Prepare now for the next pandemic

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

In a Guangdong 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?

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 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 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 and fixed-point directional speakers.
  4. Far UVC lamp with remote control.
  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.

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!

Under the spotlight

spotlight court

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.

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 ‘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?

Opportunities and video hearings

coronavirus 4

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. uhuruYour 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. hale
  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.

pygamas

Coronavirus – video conferences and hearings

video hearing

A post for those new to video conferencing

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, WebExVideocentric, 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.

Crisis in Policing?

crime

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

Fill in a Form

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?

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.

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!

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?

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

 

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 lamps on the mantelpiece.

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.

https://media.bloomsburyprofessional.com/rep/files/9781509900046sample.pdf

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’ verdict.

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 Simon Michael and Charles Holborne for literary inspiration laminated to this true account. Such a shame that I will never write with his flair! https://www.facebook.com/simonmichael.uk/

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?

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’. 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 enter the process 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.

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!

 

 

 

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.

To blog or not to blog: that is the question?

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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.

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 

Legislation concerning repeat fire weapons

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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.

Barrister in Buenos Aires

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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.

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 trained facilitator, I ask myself about the ‘balance of reward’ from such an arrangement? So here I list what I consider to be the essential characteristics of the role:

  • The status and role of ‘silver barrister’ is to be confirmed and defined by the Bar Council.
  • Silver barristers will be invited/elected by their chambers for continued membership for a renewable twelve month term.
  • They will 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 will pay a nominal annual Bar registration fee.
  • Their status as non-practicing consultants must be declared clearly on all professional communications.
  • They will 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.

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?

Barrister’s Survival Guide

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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.

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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.

Final Furlong

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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

Barrister of 37 years is hotel manager for 3 months

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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.

Advocacy – a low in Family Courts, or a sign of the times?

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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  

Its my money. Trust me!

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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?

Circling restorative justice – are we missing a trick?

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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….

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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

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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?

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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. shoot 1It 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

rex shutterstock

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?

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

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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.

Do barristers and mediation mix?

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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

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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

stuart cundy

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.

Solving Disputes

adr

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

tony nicklinson

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.

 

 

Party Animals

MUNBY

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

bench press

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 SlipperI 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

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.”

Fit for Purpose?

arbitration

 

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.

~~~~~~

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

Family-Law

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

headmaster2

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.

It’s your operation

surgery

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?

sold

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 possible saving to the Ministry of Justice of £1 billion per year from the ‘wholesale privatisation’ of the courts, freeing them from Treasury control. Private investment and means-tested payments would relieve the taxpayer of a 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.

The state has never run a monopoly on the provision of justice, only – until fairly recently – on the appointment of judges. Their offices would historically follow revenue, and would be granted to those who supported the monarch.