6 November, their legal costs rose to a staggering £920k – nearly one third of their assets.

In another case, the current President of the Family Division (in 2008 as a High Court judge) spoke of excessive costs constituting to “a scandal which must somehow be brought under control“. In 2012 Lord Neuberger had a go at costs in his lecture to the Association of Costs Lawyers, saying that hourly billing confused “cost with value”.

To avoid “the grotesque leaching of costs”, like Lord Neuberger before him, Mostyn J proposes fixed costs legal services to replace hourly billing, together with costs caps – and is to send the issue back to the President of the Family Courts for action.

This blogger has always been ambivalent towards hourly rate billing, believing that ‘time spent’ varies according to expertise. The lazy or inept lawyer can spend considerable time doing what the expert will do in an instant. With hourly billing, one is overpaid, whilst the other is inadequately rewarded.

But has the judiciary really grasped the nettle of costs?

The simple flaw lies deeper, in the fact that two firms of litigators, whose interests are served by protracting conflict, are permitted to take their clients into headlong battle, for which both the public and their clients pay at an hourly rate.

What do they pay for? Frequently, the ‘what is there?’ – the identity and value or the assets – is not the problem. Where divorcing couples can’t agree, they get an independent valuation. The real issue is to determine ‘what to do’ with what is there; and that is the job for their barrister.

The impenetrable form E – the court designed document intended to set out a financial picture probably fails in every regard, other than to raise rancour. What is needed is a simple schedule of assets, liabilites and income. After all, the court will attend to these (as did Mostyn J) – not the aspirations and wishes of the parties, nor tactical positions crafted by their solicitors. Why, then, should the preparation (and possible agreement) of such a schedule not be made a pre-requisite of a financial remedy claim?

What to do with the assets is frequently fairly obvious. Up and down the country District Judges hear contested cases in a matter of hours and give extempore judgments immediately following the evidence. More frequently, matters resolve at the financial dispute resolution stage when a judge (without hearing evidence) makes sage suggestions.

Why the battle lines? Why two lawyers and an adversarial process? What is wrong with simple experienced and impartial analysis to help resolve these issues? That the parties won’t agree is simply an excuse by an over-priced, unwieldy adversarial system – made possible and perpetuated by the court process.

Regrettably, what Mr Justice Mostyn did not evaluate was the significant cost to the public of hearing the case – numerous appearances before the lower court, a Deputy District Judge, Judge Bancroft’s salary, Mostyn J’s own salary over seven days, the Family Court and High Court buildings, court staff, heating and lighting – to deal with a ‘delinquent’ couple who had spent £920,000 with their lawyers.

How bizarre is it having public courts dedicated to this massively costly process, paid for at huge cost to taxpayers?

Down the High Street or direct to Counsel?

A post that considers ‘the one-stop-shop’ for legal services, and how this might be the future for how we work

Welcome to Clerksroom Direct – a recent web presence to be rolled out to the public on 1 January 2015, providing a new service for barristers, clerks and chambers with a portal designed to be an end-to-end solution for the Public Access Bar.

Clerksroom say that their portal will invite enquiries from the public, obtaining quotes from barristers and allowing the public to select the appropriate service. It is to be free for barristers, clerks and chambers as the client will pay a small additional administration fee for using the portal, importantly, giving client choice.

Direct access has been with us in one form or another since 1999 when I set up and ran the first BarDirect pilots that gave corporate and institutional clients free access to the Bar. Since then, metamorphosing into Public Access, with regular training sessions for barristers and the Bar Council’s directory of practitioners, direct access has become part of the legal landscape.

The Bar’s need to compete in the private client market was accelerated by the Law Society‘s insistence on obtaining higher rights of advocacy for their members. This led to the Bar Standards Board declaring,

“Whilst the referral model remains robust for those cases which require and can afford a division of labour between advocate and litigator, there is a need to allow greater flexibility in service provision in cases where this is not so.”

“The BSB anticipates a market for privately funded work where clients involved in litigation have a choice between the traditional referral model, one-stop services supplied either by solicitor-advocates or by barristers who also provide litigation services, public access services where the barrister provides advocacy and advice but the client conducts the litigation and ‘spot’ purchases by self-represented litigants of advice or assistance with particular aspects of their case.”

With the reduction in legal aid contracts and the hike in legal aid entry criteria for firms of solicitors, combined with the removal or reduction of legal aid from areas of legal work, high street solicitors have been feeling the strain.

Some solicitors are now expressing dissatisfaction with the concept of direct access to the Bar, seeing this as the latest nail in the high street coffin.

The question to be asked by us all is whether these changes are here to stay? A quick web search says that they are. The professional bodies slip stream government policies – and appear to agree.

So, is not now the time to recognise change, rather than adopt Luddite responses of denial? Direct Access may not yet be a legal ‘combined harvester’, but the signs are that this is a distinct possibility. Clients gravitate towards two incentives – cost cutting, and expertise. And this is where the Bar is unique.

The Bar will continue to increase its direct client market share. The professions will have to re-configure their relationships to reflect this. But those ahead of the game -like Clerksroom Direct -may have the steal on us all.

Farnham Puppy Farm murders

ACC Stuart Cundy, Surrey Police – Photo courtesy of bbc.co.uk

A post that examines whether gun control needs to be reviewed in the light of Farnham

23 February 2014, Farnham in Surrey, Christine Lee and her daughter Lucy were shot dead by John Lowe.

The weapon was a simple shot gun. It, together with other guns had been taken from him by police in March 2013 following concerns raised by Christine Lee’s other daughter Stacy Banner. By July 2013 they were returned.

John Lowe was Christine Lee’s partner. His cache of seven shotguns were kept by him at Keepers Cottage Stud under his shotgun certificate. At the time of the killing he was 82 years of age. His long-term relationship with Christine Lee had been marred by years of conflict. The case had an uncanny resemblance to that of Michael Atherton.

Today, John Lowe was convicted of murder and awaits sentence. After the verdict, this blogger was placed on stand-by by BBC Radio 4 PM programme. As matters progressed, Kevin Hurley, the Police and Crime Commissioner for Surrey agreed to comment, and unconvincingly, whilst deflecting on ‘cuts’ to the service, blamed Surrey Police staff a ‘flawed decision that failed to meet national standards’.

I see it differently. Time may indeed tell that clerical officers in an under-resourced office at Surrey Police Headquarters made mistakes. A head of department may be disciplined. National standards (which the blogger finds convoluted) may not have been followed.

But the essence of the problem lies not in the guidelines, but the rules that require the return of weapons to a certificate holder.

The debate has not yet matured to this level of examination, but under current firearms law, the possession of a shotgun is a ‘right’ not a ‘privilege’. An applicant does not have to ‘earn’ the opportunity to hold a weapon, nor to demonstrate anything other than it will be locked up securely.  A shotgun certificate “shall be granted” unless the applicant is a prohibited person (for example a known criminal who has served time), is demonstrated not to have a good reason to possess a weapon, or is shown to be “a danger to the public safety or the peace”.

The Farnham puppy farm dilema is not as uncommon as first appears. It’s just that fortuitously, the horror perpetrated by John Lowe is extremely rare.

Throughout police services in the UK, talented, informed and experienced firearms officers will tell you of cases where weapons have been anxiously returned to certificate holders, simply because the rules do not permit any other course.

Courts (usually at first instance the justices), interpret the law just as they are required to do – strictly. When the burden is on a firearms officer to demonstrate that an applicant has no good purpose or will be a danger to the public or the peace, the fact that the applicant has amassed an arsenal of weapons and wanders their neighbourhood dressed in military fatigues is largely irrelevant.

Contrary to Nigel Farage’s ill-judged comments back in January 2014, the 1997 restrictions following Dunblane did not go far enough. Then, and now, the criteria for possessing a firearm of any kind should be changed to one of privilege, and not of right.

The gun lobby will squeal; those who are committed to individual freedoms will protest; but neither group tend to be the victim of gun crime. It is the Christine Lees and the Susan McGoldricks that commonly carry the death penalty for our unruly rules.

Launch of the new ‘Dispute Resolution Centre’

If you follow Stephen Twist’s Barrister Blog, you will be aware of my previous proposals for private dispute resolution and the single Dispute Facilitation Centre.

Such was the interest the ideas have engaged, that a group of us decided to join together to make it happen.

To find out more, click the link.

Solving Disputes

A post to examine whether dispute resolution centres could work to support justice

Readers will be familiar with my preoccupation with alternative dispute resolution – especially if you flash back to my postings here – ‘Privatised Courts – where to, where from‘ and ‘Fit for Purpose‘.

With a civil court £100m deficit last year, court fees have had to rise (in one case by 216%). Such rises impact on access to justice for many people. Yet the court issue fee is the least of a litigant’s problems. The biggest is arguably their legal costs at the conclusion of the case.

The only answer to massive legal bills (and the real danger of adverse costs orders against unsuccessful litigants)  is to bypass the legal process altogether; although whilst the courts are open for business, and litigation lawyers strive to make money, this option is not currently realistic.

I have been impressed by recent developments in restorative justice, where those in conflict are encouraged and helped to sort things out between themselves in a civilised way. It is now acknowledged that there are almost no disputes that need to be excluded from this restorative process. Facilitators are arranging meetings in homicide and rape cases, and in long-standing conflicts that have been running for years. Even cases involving highly dangerous perpetrators, those with mental illness, and with children and young people are often deemed suitable for facilitation.

In my view, this is the vision for the future – lawyers and courts standing back, to allow for a more proportionate and appropriate resolution.

It will require a new role for law and for lawyers. Legal rules are there not simply to be known to lawyers and applied by judges in binding outcomes; but should be made available to guide those in dispute towards sensible compromises. The law should act as a framework for a well-ordered life, rather than as technical and incomprehensible set of rules to be adjudicated upon.

Speak to anyone who has been involved in legal processes and they will tell you that justice is always partial. This is because, whilst courts are supposed to be brokers of truth and justice, decisions arise from balances of proof and evidence, and judgments are frequently arbitrary. Once in the legal process, the litigants surrender all real power over outcomes, and remain in the hands of one individual, with that person’s limitations and prejudices. Not all judges are good judges, and not all of their decisions are correct. And to correct a poor decision by appeal takes time and often a considerable amount of money.

Firms of lawyers and barristers’ chambers should offer and provide proper ‘Dispute Resolution Centres’ – a place to which the protagonists can turn for considered and proportionate advice, and from which they are not expelled into an adversarial forum. Joint legal opinions and advice would form the first step helping the ‘parties’ to understand a framework for settlement. After that would come the facilitation stage – not necessarily managed by and restricted to the lawyers – but perhaps overseen by expert dispute brokers. And if issues remained, those in dispute would access simple adjudication by way of joint expert decision or arbitration.

Dispute Resolution Centres could operate on the basis of fixed fees without ‘issue costs’, teams of warring layers, and vitriolic letters – providing a ‘one-stop-shop’ to contain and resolve conflict.

For those that doubt the concept, remember, if lawyers do not take this initiative now, others may do so to their exclusion.

End of life – now await Lord Falconer’s bill on 18 July in the House of Lords

A post dealing with the issue of assisted dying and a change in the law

The long awaited judgment in R v Nicklinson has been handed down in the Supreme Court. Here is a link to the YouTube video.

Readers will note that the judgment comes after considerable deliberation by  a massive nine  Supreme Court Judges – an extremely rare occurrence. It follows that this is one of the most important judgments of recent times, and is worthy of a careful and comprehensive read.

Dignity in Dying summarise the 366 paragraphs of judgment thus:

Summary of the case outcomes

Martin case

None of the nine justices ordered the Director of Public Prosecutions (DPP) to clarify the prosecuting policy on assisted suicide in relation to healthcare professionals. However, Lord Neuberger, Lady Hale, in particular, made it clear that the justices expect the DPP to look again at her policy in the light of their concerns and comments, and to amend it as she sees fit.

This is, in particular, to address a clear contrast between what the prosecuting policy actually says about healthcare professionals and assisted suicide, and the interpretation given to it by the DPP’s legal counsel during the court hearing on her express instruction (this was essentially agreeing with Lord Judge’s interpretation in his decision on the case at the Court of Appeal).

Nicklinson/Lamb case

Whilst there was no declaration of incompatibility, several of the justices indicated that they think the court could (depending on the application before it) declare section 2 of the Suicide Act incompatible with Article 8 ECHR rights in the future if Parliament does not amend it.

Lord Neuberger, Lord Wilson and Lord Mance accept that, in the right case and at the right time, it would be open to the Supreme Court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. However, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration.

Lady Hale and Lord Kerr would make a declaration of incompatibility now. Lord Kerr put matters simply:

“If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someone’s death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assister’s aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished-for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloved’s lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye”.

Is  the judgment the ‘yellow card’ to our legislature; or simply indicative of the Supreme Court judges being too cautious – despite the weight of public opinion concerning their moral duty?

The Assisted Dying Bill brought by Lord Falconer is due for its first reading in the House of Lords on 18 July 2014. The majority of Supreme Court judges have sent a clear message to the legislature – ‘whilst we will not interfere now, should the law not be clarified by new legislation, we may’.

Dying for death – the legal right to die

Following a recent personal experience is sometimes not the best time to address life-changing legal issues that will affect others. During the recent protracted death of my 91 year old mother after a severe stroke, I found myself and my family precipitated onto the Liverpool Care Pathway. Our involvement was to watch, bedside, whilst she struggled towards a delayed death, cared for by kind and competent medical staff, but hindered by an unkind process.

The Liverpool Care Pathway is to be reviewed. Is it sufficiently clear? Does it inform relatives that the process of dying on the pathway may be prolonged and challenging? Is it clear regarding the issue of food and hydration during dying? How can we ensure that proper information has been shared with a patient’s family, and consents have been freely given?

The Pathway, developed during the late 1990s in conjunction with the Marie Curie Palliative Care Institute at the Royal Liverpool University Hospital, was to allow people with a terminal illness to die with dignity. Then, and perhaps now, this approach is counter-intuitive for a medical profession dedicated to cures and life.  Entry to the Pathway is the recognition that death is both inevitable and imminent. This final furlong involves the end of active, life-sustaining treatment, and the acknowledgement that death is an objective.

The Pathway may be simple if the patient is unable to take nutrition and liquids without painful medical intervention. An unconscious patient is expected to slip further from life, absent life support. But what if the patient really needs assistance with dying?

Tony Nicklinson suffered from ‘locked-in syndrome’. His unsuccessful High Court challenge to the right to an assisted death was taken over after his death in 2012 by the paralysed Paul Lamb, and resulted in the constitutionally correct, but unkind ducking of the issue by the Court of Appeal. The court held that denying assistance towards death constituted a proportionate interference with Article 8 rights to self-determination. Lord Judge considered that any change to the law was a matter for parliament to legislate.  The associated ‘Martin’ appeal was however allowed. Here, the Director of Public Prosecutions was required to provide clearer guidance on prosecution policy of those, including medical staff, who may accompany a patient to Switzerland for the purpose of assisted dying.

The matter could not end there. The case now awaits judgment from the Supreme Court. Paul Lamb has continued his legal battle for the right to an assisted death, whilst Keir Starmer, the former Director of Public Prosecutions asked for further guidance from the Supreme Court on prosecution policy.

Examining the current guidance, it is significant that the ‘full code test’ which has to be met before a prosecution is brought, comprises not just an evidential test, but a public interest assessment. Herein is the dichotomy – between individual rights (or wishes), and public interest considerations.

Baroness Mary Warnock (moral philosopher and thinker) and Elisabeth MacDonald (cancer specialist and expert on medical law) captured these issues comprehensively and sensitively in ‘Easeful Death- Is there a case for Assisted Dying‘, published by Oxford University Press in 2008. They summarise the debate (as did the House of Lords Select Committee) as representing two conflicting principles – ‘the sanctity of human life’ and ‘the principle of autonomy’. In 1998, the debate centred around the wishes of motor neurone disease sufferer Diane Pretty to die with dignity. Lord Joffe’s bill, the last before Parliament, was rejected in 2006. It is a sad commentary on the state of English law that, whilst parts of the European community have developed a cogent end-of-life policy, the UK still flounders with indecision.

The BBC script writers of Coronation Street revived the debate this year with the death of Hayley Cropper, taking her own life rather than waiting for a painful death. Following the screening, polls recorded that 80% of the British public support the idea of medical assistance to die with dignity. Interestingly, 71% of those expressing religious beliefs also support a change in the law.

Should the wishes of mentally competent adults be treated with respect when it comes to the fate of their own life and body? Should those whose medical or physical condition is so severe that they are unable to help themselves, be assisted on the pathway to dying? Are sufficient safeguards available to prevent unlawful death? Should the compassion card trump the legal prohibition?

The latest Assisted Dying Bill, brought this time by Lord Falconer and modelled on the law in Oregon, USA, is to ‘enable competent adults who are terminally ill to be provided at their request with specified assistance to end their own life; and for connected purposes’. A free vote is to be allowed, although currently 30% of MPs support the Bill and 40% are yet undecided. The Bill’s scope is limited, compared with Switzerland (where assisted suicide has been lawful since the 1940’s), Holland and Belgium.

Whilst this Bill may not have helped my mother towards a peaceful death -with public support – it is certainly a step on the way.

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Party Animals

photo of Sir James Munby, President of the Family Division, courtesy of Brian Smith for the Telegraph

A further post dealing with putting children first in family proceedings

“Going to court about your children is almost as bad as accepting an invitation from Jeremy Kyle…you should have sat down quietly together and sorted it. Instead you go for broke and destroy your last bit of dignity in a courtroom drama?“

Strong words, (I hasten to add, not from the President of the Family Division) and amusing in their invective; but containing that trace of truth that harbours an important point.

If anyone was to invent a process that was better designed to fan the flames of conflict and at times humiliate the protagonists, they may be hard pushed to beat the current ‘family court system’. Take two people who are at loggerheads, a judge who ‘has better things to do’, bring in two lawyers with their jerry cans of publicly funded fuel, strike a match and you’re sure of a big blaze. If you are legally aided, the taxpayer gets to pay for your day in court, and if you are not-so-sponsored, you can also add in a huge bill for all the damage that is sown and reaped.

For over thirty years I have played my part as a barrister in these cases. Often, there are no winners – apart from the lawyers. The adults leave court with the compromise they could or should have agreed many months before, and the children pick up the emotional tab of their parents’ conflict.

In my previous blogs I have explored the role of mediation to tame the tempest. Glance back to see my ‘mediation musings’. But in this blog, I want to explore the question of why we allow (and frequently require) the adult players to be the drivers of litigation concerning their children.

The Children Act 1989 was intended to put children first. Maybe it did, but the legislators did not seize the stinging nettle as to ‘who should manage’ competing claims. In 1989, the adversarial system was still in full flight, even in children cases, and family advocates were rated on being a “good fighter”, “doughty opponent”, or “a determined advocate”. It would have been unconscionable to remove from parents their cherished ‘party status’ through which they could both commence proceedings and seek to control them as litigators.

Now the climate has changed. The courts have felt the effect of global warming and frequently turn on the air conditioning, or even the sprinklers to cool the temperature of conflict. The Children and Families Bill seeks to remove some of the more divisive concepts concerning private law orders. So, is the right time to take that extra step – and withdraw party status from the protagonists?

Envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and appoints a ‘children’s guardian’ as a matter of course.

Rather than allowing the adults to rush through the doors of the court, the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was possible, it would be recorded as an agreement and submitted to the court as endorsed in AI v MT and re-affirmed in S v S.

Should agreement not prove possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. The parents /grandparents /extended family members would all remain witnesses, having a right to have their voice heard, but not to manage and control the case. Only in public law cases where serious allegations were made against a parent would the question of party status arise.

In the absence of party agreement, the Guardian’s advocate would present the contested issue to the court, calling the parents as relevant witnesses. That which had already been agreed could be outlined, and the remainder decided by the district judge.

Of course, we would have to move away from the adversarial process, and that would require cultural and legislative changes. This may already be awaiting in the wings with the advent of the Single Family Court. We would also need proper funding of guardians and their solicitors. But the saving of replicated costs of party status for parents would probably pay for a pretty good service.

The requirements of efficiency and institutional functionality would probably rule out CAFCASS as a service provider, yet with a large pool of funded, professionally regulated, independent guardians, this problem could be overcome.

European Convention articles 6 or 8 may be cited as an issue, but  the European Court in Rosalba Alassini & Ors v Telecom Italia SpA & Ors, a endorsed the introduction of compulsory mediation as a preliminary step to litigation. Here, the facilitative role of the Guardian would be a preliminary step before the right to be heard by the court.

Do you agree that the change is a timely and necessary step on the road to managing both public and private law issues competently and proportionately, keeping the child on centre stage?

But what about the poor lawyers who would lose work? …..Yes, you have a point there.

The relationship between the Bar and the Bench

In January two years ago in Family Proceedings on the Move I raised an issue about the requirement for advocates to draft court orders.  In July last year in The Headmaster’s Slipper, I had cause to revisit the topic in the light of the ‘Submission of Orders in the Single Family Court’ direction.

It is now established practice that the advocates in a case will be responsible for drafting the majority of court orders within tight time-scales, so relieving both the judge and the court service who otherwise would prepare and ‘type it up’. Only those of my era will appreciate fully what a sea-change in responsibility and time this produces. Advocates, who formerly strolled away from court for lunch – their job done – now spend hours in drafting and agreeing the order. Mostly, this work falls outside remunerated time. In other words, the preparation of orders is a pro bono contribution.

As of the 17 March 2014, should Advocacy Forms not be signed by judges on the day of hearing,  Newcastle Combined Court has stated that it will refuse to pass them to Judges for signature. Instead advocates will be required to make an appointment with the Judge (probably prior to court commencing) where the Judge will consider the matter and listen to the advocate’s representations as to why this wasn’t done at the conclusion of the case before leaving court.

The probability will be that the judge did not stay long enough at the conclusion of a case for the information required on the form to be added, and it to be handed in for signature on the day.

Yet it occurs to the blogger that this is yet another example of ‘the administration of advocates’ by the court.

The Advocacy Form was always a flawed concept, proving nothing that could not be better obtained from more reliable, existing sources – a set of instructions, an up-to-date index and a witness list provide all of the information that is needed. The ludicrous issue of a judge certifying start and finish times can, if needed, be spot checked by reference to the court file.

A senior member of the Bar has recently observed that where the court service lose court orders and bundles in a case they will now be required to ‘make an appointment with her and she will consider whether to provide them with another copy’. I agree with her; yet this brilliant and witty ripost shows just how far we as advocates are being pushed by ‘the system’ away from our old collaborative relationship with judges.

With the Quality Assurance Scheme for Advocates appointing judges as ‘graders of advocates’, the historic relationship between the Bar and the bench is now up-for-grabs. Judges and advocates are being manipulated and tied by the court service and government into a new web of bureaucracy. At what point will judicial discretion in relation to the drawing of court orders, the completion of Advocacy Forms, the grading of advocates – and most certainly many other issues – be totally removed, to be replaced by ‘management strategies’?

Non-Court based Solutions

CIArb News / 26 November 2013

A post dealing with alternative dispute resolution – in particular mediation in family litigation

A recent poll has found that only 51% of the British public would consider trying a non-court based solution instead of going to court if they were to divorce in the future. Resolution, the organisation for family lawyers and other professionals in England and Wales, commissioned the ComRes poll of over 4,000 British adults to mark its second annual Family Dispute Resolution Week.

Mediation, arbitration and other forms of alternative dispute resolution (ADR) provide a cost-effective and faster alternative to costly and time-consuming court procedures. A greater emphasis on ADR will provide the government with the ability to make necessary savings whilst helping to ensure families avoid long, drawn – out disputes, which can have a lasting harmful impact on the adults and children concerned. ADR solutions currently available to families include the family arbitration scheme developed by the Institute of Family Law Arbitrators (IFLA).

Anthony Abrahams, CIArb Director General said:
“It is deeply concerning to hear of the lack of awareness amongst families about non-court based dispute solutions. With the family court system in England and Wales under increasing strain, a greater focus on ADR is essential to make the family justice system more effective. Such solutions as the IFLA’s arbitration scheme have a major role to play in settling family disputes.”

“The government has long stated that it wants the family justice system to work better for families and put children’s needs first at all times. Whilst we welcome their commitment to mediation and other forms of dispute resolution as an intrinsic element of a more effective family justice system, it is clear more needs to be done to raise awareness of such processes. We will continue to work with government and bodies such as Resolution to achieve this.”

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Fit for Purpose?

 

Going to court is not a simple task. Nor is it made easy.

With that in mind, I have put together two scenarios – to ask one question: are our courts fit for purpose?

Scenario 1

A client’s typical day in court starts shortly after dawn, with the journey to the court centre. As courts sit in town and city centres, locating the building may be a small problem, but finding parking will be treacherous. Since there has been no planning requirement for the provision of court parking, bring plenty of loose change, and be prepared to dash back to your car at lunch time to feed a meter.

The next deadline is at 9.00 am to meet with your advocate.

Allow time to progress through security. Some court centres sport a queue that snakes back through the rain. Join the end of this, but remember to bring your umbrella. Make sure that you leave anything metal behind, and do not have a camera – for some courts may even confiscate your phone. The bigger your bag, the longer the task, so travel light.

Once access to the court centre is achieved, approach the large notice board of cases, listed by court or case number – rather than alphabetically. Deciphering the list is an art, honed over years of practice, so you may find this daunting. You will need your glasses for the small print. But do not rely on the list. Your case may not be there, and if it is, it may be moved. After all, the list is prepared for the listing officer rather than the court users.

The court building is on several floors, with courts arranged randomly. Court 1 may not be where you think it should be. Court 14 could be on any floor, or even between floors. You may choose to head for the restaurant – but beware – the metal seats are challengingly fixed to the floor, and the fare may be reminiscent of prison food.

Finding your advocate is the next difficulty. If counsel has been instructed on your behalf, you will probably meet your barrister for the first time at court. The art is to locate a court where you believe your case is listed, and to wait expectantly. If the barrister has other cases that day, your wait may be long. If not, question how he or she can make a living on the basis of your fee.

Having met with your barrister comes the next challenge – that of finding a room in which to confer. Pressing through a sea of clients and lawyers, you will peer into room after room, only to find that you end up in a corridor. Yes, conference facilities are not what you would expect.

If you have the time and space to speak with your advocate before the hearing, be prepared for him or her to disappear and re-appear – to speak to the ‘other side’ or to finish another case in another court. This is normal. Bring a book to read. Beware the coffee machine – you may need your change for top-up parking, and you certainly will not want to undertake the tortuous journey to find the toilets.

Of course, this is all to be worthwhile if your case is dealt with at this visit. When your advocate returns to tell you that the court has risen for lunch, be not too disappointed. But if the list proves too long, the judge has to leave before the close of business, or your case does not have an allocated judge, then your case may not be reached at all. By way of consolation, you will be well practised for the next time.

Scenario 2

Both you and the ‘other side’ have opted for a private court hearing (an arbitration). When your solicitors arranged this they even gave you a choice of judge. You were able to glance through a glossy brochure or check them out on line. If your case is big enough, you may even get to meet the judge beforehand.

The location for your arbitration was a matter of choice – perhaps your solicitors’ board room with the palms and recessed lighting. Your car safely in the car park, you take the lift to the coffee lounge where you greet your chosen barrister and tidy up the last minute details of your case.

The arbitration starts on time, with introductions and clear ground rules explained. Most of what you wanted to say has been written down in advance, and the arbitrator asks you a few questions for clarification. When breaks are needed, they are taken. Everything is covered, and you conclude the day in good time to miss the traffic. At your request, a written judgment will be emailed to you and your solicitor, together with an award where appropriate.

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In my previous blog I raised the prospect of the privatisation of the public court system – hiving them off to the public sector. Sarah Vine of the Guardian may have got it almost right, save that the Ministry of Justice needs to do nothing more than it is currently doing – namely scenario 1: running courts that are not fit for purpose.

With the Arbitration Act 1996, and the barrage of judicial support that is given to arbitration awards, it seems more likely that clients – in the civil, commercial and family sectors – will simply vote with their feet and take the better option.

Mediation and Private Law Update

After one of the hottest days of the year so far, and being parboiled at court, chambers, or in the office, it was always a ‘big ask’ to expect a crowd for the latest of the Dere Street Barristers Family Team Lecture Series.

However, Ross Lee on Family Mediation, and Karen Lennon’s Private Law Update (together with two CDP) proved to be more than a sufficient draw.

Yesterday afternoon’s session was held at the Royal York Hotel, right in the centre of York and within jogging distance of Dere Street Barristers South premises in Toft Green.  From the windows of the Crown Room, the Yorkshire Wheel provided an elevating backdrop to this fascinating lecture.

Ross Lee opened the proceedings with a potted history of the developments in mediation – from the early 1990’s of Lord Irvine and Lord Woolf:   Halsey v Milton Keynes NHS Trust (2004) EWCA Civ 576 – to ADS Aerospace v EMS Global Tracking (2012) EWHC 2904. It rapidly became clear that family mediation, from its tentative start, is now becoming central to the process of resolving disputes concerning both children and finances.

Naturally for a Family Group Lecture, Ross Lee’s principal focus was on the development in family law – addressing the contact activity direction to attend a Mediation Information and Assessment Meeting (MIAM) under s11A Children Act 1989 and r.3 Family Procedure Rules and Practice Direction 3A  – Pre-Application Protocol for Mediation Information and Assessment 3A. This he set in the perspective of the Law Society’s response to Norgrove. As a group we explored the will of the courts to apply r.3 actively, and concluded that the district bench still has some distance to go.

This raised the question of compulsory mediation – not simply in private family law matters, but in financial remedy proceedings.  ‘Expecting’ and ‘requiring’ attendance at MIAMs are two different concepts arising from differing cultures. Attenders appeared to favour an element of compulsion in relation to the mediation process.

Finally, Ross Lee addressed the rise and use of Arbitration in family proceedings – opening the door to the private and confidential resolution of family conflicts. Is this the beginning of ‘private courts’ for family conflicts? Ross drew our attention to AI v MT (2013) EWHC 100 (Fam) where between paragraphs 26-37 Mr Justice Baker considered the use of arbitration in relation to proceedings involving children.

 

Karen Lennon updated attenders on CW v SG (2013 EWHC 854 (Fam), W (Children) (2013) EWCA Civ 335, AB v BB (2013) EWHC 227 (Fam) and Re H-L (A Child) (2013) EWCA Civ 655.

CW v SG and W (Children) concerned applications relating to Parental Responsibility, and when – and in what circumstances – this could or should be terminated. Karen Lennon drew our attention to the conflict of approach between the cases and the difficulty practitioners may encounter in this area.

AB v BB concerned the risks to children of a direct contact order with their father. In this case, mother gave evidence by video link and the court balanced the father’s Article 8 rights with the risks arising from contact. The case has significance arising from Mrs Justice Theis’ test at paragraph 13.

Re H-L (A Child) concerned the appointment of experts and R.25(1), a case featuring Janet Bazley QC and Carly Henley – both members of the Dere Street Barristers Family Team who were commended by the court for “the helpful way in which they have assisted the court in teasing out both the detail of this case and the wider implications of the new rule”.

Importantly, Lord Justice McFarlane prefaced his judgment with these words,

“In preparing the judgments which are now being handed down I have had the benefit of reading in draft the judgment of Sir James Munby P in which he sets out general guidance upon the interpretation of Family Procedure Rules 2010, rule 25.1 which restricts expert evidence “to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”. I would wish to associate myself, word for word, with the guidance contained within the President’s judgment in this case. The judgment which I now give seeks to apply the approach described in the President’s judgment to the facts of the present case.

The court made reference to Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [120], [125]. R25(1) it was said “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

So, now we know exactly what the court expects!

Of importance, Karen Lennon asked us to consider the case in relation to private law proceedings where experts may be required and where the same test would be applied.

This, the second of nine lectures in the current series, was a superb resource, saving those attending a considerable amount of work in sourcing these important cases and materials. Discussions continued after the lecture, until the final pod of the Yorkshire Wheel came to rest – a fitting end to two fascinating lectures.

The Headmaster’s slipper

A post dealing with filing court orders  – the unpaid work of barristers

In a previous posting Family Proceedings on the Move we caught sight of Judge Stephen Alderson’s pincer move concerning the drafting of court orders by advocates.

With the imminence of the Single Family Court, and the critical time limits by which it will be judged, a further new direction has been given concerning the filing of orders. I have set it out in full below, with some highlighting.

When many years ago, this blogger came to practice at the Bar, the judges drew their own orders – for that was a part of their job  – for which they were paid.

Now, it seems, it is a task for the advocates – for which in publicly funded cases, they are not paid. No doubt the President would deem it to be part of the not-inconsiderable ‘pro bono’ work of the 21st Century Bar.

What is even more questionable is the way in which the burden shifts deftly from the Applicant  ‘litigant in person’  – to the privately paying Respondent.

So, not only does a represented party bear a responsibility to prepare the case summary, court documentation and bundles, but now to spend further time after the case has been completed in drafting the orders. Those who responsibly seek representation, end up paying the whole cost of case management.

Of course, counsel and solicitors can and do prepare perfectly agreeable orders when needed, but there are cases where a draft order limps back and forth before a reluctant agreement is reached. That is because the advocates have to unravel from the judgment what the judge really intended – and sometimes this can be a mind-boggling affair.

When we listen to a judgment, we take from it a differing emphasis or ‘spin’ , and this may find its way into the order that we draft. Other times, the judge may fail to cover a point that could have been picked up by the judge had she or he drawn up the order. In such cases it is left to the battle lines of counsel and solicitors who may have very different views from the judge.

But for now, it is to be our job. Do it to pleasure the judges. Fail – and it appears that you will be punished on costs. And you don’t want that!

Submission of draft orders for approval in the Single Family Court

This direction applies to the High Court and all of the County Courts sitting in the area of the jurisdiction of the Northumbria Cluster and North Durham Courts.

It has become apparent that on a number of occasions Counsel, advocate Solicitors and/or instructing Solicitors have been responsible for delay in submitting draft orders for approval by the Judge when required to do so and this has caused disruption to the management of cases in a proper time frame. A considerable amount of Court time is being spent pursuing Orders causing delay in producing sealed Orders for the parties.

While it is accepted that in a few individual cases that the Judge and the Advocates may make separate arrangements, at the Advocates request, this direction sets out the expectations of the Judges to apply automatically in all Family cases.

1. In all cases the responsibility to draft orders and submit them to the Court lies initially with the Advocate/instructing Solicitor for the Applicant however if the Applicant is not represented, then the responsibility falls to the Advocate/instructing Solicitor for the First and then the subsequent Respondents in order unless all of the parties are unrepresented.
2. In all hearings before a High Court Judge, a Circuit Judge, Recorder or District Judge the Advocate/instructing Solicitor shall submit a draft order for approval within 48 hours.
3. In the case of final hearings of applications for a Financial Remedy under Part 9 of the FPR 2010 the Advocate/instructing Solicitor shall draft and submit the Order for approval by 4:00 pm on the seventh working day after the close of the hearing.
4. All draft orders following a hearing shall be submitted by e-mail in Word format (not PDF) to the relevant Court as listed below or by agreement to the individual Judge directly.
5. If an Advocate/instructing Solicitor has not submitted a draft order as above or as individually agreed then the matter will be referred to the Judge and if necessary listed for a mention before the Judge for an explanation of the delay and the costs of that hearing will be at large.

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It’s your operation

A post dealing with quality service and how we can evidence that we are getting it right

This week, surgeons are being asked to publish their ‘survival’ figures.

Outcomes following an operation may, do not necessarily reflect the performance of it. What about the Bar, is the same is true?

Some cases are won or lost by the advocates. More often, outcomes are less amenable to objective analysis – depending on the facts of a case, the evidence in support, the reliability of witnesses, the experience of the judge, and the interpretation of law – a matter on which lawyers and judges habitually disagree.

Over my 34 years of winning cases, and occasionally losing, I have found that rational or empirical approach to gauging success is not the best way to establish performance. Whilst ‘the outcome’ is a measure of ‘performance’, the illusive ‘outright win’ is increasingly rare outside the jury trial. Especially within the family courts, ‘wins’ are hedged with compromise – making an objective assessment from outcomes, impossible.

The faithful reader will recall an earlier blog on QASA. There Lord Justice Moses (the blogger’s favourite) criticised the barrister assessment by judges, saying  that the advocate’s desire not to offend a judicial assessor would lead to defensive advocacy. “The need to be marked, to move up a level or maintain one’s grade is deeply inimical to the proper relationship between advocate and judge”.

Even if  judged by the judges, QASA simply categorise lawyers into bands of practice, rather than speaking to the real question of comparative quality of service. Publications, such as ‘Legal 500’ (of which the blogger was a starred entry) have had a go a this, with their “good fighter”, “doughty opponent”, “a determined advocate” categorisation. But does the entry fee to the publication determine the entry? Whilst the blogger did not pay for his accolade, we know of those who in various ways have paid  for theirs.

With the exponential growth in the number of court advocates, the development of direct public access to the bar, and the decreasing support of a solicitor’s representative at court, there is no adequate way of ensuring a reliable peer assessment of advocates. Even if there were, advocacy is just one part of a more comprehensive service provided by the lawyer.

The blogger believes that the most reliable assessment come from ‘client satisfaction rating’.

Most clients know instinctively whether they have a good case or not, and those that do not, need to be told by their lawyer. Expectations should be managed competently, so that, whilst ‘win or lose’ outcomes remain important, they are not the sole criteria of success.

I have sought client feedback over the last seven years in almost every case I have undertaken, and often throughout my handling of the case. At key stages – usually after an initial meeting, and at the conclusion of the case – I test out the client’s responses to my service by simple criteria.

• ‘Before we met, on a scale of 1 – 1o, how did you feel about your case?’
• ‘On the same scale, now that we have spoken, how are you feeling about your case?’
• ‘To what do you attribute the difference in your scores?’
• ‘On the same scale, how adequately am I meeting your needs?’
• ‘On what basis do you arrive at the score?’

Some lawyers may deprecate this approach, on the basis that it is ‘self-serving’, unscientific, or susceptible to manipulation. Of course, it is difficult to monitor. Others may fear the outcome of such interrogation, especially following a lost case.

My experience has been almost totally positive from asking the questions at appropriate moments. It demonstrates sensitivity to the client’s feelings about their case and representation. It says, “I am listening to you, and want to take on board what you have to say”.

It also encourages the sort of feedback that is commonly sought by other service providers. The receiver of feedback can learn from what is said – to make improvements in their practice for the next time. For the giver, it highlights and coalesces their sense of satisfaction with the service they have or are receiving.

Over the next five years, we as individual practitioners (rather than the profession as a whole) will need to demonstrate and justify the quality of our services. On a web search, clients will expect to see evidence of our performance; and the Bar Standards Board and Solicitors Regulation Authority will require proof of what we assert.

Privatised courts – where to, where from?

The Times, May 28 scooped the story. If not subscribed to The Times Online, the reader should turn to Ben Bryant of the Telegraph to pick up the storyline, and Owen Bowcott of the Guardian who digs deeper into the Ministry of Justice denials.

The story turns on a possible saving to the Ministry of Justice of £1 billion per year, brought about by the ‘wholesale privatisation’ of the courts, thus freeing them from Treasury control. Private investment and means-tested payments would relieve the taxpayer of the long standing burden.

Sarah Vine of the Guardian also enters the fray, fingering the velum of the fourteenth century Magna Carta, and concluding, “If Grayling has his way, the only heads left above the corporate water will be the judges”.

Whilst the media focus is understandably on the prospect of corporation – such as G4S running the court service and in time perhaps even employing the judges – this blogger is more interested in the imminence of something more subtle.

Historically, the state has run a monopoly on the provision of justice including the appointment of judges whose offices followed revenue, and would be granted to those who supported the monarch.  C J Sansome’s sixteenth century barrister Matthew Shardlake in the novel ‘Heartstone‘, gives a graphic description of the judges of the ‘Court of Wards and Augmentations’, the courts that dealt with wardship (equivalent to our modern day Family Courts).  After the Dissolution of the Monasteries and the seizure and selling of monastic lands, the ancient ‘Office of Wards’ was abolished and replaced by the Wardship court which checked the value of lands subject to wardship, and the feodaries negotiated with applicants for the wardship (and the land) of minor heirs. Some were granted to the children’s families, but those more valuable would be awarded to the highest bidders.  Bringing revenue to the King, “Wards and Augmentations would sit all summer, observed Shardlake. Justice has always been the younger brother of money, whether in the hands of the client, the lawyer or the state.

Yet this blogger senses that the issue that most concerns government is not the running of courts, but the sheer scale and cost of public justice.

Hiving off the court buildings and administration to the private sector could undoubtedly result in savings – you only have to look at prisons to see this. It could also provide a better service deal for court users. How often as clients or advocates have we wasted hours, or even days, in waiting ‘our turn’ in the overstretched court list before a judge who is expected to react to information dished up on the morning of trial? The private sector could not get it more wrong.

The real point of reform is that it is the public that ends up underwriting the cost of other people’s disputes, no matter how unreasonable. The ‘issue fee’ no way reflects the cost of running the court and the salary of judges. For genuine civic disputes, this is a necessary social cost. But for private disputes, arguments concerning spousal assets, and company and commercial disputes, the subsidy by the public is unacceptable.

Recently retired Lord Justice Sir Alan Ward summed up the problem in a noisy floor dispute, “Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing”.

As other alternatives are available, why should the taxpayer fund big-money divorce litigation,  the bankers’ dispute, or the noisy floor? The litigation costs of these cases are enormous, but the parties are really just paying their lawyers bills, rather than the judges’ salaries and the public cost of running a court.

The government’s agenda is to shed as much work from the state court system as possible. These days, courts clearly do not pay.

There is, of course, the minor problem of Article 6 European Convention of Human Rights, providing “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. Perhaps this too is an underlying reason why some politicians are keen for repeal.

So, the blogger will forecast the next steps.

Commercial, company and most civil disputes will be directed towards arbitration, mediation and expert determination at first instance. These processes will be the ‘gate keepers’ for entry to the courts. The ‘reasonable time’ for determination of a dispute will run from the point where the alternative resolution mechanisms have been exhausted.

Likewise, family disputes involving children and money will be referred to alternative dispute resolution – where most will be expected to be solved. Only then, and on sanction of costs, will the courts intervene. The Family Court experiment with public law cases will flounder in delays exceeding 26 weeks and be replaced by tribunals.

Criminal cases will be handled by increasing use of community resolution processes, such as self-referral, the acceptance of voluntary penalties and restorative justice, offenders knowing that these will deliver the best deals. Only the hardened criminal for whom prison is inevitable will the door to the dock opened.

Of course we will still pay for the judges, but a slimmed down bench, with reduced pensions, and the small accompanying coterie of cut price lawyers will be cheap in comparison.

Perhaps Justice Secretary Chris Grayling has a point…..?

Cost of barrister regulation soars

By Neil Rose of Legal Futures

A post dealing with the cost of regulating barristers

The Bar Standards Board (BSB) is already projecting a £161,000 overspend on its 2013-14 budget, which itself is £1.2m (or 30%) higher than the previous 12 months, Legal Futures can report.

The BSB’s financial year only began on 1 April but the recent meeting of its main board heard that a lack of budgeted resource for education projects – and in particular the Bar course aptitude test – is responsible for around 60% of the forecast overspend.

The BSB and Bar Council agreed the higher budget for this financial year after regulation ate up £460,000 of the Bar Council’s reserves in 2012-13.

The £1.2m increase is mainly because of “the pressure of implementing the regulatory standards framework”, according to the BSB’s business plan, which was published last month.

The framework is laid down by the Legal Services Board (LSB) and has four key pillars: outcomes-focused regulation, risk assessment, supervision and enforcement. Each regulator has to show sufficient capacity and capability to regulate in those key areas. The LSB’s assessment of how the BSB is currently performing against these is due to be published shortly.

The increase will be offset in part by an expected rise in non-practising certificate fee income of £432,000 to £1.8m. It appears that the Quality Assurance Scheme for Advocates accounts for this. The BSB is expecting income of £452,000 for initial accreditation applications, and a further £35,000 from barristers progressing up the levels.

The two main heads of the BSB’s expenditure are governance/management (£1.6m) and disciplinary/enforcement activities (£1.4m).

When premises costs of £678,000 and shared services of £2.1m are taken into account, the total cost of regulation for barristers is £8.2m. The LSB is to launch a major investigation into the cost of regulation across the legal profession.

Meanwhile, Alistair MacDonald QC has been named the vice-chairman-elect of the Bar Council following a contested election. He will take up the post on 1 January 2014 with a view to becoming chairman a year later.

Mr MacDonald is co-head of New Park Chambers in Leeds, which has just lost a bid to take on an ex-chief constable as a pupil without paying her. His practice is now principally in crime although he used to do a broad spread of work including personal injury and administrative law. He is the leader of the North-Eastern Circuit and has sat as a Recorder in crime and civil since 1995.

Nicholas Lavender QC, who practises commercial law from Serle Court Chambers, will be the 2014 chairman.

Also, the Bar Council has finally appointed a new chief executive, two years after David Hobart left to take up the same role at the City of London Law Society.

Stephen Crowne, who will take up the post next Monday, was most recently as senior director, global education at IT company Cisco. Formerly a senior civil servant, before Cisco he was chief executive of the British Educational Technology & Communications Agency, the government agency charged with promoting technology in learning.

The appointment panel included representatives from the Bar Council and Bar Standards Board.

Why I have a problem with the Family Law Bar Association

A post dealing with the thorny issue of public funding our private disputes

The ‘May fees update’ from the Family Law Bar Association has now hit our email boxes.

The FLBA warns us in no uncertain terms to take heed of the proposed changes for public funding in criminal cases set out in the government paper ‘Transforming Legal Aid: delivering a more credible and efficient system‘ , and to see this as a “far reaching” proposal that may go on to deny ‘the most vulnerable members of our society access to specialist legal advice’.

Clive Baker, in his detailed response to the government paper links back to the effect of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). There  he cites a cut of £350m per year affecting 600,000 people. He suggests that  LASPOA was the start of ‘work in progress’ to trim the legal aid budget for family work rather than the end of the matter.

So, has the FLBA got it right. Is Armageddon just round the corner for both the legal profession and the public they serve?

Chris Grayling, Lord Chancellor and Secretary of State for Justice subscribes to a simple view concerning the funding of criminal cases,

“Over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world”.

The blogger has memories that exceed the ‘past decade’ and is tempted to say that since public funding has been available ‘it has always been thus’. Indeed, the blogger’s favourite legal friend Matthew Shardlake interfaced with the same frivolous claims, wealthy criminals and exploitative lawyers in the 16th century. It could be said that ‘where there are lawyers, there will always be conflict’.

The doomsday practitioners gather sustenance from Lord Justice Ward in Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 23416, who at para 2 addresses one of the consequences of withdrawing public funded legal advice:

“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. …. how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved”. ” It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. …. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

But an essential question is not whether the court is able to cope with litigants in person, but whether the system should direct them there as the most appropriate venue to resolve their dispute?

Blog readers by now will know of my views on the importance of mediation and private arbitration. You will also have read of my views about the relevance of an adversarial process in family disputes, and questioning the need for parents in conflict to have ‘party status‘.

Has Lord Justice Ward missed the point as he reaches his 18th year aboard the Court of Appeal? Is it necessary, or even advisable to have lawyers directing proceedings from the beginning of a dispute to its end? And should the public carry the bill?

Should he not reflect back on Lord Woolf’s comments in Cowl v Plymouth (2001) EWCA 1935 at para 25:

“Without the need for the vast costs which must have been incurred in this case already being incurred, the parties should have been able to come to a sensible conclusion as to how to dispose the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible”.

There is something singularly unattractive about a profession as well paid as ours, raising principled arguments concerning the withdrawal of our publicly funded income.

Whilst the points are well made, surely the art now is to raise them subtly, record them, and work positively and creatively with a popular, democratic idea. Should it fail, of course we will be there to pick up the pieces.

Stobart Barristers

A post to look at the Eddie Stobart subsiduary, Stobart Barristers which are to provide direct public access in criminal cases.

‘Stobart Barristers’ was formed last year, charging fixed fees and using paralegals to instruct their team of barristers. Their legal director Trevor Howarth said,

“We can deliver the service at a cost that’s palatable for the taxpayer, our business model was developed with this in mind”

“We …are well known for taking out the waste, and the waste here is the duplication of solicitors going to the courtroom. At the moment there are 1,600 legal aid firms; in future there will be 400. At Stobart, we wouldn’t use 10 trucks to deliver one product.”

Trevor Howarth has developed some insight into the legal process. He is shortly to face trial for contempt of court , although it has to be said that the background to the allegations is decidedly murky. But, no doubt it places him in an informed position to comment on the provision of legal services.

In my previous blog ‘The Price is Right we looked at the impact of third party investors moving into the legal market place. There, holding company LawVest introduced their Riverview concept, causing both consternation and interest amongst legal professionals. Other recent entrants include Parabis.

The Bar Council, spearheaded by current Chair Maura McGowan, has launched its 38 degrees petition to oppose the move to competitive tendering for publicly funded criminal defence contracts. Whilst understanding the potential for problems, the blogger does not share the Bar Council’s calamity vision.

We are, after all, dealing with public money, a finite resource. A proper legal service for the defence of criminal charges is essential, but not at unsustainable cost. The proliferation of criminal defence practices during the blogger’s career has not added to the quality of representation, as neither has the higher rights of audience for solicitors improved the legal landscape.

Is the time not right for those who spend public money being more accountable for the costs?

With direct public access to an expert barrister, should the Bar not be focusing its attention on obtaining and managing public funded contracts, rather than supporting the disparate high street solicitors practices of the past?

Closed doors in public courts

In my last posting ‘£25 m mediation budget following the death of legal aid‘, I mentioned the case of W v M (2012)EWHC 1679 (Fam), with the forward thinking judgment from Mostyn J.

It was only after writing, that it occurred to the blogger that Sir Nicholas Mostyn‘s judgment could hold the key for a dramatic development for future legal services in England and Wales.

When an established and credible ‘private process of dispute resolution’ is available through mediation and private arbitration, why should our system of public justice ever work behind closed doors?

Perhaps now is the time for the former Presidents of the Family Division Mr Justice Potter’s 2008/9 vision and Sir Nicholas Wall’s endorsement, to become a reality? Maybe now parliament should be preparing to update the House of Commons Standard Library note?

Nicholas  Mostyn is not a stranger to this line of thinking. In M vM & London Borough of Sutton he lifted the injunction on the Sunday Telegraph columnist from reporting proceedings.

The current President, Lord Justice Munby is on record with even more radical views,

“Both principle and pragmatism demand that we open the family courts, that we drastically relax the present access restrictions.

“But affording access to the family courts is not alone enough. The answer, if I may be permitted to adopt the former Lord Chancellor’s language, is that we need both more people going into the family courts and more information coming out. Each of these is essential; neither alone is sufficient.”

“I am not talking merely about judgments which are thought to be reportable because of their perceived legal interest. Releasing for publication only those judgments which are ‘reportable’ means that the public obtains a seriously skewed impression of the system. What one might call ‘routine’ judgments in ‘ordinary’ care cases and private law cases should surely also be published – all of them, unless, in the particular case, there is good reason not to. The second point leads on from the first. It is not only High Court judgments that should be published in this way. Why should not County Court judgments also be published?”

More recently, on 22 February 2013 at the Family Law Bar Association dinner he said,

” I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice. Work, commenced by my predecessor, is well underway. I hope to be in a position to make important announcements in the near future”.

And today, we have new practice guidance in relation to public access to committals for contempt of court.

In W v M Sir Nicholas Mostyn said,

“Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much-to-be-welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed”.

Does Sir Nicholas’ obiter sound the rallying call for imminent change?

‘For private proceedings, choose a private process. If you come to public courts, increasingly expect justice that is open to public scrutiny’.

£25M mediation budget following the death of legal aid

Lord McNally, Family Justice Minister

April 1 2013 saw the inception of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, one of the most far reaching legal provisions in a generation.

Some commentators see the change in the legal aid rules as a disaster.

Since April, your blogger, wearing his hat as barrister and advocate, attends court to face increasing numbers of litigants in person – and cases out of control. For the judges it is more stressful. They have the immensely difficult job of case management with parties that fail to understand the rules and question the reasons for them.

And of course, there are those who cannot contemplate representing themselves and simply feel shut out of their legal remedies. The courts were not ready for this. There is some help from the Bar Council’s guide, and more from Lucy Reed‘s Family Courts Without a Lawyer publication. But almost certainly, this will not be enough to avoid degrees of chaos.

The Ministry of Justice has however allocated £25 million (an increase of £15m) to support family mediation. Lord McNally, Family Justice Minister expects mediation assessment meetings to provide the answer – providing important information about facilitation and allowing parties access to mediation services. McNally contends that, with mediation, the average time to resolve property and financial remedy disputes drops from 435 days to 110 days, together with the accompanying reduction of cost and stress to the parties.

Leading up to, and since 1 April, new mediation services (such as the pilot at Teesside Combined Court Centre) and the blogger’s service ‘Divorce Without Pain‘ have sprung up to deal with the increase in need for mediation. It is too early to tell whether these schemes will flourish, and indeed whether parties to a dispute will favour specialist lawyer mediators.

Arbitration has likewise come to the fore as a method of dealing with property and financial remedy disputes. For several years these methods have been tested in Ontario, Canada and Australia – and introduced two years ago in Scotland through its Family Law Arbitration Group Scotland. Vancouver arbitrator Georgialee Lang, speaks of the “disharmony, conflict, lengthy delays and outrageous legal fees.” arising from the current court systems for family law – and describes courts as “the worst place for couples to resolve their divorce issues”.

The English Family Law Arbitration Scheme set up by the Institute of Family Law Arbitrators is now celebrating its first anniversary, and reports steady progress, with numbers of trained arbitrators reaching double figures. It is still unclear how the courts will enforce the arbitration awards, although the Arbitration Act 1996 is susceptible for the purpose.

The courts too appear to favour the advent of arbitration in such disputes. Although W v M (2012) EWHC 1679 (Fam) relates to a Trusts of Land and Appointment of Trustees Act 1996 dispute, Mostyn J at para 70 said “Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much-to-be-welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed”.

In T v T (2012) EWHC 3462 (Fam) Nicholas Francis QC concluded that where a married couple had entered into a premarital agreement with an arbitration clause, the English court would not restrain the husband from seeking to enforce arbitration in the USA.

Cases such as W v M and T v T set the trend. Now what is needed is the culture change. It will be when parties to a dispute think ‘mediation’ or ‘arbitration’ as the first call, that we will see the proper rise of private dispute resolution rather than reliance on the courts and the lawyers that fan the flames.

Atherton gun review – legislation within our sights?

A post questioning whether shotgun certification should be a privilege, not a right

Michael Atherton, a 42 year old taxi driver with no previous criminal convictions, shot and killed his 47 year old partner Susan McGoldrick, her sister Alison Turnbull, and her 24 year old daughter Tanya Turnbull on New Year’s Day 2012, before shooting himself in the head.

Atherton, who was authorised to hold six weapons – three shotguns and three rifled firearms – had an ordinary history. He was a keen angler and took up shooting as a sport. He had been involved in four incidents of domestic conflict dating back to April 2004, and his weapons were removed in September 2008 when in a drunken state it was said that he “threatened to shoot his head off”. This he subsequently denied. He was never charged. His guns were returned to him six weeks later on the proviso that he behaved responsibly. There was no ‘meaningful review’ of his suitability as a certificate holder.

The press and public are now reeling following Durham Coroner, Andrew Tweddle’s careful scrutiny at Crook Civic Centre in the inquest into the deaths that concluded today.

Deputy Chief Constable of Durham Michael Banks was both contrite and realistic about the force’s flawed decision and decision-making process. Independent Police Complaints Commission spokesman Nicholas Long said: “Not only did the IPCC investigation uncover a wanton lack of intrusive inquiries by Durham Constabulary, it also identified poor practices which reflect woeful record keeping”. “While some of the failings were down to individuals, the underlying issue was Durham Constabulary’s lack of adequate systems and safeguards.”

On BBC Radio 4 PM programme, Simon Clarke of the British Association for Shooting and Conservation placed the responsibility for the incident on Durham Police for not revoking Atherton’s licence and certification, speaking of “their abject failure” and “breaking the bond of trust with the public”. He spoke of “a failure of policy, guidance and procedure”. Clarke recommended that a centralised, specialist authority should replace the current decision making process of the 43 separate police authorities – to administer licensing in a “clear, and most importantly, a consistent way”.

The question remains whether the gun lobby is right in seeing the issue as one of ‘interpretation‘ of existing gun law – or whether we should now be looking at root and branch changes to it?

Getting a gun certificate

• The application form asks specific questions about why you want a gun.
• The form requires the applicant to show “good reason” for wanting a gun.
• The criteria are less tough for shotguns than for firearms which must only be used for specific purposes in specific places, including deer stalking or sports shooting on an approved range.
• Independent referees provide confidential character statements in which they answer questions about the applicant’s mental state, home life and attitude towards guns.
• Officers check the applicant for a criminal record and speak to the applicant’s GP for evidence of alcoholism, drug abuse or signs of personality disorder.
• The certificating authority must be satisfied that prospective shotgun holders have a secure location in which to keep the guns, typically a dedicated gun cabinet.
• Each certificate is valid for five years.

Whilst the firearms legislation in England and Wales was amended in 1997 following the Dunblane enquiry (see my previous posting in December), the fundamental policy with regard to the holding of firearms and shotguns has remained unchanged since 1968.

Under the Firearms Act 1968, two main categories of weapons are defined: firearms (other than shotguns), and shotguns.

S.1 of the Firearms Act 1968 makes it an offence to ‘possess, purchase or acquire’ a firearm without a firearms certificate. The criteria for determining whether an individual is to be deemed suitable is not defined. S.38 of the Firearms (Amendment) Act 1997 sets out some parameters, namely ‘fit to be entrusted’, ‘good reason for possession’ and ‘possession without danger to the public safety or the peace’. It is then for the individual licensing officers within the 43 police authorities to interpret the criteria.

The criteria for granting a shotgun certificate is less strict. Here, so long as the applicant is not a prohibited person, the only test is that of  ‘danger to the public safety or the peace’. The issues of fitness to be entrusted, and good reason for possession are not considered.

Hidden away in s.11(5) of the 1968 Act a person may, without holding a shotgun certificate, borrow a shotgun form the occupier of private premises and use it on those premises in the occupier’s presence’. In layman’s terms, this means that a totally unauthorised and unsuitable person may have legitimate access to and use of a shotgun in circumstances where the only control is the ‘presence’ of the certificate holder.

Way forward

The historic reasons for differentiating ‘fireams’ and ‘shotguns’ made sense in 1968, and perhaps even in 1997. Then the legitimate use of shotguns compared with the numbers of shotguns out in the community and the circumstances of their use placed them in a different category. Is this now still the case?  Should the tests for grant of certification today remain different?

More importantly, is the fundamental test for a grant of a certificate (whether for firearm or shotgun) still appropriate?

Right as opposed to privilege

S.38(1) of the 1997 Act requires the chief officer of police to grant a firearms certificate unless the criteria (see above) are not met. This legislates for a qualified ‘right’ to possess a firearm. Likewise S.28 1968 Act states that a shotgun certificate ‘shall be granted‘ unless the applicant fails the two tests.

It is here that the blogger senses that he parts company with the British Association for Shooting and Conservation.

Not condoning the failures of the Durham Police firearms regime in 2008; with 7 years of unflawed experience of firearms regulation for another police authority, I have some sympathy for them. At what stage will – and more appositely then would – a court be persuaded to ‘remove a right’ to possess a firearm or shotgun?

Having conducted or advised in 31 appeals on behalf of both appellants and police authorities, I cannot be so sure as Mark Groothuis (firearms advisor), that had Atherton’s certificate been revoked in 2008, an appeal by him would not have been successful. Much water has ‘passed under the bridge’ since 2008.

Now is the time for the public and commentators alike to question ‘the right‘ of individuals to hold weapons. The burden should not be on the police to prove that an applicant is unsuitable for any reason, and that the ‘right’ should be removed; but should be fair-square on the applicant to demonstrate their suitability. The ‘right’ to possess a weapon should be replaced by the ‘privilege’ of ownership.

Only then will the public have the level of protection from the ‘Athertons’, the ‘Hamiltons’ and the ‘Lanzas’ that it deserves.

Since leaving the Metropolitan Police Service after a short but highly decorated police career, Stephen Twist has kept a close professional network with police services and police officers throughout the county. He advises constabularies on professional conduct issues, administrative law matters, licensing (liquor and firearms) and a range of other topics such as data protection and human rights. He is best known in relation to police misconduct cases where Stephen advises and represents both Complaints and Professional Standards Departments and individual police officers. He has had involvement in some of the most serious, sensitive and difficult police misconduct cases in the North of England. He sits as an independent legal adviser to police misconduct panels. 

Whistleblowing, confidentiality and privilege in mediation

Following disclosures by David Bowles, former chair of the United Lincolnshire Hospital Trust, Jeremy Hunt, Health Secretary, has warned NHS bosses not to block ‘whistleblowing’; and the government is to investigate the effect and import on such disclosures of the Public Interest Disclosure Act 1998 (PIDA).  

Is the Public Interest Disclosure Act too restrictive? Where there is a public interest need to protect those who disclose information that otherwise should be confidential, should it go further? To what extent is the public interest served by ‘gagging clauses’?

Some would see this as simply an employment law problem. Yet, daily, mediators in many disputes apply confidentiality clauses without necessarily addressing the ethical issues.

Background to confidentiality

Mediation was always ‘a voluntary, without prejudice process, conducted confidentially and managed by an independent, impartial neutral person’.

The Civil Procedure Rules 1998[1] encouraged the use of alternative dispute resolution in civil litigation, especially the use of mediation. In the early days Cowl & Ors v Plymouth City Council[2] and Dunnett v Railtrack PLC[3], the Court of Appeal highlighted the importance of mediation as a ‘without prejudice’ method for people in dispute to settle their differences without outside intervention. It encouraged parties in dispute to use a process that was understood to be a confidential and without prejudice method of resolving conflict.

Mediation privilege developing?

Changes to the model, to mediation practice, and to the definition of mediation have occurred over recent years, especially with the increased use of conciliation, in which mediation is conducted by an appointed person against the back-drop of statutory regulation[4]. There, confidentiality is partially excluded on the basis that this mediation process is underpinned by a positive public law duty to address and defeat discrimination, and that the conduct of the process should be open to scrutiny.

However, the cardinal principle of confidentiality still dominates private law disputes. Sir Henry Brooke[5] said “the confidentiality axiom underlying mediation proceedings constitutes the single most important reason for parties to resort to mediation in the first place”.  Only through a heightened awareness of the issue will we be prevented from “sleep walking into disaster” on this topic. Confidentiality in the mediation process is important and (regulation) should therefore provide for a minimum degree of compatibility of civil procedural rules with regard to how to protect the confidentiality of mediation in any subsequent civil and commercial judicial proceedings or arbitration”.

In Venture Investment Placement Ltd v Hall[6], the court held that “Mediation proceedings do have to be guarded with great care. The whole point of mediation proceedings is that the parties can be frank and open with each other, and that what is revealed in the course of the mediation proceedings is not to be used for or against either party in litigation, if the mediation proceedings fail”.

In Cumbria Waste Management Ltd., Lakeland Waste Management Ltd v Baines Wilson (A Firm)[7] Francs Kirkham J said “In my judgment, whether on the basis of the without prejudice rule or as an exception to the general rule that confidentiality is not a bar to disclosure, the court should support the mediation process by refusing, in normal circumstances, to order disclosure of documents and communications within a mediation”. Later he repeated “ In my judgment, the court should be very slow to order (such) disclosure. Mediators should be able to conduct mediations confident that, in normal circumstances, their papers could not be seen by the parties and others”.

So confidentiality remains a key historic concept in the definition of mediation: the mediation process is conducted without prejudice to any legal proceedings that may follow if unsuccessful; the parties can take a ‘generous’ stance and compromise during the mediation process; one party cannot use what is said in the process against the other in the absence of agreement; parties can divulge issues to an independent neutral mediator without that information being shared with anyone else, whether present or not[8].

Agreed in May 2008 and implemented in May 2011 between the majority of member states, the EU Mediation Directive[9] was designed to regulate cross-border mediation. The directive was part of a developing process in civil and commercial disputes to move dispute resolution away from international and national litigation into local resolution methods.

The directive reflects the increasing requirement and dependence of those in the dispute resolution industry on the use of mediation. In fact national governments across the world are actively looking at introducing mediation as the ‘gate-keeper’ to courts and formal legal process. In some countries this is already the case. Before instigating any claim or remedy, parties must go through the mediation process.

Impact of the European Directive

Directive preamble (23) reads:

“Confidentiality in the mediation process is important and this Directive should therefore provide for a minimum degree of compatibility of civil procedural rules with regard to how to protect the confidentiality of mediation in any subsequent civil and commercial judicial proceedings or arbitration”.

Article 7 of the directive emphasises the importance of the confidentiality principle and the need to ensure its protection. Whilst the directive relates specifically to cross-border disputes, there is a body of opinion that would encourage national governments to adopt the directive into domestic law, creating a unified approach to mediation, whether domestic or international[10]. Will similar or identical provisions develop elsewhere in the mediation field, and if so, how will they be applied to the English mediation process?

Do we have a position?

The debate on the issue of confidentiality in relation to mediation has been re-ignited by the issue of whistleblowing disclosures. How important is confidentiality in reality?

What is the impact of ‘sharing of information’ provisions which are increasingly being required in mediation service level agreements? Should we not be addressing this (and other issues in the wider debate) before we find that such confidentiality rules are made for us by default?

Should confidentiality remain a keystone to the mediation process? If confidentiality of the process were to be removed, what will be the short and long term effects on its viability and take-up? Would there be benefits from opening the mediation process to outside scrutiny?

There is concern about the development of mediation clauses within service level contracts for mediation – requiring the disclosure of the mediation process, behaviour by parties within the mediation process, and disclosure of detail of outcomes to third parties who have not been present and party to the mediation. This mirrors the concern relating to organisations that conduct mediations when their position is not, or may not be independent of the outcomes.

Whilst this development differs from the principle of disclosure in court or arbitral proceedings, it affects the underlying principle that the mediation process should free parties to attempt to sort out their dispute privately without any come-back should their attempts fail, and without the public, or public authorities scrutinising what concessions have been made.

Earlier this year, CEDR’s working party[11] reported:

“We are convinced that confidentiality remains a cornerstone of mediation practice and needs to be observed, protected and delivered carefully so as to help parties open up to each other and to the mediator and indeed to enhance the possibility of settlement without in either case harming their case if settlement does not emerge and adjudication is later required by judge or arbitrator. The security which confidentiality generates is used to encourage greater openness and more disclosure by parties at the right stage and when they are ready”.

Clearly, there are public interest issues to be considered – not least the danger that organisations such as the NHS may use the confidentiality clause in mediation settlements to gag whistleblowers.  But how far should this go? Is it possible, in succumbing to a ‘social need or desire to know’ that the underlying integrity of mediation as a voluntary, without prejudice, confidential and impartial process may be undermined so as to remove the real advantages that mediation has historically offered?  Or, as Jeremy Hunt would have it, should the confidentiality clauses in mediation be lifted on the basis that they may at times work against the interest of the wider public to know what has gone on?

Article 7

Confidentiality of mediation

1. Given that mediation is intended to take place in a manner which respects confidentiality, Member States shall ensure that, unless the parties agree otherwise, neither mediators nor those involved in the administration of the mediation process shall be compelled to give evidence in civil and commercial judicial proceedings or arbitration regarding information arising out of or in connection with a mediation process, except:

(a) where this is necessary for overriding considerations of public policy of the Member State concerned, in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person; or

(b) where disclosure of the content of the agreement resulting from mediation is necessary in order to implement or enforce that agreement.

2. Nothing in paragraph 1 shall preclude Member States from enacting stricter measures to protect the confidentiality of mediation.

---

[1] CPR 1.4(2)(e) and CPR 3.1(2)(m)

[2] 14 December 2001: Court of Appeal

[3] 22 February 2002: Court of Appeal Costs Judgment

[4] for example in relation to age, disability and discrimination cases

[5]15 July 2008:  former Lord Justice of Appeal and Vice-President of the Court of Appeal Civil Division: per “The Mediation Directive: What Will it Mean for Us?”: Gordon Blake (2008)74 Arbitration 4 @ p441

[6] (2005) EWHC 625

[7] (2008) EWHC 786

[8] save in exceptional circumstances where a failure to disclose may result in serious harm (PIDA)

[9]Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008

[10] see David Cornes “Mediation Privilege and the EU Mediation Directive: An Opportunity?” : (2008) 74 Arbitration 4 p.395

[11] CEDR Confidentiality, a Guide for Mediators 31 January 2013   http://www.cedr.com/articles/?317

Charity Norman – After the Fall

Since my last blog entry, so many readers have asked about Charity Norman. But have they bought the book? With a little help from Richard and Judy, here is a great clip to reintroduce Charity to those who knew her, and to whet the appetites  of those who would simply love a good read.

Direct Access Revisited: a simple guide

If you were to glance back to the 20 May 2012, you would see my first blog concerning Direct Access. Some of my readers have asked me to share more insight into how Direct Access is working in practice – its potential -what to look out for – and how to develop a Direct Access practice.

The first step, of course, is to undertake the Public Access training and to ensure that you are recorded as Direct Access authorised on the Bar Council’s Public Access Directory. Remember that the rules in relation to Direct Access change frequently, so it is necessary to keep up to date with the public access guidance for barristers.

Some sets of chambers are especially well organised when it comes to public access. They have part of their web site dedicated to direct access. Most enquiries from the public arise from either a search of the Bar Council Directory, or from a simple web search. Without a clear and inviting profile on your chambers web page, potential clients face difficulty in finding you. You should also join the Public Access Bar Association, both for accessing information and making direct access contacts. Note that a number of barristers have set up their own individual, bespoke web pages to promote their practices (e.g. here). Both for sole practitioners and members of established sets, this offers a higher level of personal visibility for barristers who wish to undertake this work.

Next, it is important to determine precisely what market you are seeking to target. Whilst solicitors are familiar with the most direct route to the barrister of their choice, members of the public clearly do not have that expertise. Your marketing profile will determine how many hits you get and thus the number of enquiries for services. In my experience, members of the public seek you out either because they have heard of you, or because you appear to specialise not just in a particular field, but also share a special stand-point on it.

Administering a public access practice requires a different approach for chambers’ clerks. Here they may benefit from one of the Bar Council courses. The contract is key, and the management of fees requires careful thought to avoid handling clients’ funds. Here are some of the helpful guidelines and model client care documents.

The benefits from public access for clients are clear -they get to their specialist advisor and advocate from the outset. Their barrister will guide their case, advising on procedure, evidence, and the conduct of the case. The client can undertake the administrative tasks under guidance, avoiding excessive legal bills at hourly rates.

For the barrister, public access can be one of the most rewarding areas of practice – not necessarily in financial terms- but in the close working relationship with the client that is possible when you are guiding their case. Most importantly, you end up with the case that you would have wanted to run, rather than a pile of papers with critical omissions emailed the night before the hearing.

Online legal

Photo courtesy of nakedsecurity.sophos.com

Jessops, HMV – and now Blockbuster. It seems that they could not compete against the on-line giants, such as Amazon.

Of our £23bn legal service marketplace here in the UK what part will eventually follow the ‘on-line’ trend, and how many of us left behind will become ‘Jessops’?

The Legal Services Act has given England and Wales one of the most liberalised legal markets in the world, so the historic constraints no longer apply here. Make a web search and you will already find classy ‘on-line’ legal services being advertised, be it an enterprising individual or a group of practitioners working together. On-line, they have a marketing reach second to none, and certainly massively more visible than traditional solicitors’ practices or barristers’ chambers. They have the advantage of being able cleverly to target an intended market. The on-line purchaser of legal services can search out a practitioner or group within certain specialties, examine their experience and track record, obtain market feedback, and book with the click of a mouse.

Like Amazon and unlike the Jessops, they have shed their expensive infrastructure of real estate shop windows, staffing and clerking levels – to work leanly with minimal expenses. Here is an immediate price differential of 20-50%, allowing for reductions and marketing offers.

It is not Tesco Law that we should fear. It is the established groups of dynamic, specialist practitioners who know exactly where their markets are and how to access and retain them.

When the boards go up at chambers’ windows, and the clerks are sent home, where will you be?… Invisible or On-line?

HMRC to investigate barristers

It came as a big surprise to the Bar. HMRC has identified the London Bar amongst their main targets for 2013.

The Chairman of the Bar, together with representatives from the Bar Council’s Remuneration Committee, rushed to meet with the HMRC top guns. ‘Why pick on us?’,  was the implication of the first question asked. But the answer was not what was expected. Whilst the big wigs thought that the motivation was big bucks, the truth of the Bar’s transgressions was humiliating.

• Failure to change from the income tax cash basis to the earnings basis at the correct time;
• Omission of the catch up charge instalments following that change;
• Incorrect calculation of earnings due to mistakes in the assessment of work in progress and completed but unbilled work – recognition of debts, calculation of completed work (UITF40) etc;
• Omission of ancillary income from returns (VAT of Self Assessment) such as income from property or authorship;
• Failure to make returns (both VAT and income tax self-assessment);
• Failure to pay tax (including VAT) when due;
• Failure to notify chargeability to / register for one or more taxes (including national insurance contributions);
• Continuing to charge VAT under a de-registered VAT number (the VAT number is often de-registered due to the individual failing to make returns).

As we approach that time of year when the VAT returns coincide with the tax returns, now is the moment to take stock – and perhaps get some professional help. Those who fail to make their tax returns and payments may just as well place a big flashing beacon on their file.

Charity Norman rides back into town

Just when you thought that you had opened your last present and all the fun and festivity of Christmas was over, Charity Norman blows back into town with her Five Minute Memoire: Charity Norman recalls a very bad day at the Bar (The Independent, 22 December).

Those who have a fondness for the nineties will remember Charity Norman as a devastatingly powerful young advocate practising on circuit in both the criminal and family law fields. Seduced by the prospect of sun, lifestyle choices and sheep shearing with her husband Tim, Charity took off to Tim’s homeland, New Zealand.

But, our home-grown bundle of energy could not simply stop there and make outfits for the Nativity play – instead Charity Norman reinvented herself as a writer, her second novel ‘After the Fall‘ being published by Allen and Unwin on 3 January 2013. So you like Jodi Picoult and Joanna Trollope, then you will love this.

When you have tired of the grey novels you received for Christmas, take a stroll to the bookshop, and enjoy a nice dive into this refreshing new writer.

Margaret and Jimmy

Today’s newspapers are preoccupied with released material from the National Archives for 1982, focusing on two separate issues – the then Prime Minister Margaret Thatcher’s role and understanding on the Falklands Island conflict; and her personal relationship with Jimmy Savile.

Hearing this, the blogger, who worked on several charity events with the late Sir Jimmy Savile (at that time known only as a celebrity charity fund-raiser), rushed straight to the archives to follow through one of the stories concerning Sir Jimmy and Baroness Thatcher.

A year before Prime Minister Margaret Thatcher  left office, and the same period of time before she authorised his knighthood, Jimmy Savile sat in my North Yorkshire kitchen to drink tea. Sutton Bank was blocked and traffic coiled back from the village below up into the mists of the Hambletons. Jimmy Savile, in training, had run up the bank, a mile of hillside rising 800 feet up a one-in-four incline. It was not long into the New Year and he had recently returned from spending time with the Prime Minister.

How the conversation turned to the Falkland Islands I cannot now recall. Jimmy Savile declared that he had been in Margaret Thatcher’s company at Chequers on Sunday 2nd May 1982. Whilst walking together, and on receipt of a note, her face had turned ashen. Jimmy Savile looked at her with concern, “What’s the matter, Margaret”, he said. ” The Belgrano has been sunk”, was her reply.

And so I darted to the released archives to check the authenticity of the tale. Was Jimmy Savile with the Thatchers at Chequers that fateful afternoon? Why was he there? Did he witness this moment? And did he really say, to her clear annoyance, “Well, it wasn’t there for fishing, was it”?

Fascinatingly, did Margaret Thatcher subsequently repeat this comment as her own – in the Palace of Westminster, the privacy of Downing Street or elsewhere?

The archives are silent, as is Hansard. The players, Jimmy Savile, Dennis Thatcher and Margaret Thatcher are no longer in a position to comment. Perhaps a junior aide may have some memory of the moment? But the tale tells of an establishment familiarity that preceded and followed the Savile phenomenon, whatever its merits – or serious detractions.

Sandy Hook, Newtown, Connecticut

On Wednesday 13 March 1996, about 8.15 am Thomas Hamilton was seen by a neighbour to be scraping ice off a white van outside his home at 7 Kent Road, Stirling. They had a normal conversation. Some time later he drove off in the van in the direction of Dunblane. By 9.40 am at Dunblane Primary School, Gwen Mayor and fifteen children lay dead, a sixteenth child to be found dead on arrival at Stirling Royal Infirmary.

By 27 February the Firearms (Amendment) Act 1997 received Royal Assent. Under part 1 of the Act, section 5 of the Firearms Act 1968 (prohibiting automatic and assault weapons) was amended to prohibit firearms with a barrel length of less than 30 cms; and the possession of small calibre pistols was largely confined to pistol clubs. Under part 3 of the Act, the grant and revocation of firearms certificates was tightened.

In 2002 the Home Office published ‘Firearms Law – Guidance to the Police’ with a view to capturing all of the firearms legislation and procuring seamless practice in relation to firearms certification between police services.

On Friday 14 December 2012, 3,500 miles from Dunblane, Adam Lanza from Newtown, Connecticut kills 26 staff and children at Sandy Hook Elementary School.

Today, Senator Joe Manchin (West Virginia), the National Rifle Association pro-gun rights activist, concedes for the first time that now ‘everything should be on the table’ concerning gun control.

Self-loading and assault weapons have no place in civil society in the hands of members of the public. The measure of a civilised society is not the ‘protection of rights to weapons’ but the protection of the vulnerable – those who may use, and those against whom use may be made, of weapons intended for nothing more than killing.

Whilst an advert may appear at the foot, this blog is neither monetarised, nor endorsing any product

Press release from Mr Justice Schrodinger, Family Justice Modernisator

This is essential reading for all family practitioners undertaking child care work.  ‘Pink Tape’ barrister, Lucy Reed has carefully, systematically and accessibly summarised the proposed new procedures for tracking public law family cases.

Ensure that you read and digest the guidance, and click ‘follow’ on the Pink Tape blog.

War and Peace

Its Saturday – just before 8.00 am street lights still glint through eerie mist – and I climb the bank to Darlington station to take the train to York. For why? For ‘War and Peace’, of course.

When the North Eastern Circuit advertised a ‘War and Peace’ presentation at the Royal York Hotel, I scrambled my brains to work out how I could justify adding its’ 4.5 continuation development points to my meagre annual total. Then, my eyes alighted on the list of contributors. Alex Bates, fellow mediator, who worked in Kosovo as an international prosecutor of war crimes, then on to Cambodia as a prosecutor in the Khmer Rouge trials in Phnom Penh. Alex is skilled in every aspect of dispute resolution, so here was my passport to points. But the trophy list did not stop with Alex. Tim Clayson – with whom as a prosecutor in West Yorkshire, I defended so often in the 1980’s, is now, a circuit judge in Bolton. Tim was to share his experience as a United Nations International Judge in both the District and Supreme Courts of Kosovo. Next, Andrew Hatton, formerly a stalwart and fondly remembered member of the Sheffield bar, now circuit judge in Liverpool came to share his experience as an International Criminal Judge with the EULEX mission in Kosovo. And finally, Terry Munyard, criminal, civil liberties and human rights lawyer at Garden Court, Lincoln’s Inn Fields, was to speak about his five years as defence counsel representing former President of Liberia, Charles Taylor.

The next four and a half hours was to be a prize indeed, less for the points, more from four intensely fascinating human journeys. Whether as judge, prosecutor or advocate, each contributor told a special, personal story – starting with a simple decision to step into unknown territory, and ending with a wealth of experience drawn from lives that elude the circuiteer.

Alex Bates, called to the Bar in 1994, practised in Leeds until 2003, when he became  an international prosecutor of war crimes in Kosovo. This was a prelude to his appointment as a prosecutor in the Extraordinary Chambers of the Courts of Cambodia, dealing with the Khmer Rouge trials, in particular Kang Kek lew who headed the Santebal – the special branch of the Khmer Rouge in charge of internal security and running prison camps including the notorious Tulo Slen prison, from which few escaped alive. The ‘hybrid’ system of justice set up there by treaty comprised both Cambodian and International Judges and prosecutors, presenting a roller-coaster of experience and intrigue.  Alex now works as an independent consultant in international criminal law, lecturing and presenting at conferences around the world.

H H Judge Tim Clayson, having cut his teeth on the international stage as lead counsel in the United Nations Special Court of Sierra Leone, was appointed an International Criminal Judge by the United Nations in 2001. He quickly took on the role dealing with the appointment and discipline of all international judges and prosecutors in Kosovo, and went on to chair the Commission of Inquiry into multiple deaths in custody following a fire at the UN administered Dubrava prison in Kosovo. Tim Clayson still maintains a role on the international stage, having participated in the Judicial Standards Enhancement round table meeting in Armenia.

H H Judge Andrew Hatton’s international appointment as a criminal judge was cut short by his appointment as a circuit judge in Liverpool, but he completed one year within the International Criminal Court. Andrew was able to share his experience of the practicalities of making a transition from practitioner to international judge, and back to the circuit bench.

Terry Munyard’s experience arose on the back of a lifetime desire to be an international lawyer. In 2007 he accepted the task of representing the flamoyant Charles Taylor who, after a turbulent five year trial was, on 26 April 2012, convicted of crimes against humanity, including murder, rape, enslavement, and conscripting children – and sentenced to 50 years imprisonment.

The tales told as much about the men as they did about their international journeys. Here were practitioners who were prepared to step outside the confines of predictable practice to take on new challenges.

So, just after 2.00 pm, I left York, now in glorious sunshine, to return on the East Coast line to Darlington. What have I learned? That life and practice at the Bar need not revolve around the circuit Crown or County Court list. Perhaps I shall dust off that flak-jacket and search out my passport.

Birthday with Laurence

When Laurence met Mimi, a new dimension of life opened for them – and for all of us that knew him. Staten Island, New York replaced Crook, Co Durham; and our imaginations soared at the possibility of such an escape!

Now in Manhattan, I could not resist the chance of meeting up again.

We take Subway line 1 to South Ferry where New York City Department of Transportation’s huge orange ferries carry 20 million passengers each year across the 5.2 miles of Upper Bay to Staten Island. Three minutes from the ferry terminal in Water Street is ‘Standard and Poors‘, one of the big three international credit rating agencies, and famously, the one that downgraded the US long-term credit rating in August 2011. They however, redeemed themselves by likewise downgrading France’s rating in January 2012.

Laurence now holds the post of Director of Governance – a far cry from the English Criminal Bar. Examining and analysing how major economies and international corporations are operating, throws light on what credit facilities can be safely afforded to them. And Laurence assists and advises credit analysts with their reviews of management and governance as a part of the credit rating process. Each day he will take the 25 minute ferry between his fascinating carriage home on Staten and the 39th of 54 stories of 55 Water Street, a building comprising 3.8 million square feet. There he will manage his international team, setting the criteria on which to gauge the health of nations. No N/B 10.30 plea and directions in Middlesbrough now!

We drop down to Battery Gardens overlooking the water front, with views out to Ellis Island. Here is the table Laurence has reserved, where we will drink white wine and take a light lunch under clear blue skies.

Laurence balances the demands of corporate life with gym membership, gardening and entertaining at their Staten Island home, keeping him fit and young. One senses Mimi’s energy as Laurence describes her gradual move from performance to choreography. Today her schedule is too busy to take time away from Staten but she features large in the conversation, especially as I am accompanied by a dancer.

We speak of the change of lifestyle presented by New York, the adjustments and compromises that made the transition possible. Whilst retaining a quintessential  ‘Englishness’, the doctor has assimilated that which is necessary for high-level corporate life. His modesty conceals his determination – that has made him one of the lasting survivors in a harsh commercial environment where employees come and are ‘let go’.

As a large cloud looms, we inevitably speak of the weather – the hot summers where the dash from air conditioned office to the shade of a quayside bar is the challenge – and the cold winters where the ferries weave amongst the Canadian ice flows in the Upper Bay.

And with that and the last sip of wine, the dark cloud releases its burden. Three under an umbrella is a crowd, so Laurence races off towards Water Street and his 39th floor. Shall it be Ground Zero Memorial, or a return to Harlem? With the prospect of ‘Tango Café’ and dancing til dawn, we take the latter, leaving  the ‘standard’ affluent location in Manhattan, for one of the ‘poorer’.

Lawyer in New York

It’s time for lunch, and we are just along 42nd Avenue from Grand Central Station, Manhattan. September here in New York is a glorious month of sunshine, the leaves showing their first flush of colour as high temperatures slip the right side for comfort, and the crazy rush of the city takes on a more gentle pace.

Leaving Subway line 3 at Times Square, Maureen Hackett‘s Bryant Park is our first stop where we rest beneath the canopy of planes amid the gardens, promenades and terraces. The square is one of Manhattan’s most sophisticated, with open air chess and reading room, and a flood of little tables at which office workers and tourists take a break. It is by John Quincy Adams Ward‘s Dodge monument that we meet with Garrett who has just published his third book, a narrative poem about the life of a professional dancer, contrasting with his previous  ‘Steinbeckian’ Alaskan novel. He is part of that great wave of writers who are attempting to make it in the cut-throat literary world.

Our main purpose of the day is to meet with Keith, a maritime lawyer. Keith, a Yale and Vanderbilt graduate has been practising in shipping law since 1980, dealing with collisions, charter parties and maritime contracts, having a shared interest in arbitration and alternatives to litigation. We greet just outside the doors of 100, and slide down Park Avenue to Pershing Square with its bright tables spread out across the street. We are midtown, amongst so much that is Manhattan – the Chrysler building, Waldorf-Astoria, and the top of the Empire State building peeping between the roofs.

Keith has reserved a table, one that is away from the breeze, but catches the autumn warmth. As a specialist lawyer he dresses informally and looks relaxed. His practice is a mixture of court and tribunal work, but with an emphasis on problem-solving, deal brokering and contract management. Like many other professionals who work in Manhattan, he lives outside the island – in this case, Connecticut to the north-east of New York, and travels in daily by high-speed train. His offices give a sky-level view over Manhattan towards the East River.

It would be unfair to compare the life of an American maritime lawyer with that of an English advocate, but the obvious contrasts are significant. Working life here appears more intense – early starts with fast journeys decanting at Grand Central into pressured meetings and hard negotiations followed, at the end of the day by a wind-down beer. This is a truly urban working life, surrounded by soaring buildings shading East side Manhattan.

We talk about deals, cases, ADR and working life in the city. We glance back over the life challenges of the first American lawyers,  time spent in current working lives, and forwards to the new opportunities that life may afford. Keith’s Blackberry signals the end of lunch and the start of his next appointment. We part, two very different professional lives of lawyers slipping their own way – his to the upper floors of Park Avenue’s first modern glass and steel tower, ours towards the shady Garment district of Manhattan for our next rendezvous.

September blog from New York

As summer draws to a close and the English courts return to ‘business as usual’, Stephen Twist’s Barrister blog moves to New York. Look out for the New York series in which we discover what we can learn from 3,500 miles of distance between sense and sensibility.

Judge Bowers : what is your verdict?

A post suggesting that we hold back on criticising judges until we understand what they know

His Honour Judge Bowers has caused a furore, and the press are enjoying a feeding frenzy concerning his comments about burglary and bravery.

Without a transcript, we do not know precisely what he said, and more importantly, the special context of his remarks. Sentencing comments do have a dual role – a message to the public about the crime – and a message to the offender about their behaviour and how it impacts on society. It may be that Judge Bowers on this occasion, has got the balance wrong, or misjudged his audience.

Contrary to the press reporting, Judge Bowers’ comments in no way condoned burglary, nor applauded a perpetrator. Judge Bowers is known as a resolute sentencer and a mile from a soft touch. His reputation is for sound common sense and safe, realistic  judgment.

The purpose of this part of his sentencing remarks was not to excuse or condone the acts of burglars. It was aimed specifically at Richard Rochford, sending this message to him:- ‘if you have the courage/capacity to commit a heinous crime like this, you should have the courage/capacity to change your ways’.

Whilst society expects most offenders to self-determine their rehabilitation, my thirty three years of experience of criminal justice says otherwise. One of the most testing and difficult changes for a re-offender is the decision to quit. Offending frequently becomes a lifestyle for criminals, trapped by weakness, insignificance, life experience, drug dependence or peer group. Such offenders stand little chance of escape from crime. Their criminal lifestyle is self-perpetuating, whilst society looks on – administering deserved punishment but without offering solutions.

This is why re-offending in a prison-obsessed society is so high. It is also why on the whole, prisons cannot work. Being confined to a cell, exercising and socialising with other criminals is not a good recipe to bring about change. Community sentences attempt to address this, and have some success – certainly better than incarceration with other offenders. Britain has an unusually high prison population, which over many decades, has not reduced offending. For that, one needs to look to other social measures.

I sense that the message Judge Bowers wanted to convey was that as this particular offender was clearly not daunted by the sheer risk of committing the crime, he should have sufficient courage to tackle the hazardous and testing task of his own rehabilitation.  In speaking about courage, Judge Bowers sought to harness Rochford’s strengths for ‘good’ rather than ‘evil’ – for rehabilitation rather than re-offending. This is a sensible message to an offender. But perhaps it was too subtle for the media to grasp?

When the press has moved on to new news, and politicians have ceased to posture, perhaps then we can explore the real debate that Judge Bowers’ starting pistol has triggered. What is the true role for prison, why does it not provide sufficient benefits for the public, and how can it be made to work? It is notable that, in the aftermath of Judge Bowers’ remarks, no one seems willing to seize that particular nettle.

Family Law Awards 2012

Whether for innovation or simply superb commentary, follow the link to vote for Lucy Reed of the Pink Tape blog. Lucy is short listed in the ‘Most Innovative Family Lawyer of the Year’ and the ‘Family Law Readers’ Commentary Award’.  Voting is simple, takes 80 seconds, and your votes for her will acknowledge that there is legal excellence north of Watford…whoops, I mean west of Great Cumberwell.

http://www.jordanpublishingsecure.co.uk/forms/vote.asp

Refusal to mediate

Recorder Stephen Furst QC, sitting as a Deputy High Court Judge has demonstrated just how in touch and functional the modern judiciary can be.

His decision was PGFII SA v OMFS Company (2012) EWHC 83. Yes, this is a Technology and Construction Court case, but don’t go away – those with mixed practices, or specialist practices elsewhere should take careful note.  The TCC has led the way in mediation matters for the rest of the specialist Bars.

A trial of issues between the two companies, PGF and OMFS was due to start on 11 January 2012. The day before trial, PGF accepted a long-standing Part 36 offer made by OMFS in April 2011. This compromised the substantive claim. But what about costs?

In the ordinary course of events, PGF would not have stood a ghost’s chance of resisting OMFS’ costs from the date of offer to the eve of the trial. PGF’s acceptance of the Part 36 offer was extremely late and out of time. PGF should have been in dire straights with the judge.

However, PGF had made two offers of mediation, the first round about the time OMFS made their Part 36 offer, and the second in July 2011. OMFS had ignored both.

Were OMFS justified in dismissing the offer of mediation?

It is right to observe that the parties had attempted to mediate another issue unsuccessfully in 2010. OMFS sought to blame PGF for its failure. Would this rescue OMFS, and how would the judge deal with this suggestion?

Well, as you expected, the answers to the questions were ‘no’ and ‘no’. Recorder Furst showed what Tony Allen, Solicitor, Mediator and Senior Consultant to CEDR described as “an excellent understanding of the dynamics of mediation”.

Recorder Furst started by applying Halsey v Milton Keynes NHST perfectly. Had PGF shown that mediation had a reasonable prospect of success? Yes, their offer was genuine and was repeated. Had OMFS behaved reasonably? No, they had simply ignored the invitations, shutting themselves out from arguing the ‘prospect of success’ point. Did the previous unsuccessful attempt at mediation make a difference? No, “the court should be wary of arguments only raised in retrospect as to why a party refused to mediate or as to why it cannot be demonstrated that a mediation would have had a reasonable prospect of success”. Would the court look into the reasons why a previous mediation had not been successful? No, “courts wish to encourage mediation”, and to dive into that pool (my words) would be to be to undermine the confidentiality of the earlier mediation.

Other key phrases fell from the lips of the learned Recorder. In answer to the question of reasonable refusal he said,  “the skill of a mediator lies in drawing out seemingly intractable positions” – “the essence of all successful mediations is a willingness to compromise and/or the realisation that certain points are not as strong as the party believed”.

Even though they had accepted OMFS’ early offer, PGF were awarded costs up to the expiry date of OMFS’ offer, and resisted being punished in costs thereafter, with a no-costs order.

Lessons learned? First, don’t ignore a request to mediate, no matter what you may think of it. If you are determined to take this risk, at least set out cogent arguments at the time for your refusal, and keep your fingers crossed that a judge will agree with you later – but don’t count on it! Second, wouldn’t you be better off to take the risk and try the mediation? If costs escalate and your refusal is held to be unreasonable, you may end up with a legal costs bill that eclipses your claim. Third, look out for the filter-down effect of this judgment into other civil and family courts. Where the TCC goes today, other courts will follow.

Whilst an advert may appear at the foot, this blog is neither monetarised, nor endorsing any product

End of an Era

Only because it is the height of summer in England, the thin light of morning strains to penetrate my bedroom blinds. In any other season, it would be dark as a cave and twice as cold. The alarm sounds and shakes. Is that ‘BBC Radio 4’, or still the ‘World Service’ that whispers from my bedside radio? Why, after a lifetime and a half of being a barrister does the prospect of waking and rising at dawn dismay me so?

Today is Bridlington. The zenith of a thirty three year career at the Bar draws me back to the East Coast’s most lost seaside Family Proceedings Court, lying at the end of a road that will go no further. The listing is for 10.00 am, but the case requires an earlier attendance. This will follow a protracted journey out across the River Tees into North Yorkshire, casting off the A1 at Thirsk, mounting the Hambleton Hills at Sutton Bank and winding slowly across the moors and wolds into East Yorkshire – towards the smell of the sea. The journey there will take two and a half hours – the same time as a fast train to London. The listing is for twenty minutes.

That the case is dull is not an issue. That the net remuneration rate from the Legal Services Commission will not exceed £9.00 per hour is just one of those things in legal life. But that after a lifetime at the Bar this is my fate, is altogether something else. Fortunately, my little Smart 42 will deliver 80 mpg of diesel, so I have one economy to console me. Perhaps a solitary portion of fish and chips on the pier will be another.

Of course you will already have gathered where my florid self-indulgence is to lead. Today represents my last day of public duty – of devotion to the Commission’s service. With the rattle of the court’s security gates behind me, I shall no more return to the Family Proceedings Court here in Bridlington, or indeed elswhere.

I share my decision, and my fate. My advocates’ room announcement leads to sweet sadness on the part of colleagues who appear to lament both the passing of my era, and the loss of age and experience to a tier of justice that so often needs a mature voice.

Party Status in Family Proceedings: radical changes

Photo courtesy BBC

In an earlier posting – Parents in Care Proceedings -Parties or Witnesses, I raised the question of whether parents should have party status in cases involving their children.  I also explored the success of  Mediation Information and Assessment Meetings as a mechanism to moderate adult protagonists in private law family proceedings.

A number of readers have expressed a particular interest in these ramblings, and I feel the time is right to pull the ideas together into a tighter structure, so to progress the debate.

The premise was that, whether public or private law proceedings, frequently the competing and increasingly vociferous claims of  parents, grandparents and other family members don’t promote – but often get in the way of justice for the child. Proceedings, where the flames are fanned by lawyers, fuelled by a jerry can of public funding, develop a life of their own – with the voice of the child getting lost in the melee.

I considered whether the voice of the adults should have such prominance. Should family cases be instigated as they are now, like civil cases, with a claim that brings parents as ‘applicants’ and ‘respondents’ in opposition? What is the real need for an adversarial process in family law? And what is the justification for using the public’s money to pay for such a potentially polemic process?

Important decisions are taken in relation to families. Some would say that they constitute the most important decisions next to the issue of depriving individuals of their liberty. This seems to be the main driver for retaining the adversarial process in family law. However, what we have ended up with is in fact a quasi-adversarial process, where roles are fudged, and the traditional adversarial approach is deprecated by the judges who have responsibility for it. Perhaps rightly, when you see first-hand what the conflict produces – attempts at manipulation, polarity, and a reluctance to compromise.

In a real child-centred system, you would not have a system where the competing claims and counter-claims of parents set the stage for a court hearing. You would substitute a process where the voice of the child was heard first and last, and the adult players gave their opinions as witnesses.

Of course such a process would require significant cultural and statutory changes. First, you would need a new mechanism in which, when an issue was raised that concerned a child, the child or children would be represented as a matter of course. The solicitor for the child would take charge of the case, contacting the parents or other witnesses with a view to taking statements from them. The child’s solicitor would share the various views and arrange a moderation meeting where appropriate. Whenever possible, out of court agreements would be forged. Where not possible, a judge would adjudicate on the basis of the evidence – oral and written – the parents attending simply as witnesses.

The children’s guardian and the guardian’s solicitor would have a paramount duty to the child, and to the court from whom they received their appointment. Clearly, there would be a need for oversight of their functions and role, but this could be provided by a professional body for guardians and, of course, the judge – who would have  final case-management responsibility.

The blogger believes that many parents would be greatly relieved by such a change. On the whole, parents do not love the adversarial court process, and those that do should not dictate a system for those that do not. Furthermore, most parents do not relish the considerable cost of representation in a battle concerning their children. What they do want is someone to help them formulate a realistic position that has a chance of favour with a judge, the right to answer any concerns about their ability to parent, and the opportunity to be heard before a decision is made.

Whether represented by lawyers, or litigants in person – parents, grandparents and other family members make bad case managers. Solicitors representing both public law and private law clients sometimes fare little better and miss or avoid opportunities to re-direct their clients’ energies away from conflict into the constructive compromise that courts seek.

The downside of these radical ideas is that thousands of family lawyers would face a lean time. The plug pulled on the stream of public funding, and their role restricted to assisting parents as witnesses, the lawyers would no longer feature as visible players in the process. However, the public costs saved could be diverted to fund the guardian’s role, ensuring that public money is put where it will have the best advantage – to enable the interests of children to take centre stage.

The Virtual Court

Photo: Kenya’s 1st virtual court session

Hertfordshire, along with Kent, Cheshire and London, have undertaken pilot studies of ‘ the virtual court‘. Designed for criminal cases, prisoners were video linked from prison for remand hearings.

Last week, the blogger video linked yet again from Leeds to the Royal Courts of Justice for a hearing in a family case.

The idea of the virtual court is not new. Nearly a decade and a half ago following the publication of a number of papers on the subject (including this one from Robin Widdison), the then Lord Chancellor Geoff Hoon mooted the idea of virtual court hearings. In 2001, Lord Justice Sir Henry Brooke had a go,  and in November 2011, Lord Neuberger came very close to the concept of the virtual court.

If you were to poll both professional court users and litigants, the blogger suspects that feedback would centre on the age-old issues: cost, delay, stress of attending court, waiting for the case to be called on, not getting on. They are the main reasons that the English legal system has been moving more and more towards alternative dispute resolution. Might ‘the virtual court’ also address or help with all or some of these issues?

Almost all interim hearings could so easily be removed from the court setting to a judge-supported administrative path. Yes, sometimes the parties need to see and hear from the judge in person – for example where settlement indications are sought (for example in financial dispute resolution meetings). But the sound of the voice and the whites of the eyes are equally audible and visible through video linking.

Just like working from the screen rather than the page, video hearings require new skills from both the lawyers and the judges, and to get them, a degree of new discipline. The blogger is unconvinced by lawyer’s assertions that “it takes the door of the court to broker a settlement”. All that is needed is a culture change. What better way to change the culture of settlement than for judges to prepare for a video hearing by reading the papers and setting an agenda, and the lawyers to prepare their clients properly before the video hearing?

The technology is there, and so is an increasing level of judicial experience of video hearings. The parties to a claim or case could simply attend their solicitor’s offices for a video conference with the judge. Any documentation to be shared could be scanned and emailed and in one simple measure the issues of overcrowded courts in staffed and expensive real estate, long delays and waiting time, court security, costly and lengthy travel arrangements and the unscheduled use of judge’s time, could be reduced.

Or is the legal profession too conservative, profit orientated, orally obsessed, or self-interested to make such developments work? Why has fifteen years of judicial driving towards the virtual court resulted in virtually nothing?

Job description of a barrister

Did I miss it? I have just undertaken a web search for a job description of a barrister, without much success. How interesting…

Targetjobs got my best score (nine out of ten points);  Allaboutcareers had a go : “yep, that’s right, barristers are likely to do a fair bit of advocacy work”:  (4 out of ten points); and the Bar Council condensed their attempt into five lines (a miserable 2 out of 10 points from me).

But to their credit, their purpose was one of general description, rather than role definition. Maybe they should be forgiven, and perhaps the blogger should have used more fastidious search criteria.

The problem with the job of barrister is that it really defies simple description. Possibly every barrister in private practice does a different job, and so merits a different job description. The assorted collection of types, personalities, practices and outlooks in chambers tells a similar story – where individuality can transform the type of work received, the way in which it is undertaken, and the level of income at the end of the tax year.

However, the blogger thought it might be fun to try to define the role. The interest of the exercise is not necessarily in the finished product, but more in the questions that arise in the journey. Take a look, and see how suited you are for the job!

Specification

 A barrister who:

• complies with the 8th Edition of the Code of Conduct of the Bar of England and Wales;
• has paid all fees and subscriptions to maintain practising status, and is listed as currently practising in the Barrister’s Register;
• has passed chamber’s selection process and been admitted to chambers as a practising member;
• complies with the responsibilities of a practising member as set out in the constitution of the individual set of chambers;
• pays all dues required of a practising member under the constitution.

Job Description

Title:                            member of chambers (member)

Reporting to:            Head of Chambers

Hours:                         sufficient to undertake the demanding role of barrister

Function:                   to advise and act as advocate for professional and lay clients where instructed to do so.

Key Accountabilities

1. To read instructions as soon as reasonably practicable and in any event within 7 days of receipt.
2. To decide whether the member has the skill, expertise and experience to undertake the tasks required for that piece of work, and to return any instructions to the appropriate clerk that fall outside this requirement.
3. To comply with the instructions:
   1. by the target date specified in the instructions,
   2. by key dates required by the court or tribunal,
   3. by any protocol,
   4. within an appropriate period of time taking account of the complexity of the issues, the amount of work to be undertaken, or any time scale agreed with the person instructing the member.
4. To attend any hearing as directed.
5. To notify the appropriate clerk if the member encounters any difficulty in attending a hearing at the specified date and time.
6. To inform the appropriate clerk of the outcome of any hearing, where possible on the day of the hearing.
7. To endorse in a legible manner on or with the instructions the outcome of any hearing and of any other work done by the member, and to prepare an attendance note for the client.
8. If the member is unable to undertake or complete any work, to return instructions and case papers promptly to the appropriate clerk.
9. To keep all instructions and case papers safely, to encrypt where necessary, to respect case confidentiality and to ensure that instructions and case papers are disposed of appropriately when work has been completed.
10. To comply with the Code of Conduct of the Bar, the constitution of chambers, and protocols issued by the specialist bar associations.
11. To respect the confidentiality of others within chambers and of chambers business.
12. To comply with directions from the Head of Chambers, the member’s head of department, and in relation to administrative arrangements, the member’s clerk.
13. To comply with statutory requirements of the Data Protection Act 1998 and the Proceeds of Crime Act 2002.
14. To report to the Head of Chambers any issues that may have a bearing on the professional reputation of the member or affect the standing of chambers.

The blogger is confident that he has only just scraped the surface with his serious list. ‘Inviting  judges for dinner’, ‘working throughout the night’, ‘cancelling the annual holiday’, ‘dealing with difficult opponents’ are some of the tasks that have not been included, but maybe should be there. Of what would your list comprise?

Public Access

Once, a fringe, micro-aspect of work at the Bar, is Public Access to become the way forward to see the Bar through the 21st century?

Readers of the blog will know my friend Matthew Shardlake. Matthew was a tolerably successful advocate, and  ‘well connected’  for his time. Is this why he is one of the rare survivors from the 16th century? He was, of course, the fictional barrister created by C J Sansom for his Shardlake series ‘Dissolution’, ‘Dark Fire’, ‘Sovereign’, ‘Revelation’ and ‘Heartstone’, published between 2003 and 2010. Sansom’s novels chart the fate of the Tudor barrister as he played out his part in the sensational reformative events of the time.

My interest in Matthew Shardlake is less for his historical role, but more for his current relevance. It seems, in the times of Henry V111, that barristers operated a very effective form of public access. Indeed the work of the ‘solicitor’ was confined to that of a clerk – preparing cases for the barrister who would advocate in court. The difference was that the barrister received his (for in the C16 barristers were male) instructions from the client, and the barrister advised the retention of a solicitor or clerk to obtain depositions and liaise with the court.

Perhaps a sign of hard times, with economic recession and job insecurity, members of the public are questioning the cost of solicitors’ services, and why they really need them. With ever increasing levels of literacy and huge assistance from the internet, many clients want to tackle the basic tasks themselves rather than pay for a solicitor’s silver-plated service. Some appear as litigants in person; but others are becoming ‘supported litigants’, who retain a barrister for the tasks of advising them and advocating in court.

The change comes at a clear cost to the legal profession. Many solicitors are feeling the rub – just as the Bar felt when solicitors sought and obtained higher rights of audience. Neither is the Bar immune to collateral stress from the fact that non-legal clients are preparing their own case.

Well managed, the advent of public access need not be hard for the Bar, and may be part of its salvation. For years, barristers have had to await a solicitor’s instruction, courting them and managing their preferences. But with direct public access, clients have the chance to check out a chosen barrister and instruct them directly. They receive early, cost-effective advice and keep control over the purse strings. The professional roles are reversed – now the chosen barrister nominates a solicitor to undertake only those tasks that are beyond the client.

So, we return, as inevitably we would, to the days of Matthew Shardlake. The court may not be the ‘Court of Common Pleas’ – now more probably a county or family court in the provinces – but the re-ascendance of the Bar is possible.

More and more clients are going to seek early and less-costly contact with the barrister of their choice. They will have read about them in the press, met them in their communities, checked out their profile on a dizzy dozen of web sites and want to hear how their case looks to the practitioner who is going to advocate it. Wise lay client – lucky Bar.

Having led the way in public access to the Bar by piloting for the Bar Council for England and Wales the first two schemes under ‘Bar Direct’ in 1999, the blogger has had a regular ongoing relationship with direct access.

Mediation Information and Assessment Meetings

Has the number of private law children or financial remedy court cases dropped over the last year?

On 6 April 2011 rules came into force requiring divorcing couples to attend an information meeting  about mediation and other alternatives to court action -before issuing financial remedy or private law children proceedings.

To what extent have they been successful in diverting family cases away from the courts? Well, the picture emerging appears unclear.

Resolution commissioned a survey, which found that:

• Court staff have not regarded it as mandatory that a party issuing an application should show evidence of having attended a MIAM. Only 56% of respondents to the survey said that courts asked about this when they applied to issue. One snapshot showed that in the Principal Registry in London, only 20% of applications were accompanied by evidence of attendance at a MIAM.
• Rule 3.2 states that judges “must consider, at every stage in proceedings, whether alternative dispute resolution is appropriate”. Yet 78% of respondents said that their local courts hadn’t asked about this.
• 20%  of solicitors who responded had only referred 0-10 % of their clients to a MIAM, whilst 30%  said they had referred the majority of their clients (91-100%) to a MIAM.
• 89% of respondents reported that 0- 10% of their clients had self-referred to a MIAM.
• It appears that courts in different regions are interpreting the rules in different ways.

Respondents’ feelings about MIAMs were clearly mixed. Some reported a higher level of mediation as a result of increased awareness. Many made the point that mediator or collaborative lawyers spot the cases needing a judge and consider a MIAM to be a fruitless additional hurdle. Others spoke of concerns about the cost of  a MIAM.

The Ministry of Justice has seen an increase in MIAMs compared with assessment meetings. Judge’s statistics are being checked to see if there is a decrease in applications coming before courts, and at what stage they are being compromised. In the Principal Registry, a 6 per cent drop in private law cases has been reported since April 2011.

The blogger has found MIAMs to be really useful on two levels. In some cases they have resolved all or some of the issues without the need for a court decision. In others they have helped to ease the adversarial nature of subsequent proceedings (especially in children cases), and softened the parties’ expectations of the court process.

Within a decade, the culture of family litigation is likely to change. MIAMs are starting to play a part in this. In almost every case there is something that can be agreed, and reaching some consensus oils the wheels for more collaboration between warring parties.

With thanks to Manches LLP and The Times Online

Sir Paul’s Campaign

“Save marriage”, says Sir Paul Coleridge, “from the destructive scourge” of divorce and family breakdown.

Baroness Butler-Sloss, Chief Rabbi Lord Jonathan Sacks, Baroness Deech and Baroness Shackleton have joined him in his quest. Iain Duncan Smith also chips in from the government bench, that ‘more should be done’ to prevent family breakdown.

At a time of rising divorce statistics it is understandable that concern should be expressed in such a visible way. Yes, children are better off with two loving and committed parents rather than a broken home and the principal or sole care of just one. But how, if at all, will Sir Paul’s campaign change the picture?

As a society, should we be pressing married parents of children to stay together? Do we make getting divorced a more difficult task? Should we be advocating marriage as the cornerstone of family life? What do we say to the childless spouses who contemplate separation, or will they have separate rules?

More importantly, is it right that those with a loving, fulfilling and solid marriage should be setting the bar for those who have not been so blessed? Or does the argument revolve around the ‘personal discipline’ of laying in beds we ourselves have made?

The problem probably rests, not with a social culture, but the simple fact that often the natural instinct of many men and women is one of serial monogamy. It is said that this arises from genetics rather than culture: more the consequence of ‘being’ rather than the effect of ‘Facebook’.

As a ‘family lawyer’ I will not be joining  Sir Paul’s team. Whilst my professional experience brings me  into contact with spouses whose relationship has become dysfunctional, I frequently meet people who should never have married each other, or even anyone at all. Some spouses simply contaminate their relationships, and the presence of children cannot justify maintaining the union. On the other hand, second, or even subsequent marriages or unmarried relationships can be extraordinarily successful and productive, both for the spouses and their children.

For my part, I have less regard for the social philosopher – than for those who realistically address the frail human condition. To encourage pre-separation counselling is one thing, but to opine on the sanctity or priority of marriage is quite another. Some cultures have tried it, and they end up stoning their perpetrators.

Perhaps we should be taking the myth out of marriage. Rather than encouraging  ‘the wedding-dress romance’, we should counsel a realistic view of marriage from the start. Better to discourage than to espouse. Healthier to emphasise the discipline, restraint and sacrifice that marriage may require, than to emblazon it as ‘the Gold Standard’.

Now ‘not so anonymous provincial barrister’

You will recall that Lucy Reed, award winning writer of ‘Pink Tape: a blog for the family bar‘ sought Family Justice Narratives from those working in the field of family law. The contributions to the narrative are illuminating. Visit her blog to read more about them. Here is one contribution that you may recognise.

Narrative No 3:  Now ‘not so anonymous provincial barrister’

Tell us where you fit in (solicitor, barrister, social worker, guardian, judge, researcher, court staff, something else)

I’m a Barrister. It’s a job I have been doing now for over 30 years. I am in independent practice, but work with others in a busy set of provincial chambers.

Tell us about your typical week Tell us about where you’re at this week (bad week, good week, rewarding week, soul destroying *headdesk* kind of week?)

Like the ‘Anonymous Social Worker’, I too never have a typical week. A lot of my work is in family courts, undertaking cases involving children – public law disputes concerning care proceedings and private law conflicts about residence and contact – and of course money (called financial remedies).  Here, over 60% of my colleagues are women, many of whom are young. It is fun interfacing with bright, intelligent, innovative younger people. I cover two other specialist fields which have nothing to do with family law, so I do get a break from the emotional side of practice. As well as acting as advisor and advocate in cases, I also have a mediation practice. This is the most enjoyable part of my work. Mediation is quite transformational, turning bitter conflict into workable solutions.

Tell us about the highs and lows and the reasons you do the job

You have to be passionate to be a barrister. After all, the main part of the job is taking on issues (some of which are very challenging) and fighting the case for your client. The ‘highs’ come from the sense of a job well done, although being competitive, I have to admit that ‘winning’ gives me a particular buzz. Getting to the end of a case and hearing those immortal words from your client “You were wonderful” is the best reason for being a barrister. The lows arise when you have a particularly challenging client, opponent or judge. The client who thinks that they know best, or the opponent who will not work flexibly, are my two biggest bug-bears. Judges are quite another thing, but these days if they get awkward, I just tell them to behave, or appeal their decisions. The job of barrister does require a lot of work out of hours, and this can be a drain on personal energy. Fortunately, being older, I get fewer last minute instructions, and when I do, I generally know from experience how to handle things. Then, there is the paperwork…..don’t get me started on that!

 

Tell us about what works well in the system and tell us about what does not work at all

Some say that our system of law is the best that can be devised. I disagree. In the area of family law, I think that the adversarial approach is out of date, and should be scrapped. It used to work when judges just had to listen and decide on what they heard. These days, judges are more proactive and investigatory – and this sits badly with an adversarial approach by advocates. I would like to see this change in family proceedings. Judges who want to inquire…let them inquire. Where advocates are needed, let them assist with this process. Currently, we have an uncomfortable balance between the one and the other.

Tell us about how you see the family justice system and how you think others see you and the system you work in

Tell us about an important influence on your work

The family justice system pretends that it is ‘child focussed’ but I am not too sure that this is strictly true. Frequently the voice of the child, or children, is drowned out by the battle between parents – or parents and local authorities. It is rare to come across a case where relationships between the adult players are functional. I often feel that they get in the way of proper, child focussed solutions.  Rather radically, I question whether parents in care proceedings, or private law proceedings, really need ‘party status’? Generally, parents want to tell a judge how they feel and what they want. They do not really want to run cases. They are certainly not good at it. On the other hand, the job of case management cannot simply be handed over to local authorities.  Why not give that job of case management to a properly resourced Children’s Guardian? The parents could then say what they wanted as compellable witnesses, each proofed by the Guardian’s solicitor. It would mean lean time for lawyers, but would simplify and speed up what is currently a protracted and expensive process.

 

Tell us about how you combine your family with your work and how your experiences impact on your relationships and your parenting

Being a barrister requires discipline, and part of this is ‘knowing when to stop work’ – for the day, the week, or the season. I learned from a colleague’s experience. One weekend, as usual he was reading a brief when a little note appeared under his study door, “daddy, are you coming out to help celebrate my birthday?” When my son was young I always took two months off work in the summer so that I could enjoy summer holidays with the family. Yes, its two months without an income, but then you simply budget for this, if you have the right practice. Normally, I will avoid any mid-week commitments, as almost certainly, a late brief will come in on the night you have arranged to go out or entertain friends.

Tell us – would you choose this job in your next life? and will you be doing it in ten years time?

In ten years time I will be well past working age, but if I wasn’t I probably would still be working as a barrister. I much prefer the collaborative approach of problem solving, so would hope to develop my mediation practice. What about my next life? As a barrister?…most certainly not! I want to come back as a creative artist – art, music, dance: everything that is the opposite of what I do now.

And tell us your bright ideas for change and for dialogue

First, move family law from the adversarial process. Introduce more collaborative working practices. Use some of the money that is spent on ‘fighting cases’ to bring about change – in parenting practices, local authority resources, representation of children. Next, save the judges for the final stage of cases, where options are balanced and tested, and decisions need to be made. The ‘case managers’ need only go before a judge if they cannot agree what is needed. Most advocates (especially some of the younger ones) are very good case managers. Why should they, their clients and other professionals spend a morning, or worse – a whole day at court to deal with administrative decisions which they could fix by email or over the phone? Finally, keep politics out of family proceedings. Ken, I think you know what I mean….

Policing Britain

Photograph: Matt Cardy/Getty Images

In the mid 1970’s as part of the national Queen’s Police Gold Medal Essay competition, the blogger (then a youthful Metropolitan Police Officer) submitted a paper on Policing Reform.

The blogger’s  idea was to divide UK policing into three separate functions: the ‘Police Community Service’, the ‘Police Office’, and the ‘Police Agency’ – yes, very radical proposals at that time.

Clearly, the essay hit the establishment like a wet blamange…in fact less than that – it caused no reaction whatsoever, to be hidden away as a losing entry and certainly did not procure the writer a Gold Medal.

But today….hello, South Yorkshire Police? Did someone dig out the blogger’s essay and re-jig it for Chief Constable, David Crompton?

The purpose of my three-way division of policing was to address the problems arising from a single police pyramid – to which recruits arrived, in which they were required to cover disparate and sometimes incompatible functions, and from which (when skilled and experienced) they were to be removed into police administration on promotion.

My proposal envisaged separating functions and responsibilities. It was driven by pragmatic desire for both rationalisation and appropriate career development, rather than cost. Therein may be the distinction from the current South Yorkshire Police pilot.

All police officers would start their careers as Community Service Officers, performing a peace-keeping function in the community, interfacing with other public bodies, such as social services, community mental health, education, probation, housing and the charitable sector. They would be visible and have a limited, but useful range of powers. Their tasks would be much to do with community cohesion as with enforcement. The department would have its own career structure, with the aim of retaining skilled community officers within this special field through to retirement.

Parallel to, and fed from the Community Service Department, would be the Police Office. Officers in this department would have similar powers and functions to those of current police officers, with investigative and enforcement responsibilities, save that they would be relieved of many of the social tasks undertaken by the Community Service teams.

Finally, to be fed from and having responsibility for both the ‘Community Service’ teams and the ‘Police Office’ (with the added option of recruiting outsiders with appropriate skills) would be the ‘Police Agency’. It would have tactical command of both police and community operations and policy.

How has the blogger’s vision stood the test of time? I now see reactive policing, with officers in stab-proof vests, festooned with handcuffs, sprays, and para-military pockets stuffed with kit, arriving in police vehicles long after they are needed. Frequently, their communication skills with the public are lamentable. I see town centres, both during the day and at night, devoid of any element of social management. Reflecting current concerns with the nursing sector, I see a loss of care and empathy in policing. More worrying, I do not sense a proper interface between policing and other social players who have responsibility within the community.

The separation of functions between police officers and those with community responsibility could have a hugely ameliorative impact on this. The Community team would be attentive to social management and support, providing a visible and financially sustainable presence. Likewise, Police Officers, skilled in observation, investigation, detection and restraint techniques – with the risks, responsibilities and pay that go with them – would be released to do precisely that.

In addition to the social benefits, such measures would enhance the career opportunities for many who choose to work in this important public sector. Those who see their future working in the community could develop their skills and further their careers whilst staying there. Those officers who seek specialist policing skills and are prepared to take the responsibilities that come with them, could gravitate to the Police Office. And with a separate Police Agency, streamlined management and public accountability would be a real possibility, rather than, as currently, an uncomfortable compromise between operational independence and political control.

Whilst an advert may appear at the foot, this blog is neither monetarised, nor endorsing any product

Disclosing interests

Has the Bar fallen behind the rest of society in its duty of disclosure?

For a number of years, the blogger has been involved in pro bono work with a UK charity, interfacing with many public authorities in the north of England. Between them, and the the Bar there seems to be a wide void of practice. In the public/charity sector, key to each appointment, contract and case taken –  is the disclosure of potential conflict of interests.

In a recent trawl of lawyer’s biographies, it is hard to discern what special interests members of the Bar or solicitors may have.  Here, the blogger is clearly not referring to ‘horse riding’, ‘modelling’, ‘fishing’ or event ‘tango dancing’, but to those activities or involvements that could give rise to – or might be perceived to result in a conflict of interest.

From the sample of biographies, it appears that we are good at promulgating our experience, skill sets and capacities; but reluctant to divulge any personal issues, links and in particular, financial interests. No, the Bar Standards Board has not requested publication of such ‘sensitive’ information, but perhaps we are simply ignoring a rising  moral duty to disclose.

How frequently has a barrister accepted instructions in a case that touches on a belief, prejudice, strongly held opinion or personal experience? In such cases, what if anything, has been shared with the professional or lay client? Are we right to separate ‘personal disclosure’ from possible professional conflict?

So often, when asked about personal feelings in taking on a case, I have rejoined “It is the exercise of a professional duty, not the indulgence of a personal belief”? And yet, at the root of all professional activity, we cannot and simply do not escape from our feelings and prejudices.

For most of my professional career, I have felt that this issue is not of importance, compared with the barrister’s duty to fight fearlessly for the client’s cause. The blogger senses that this is changing…the climate concerning the practice of disclosure has changed and continues to change. With the advent of internet searching is it not right that clients should track not just our passions, but also our prejudices?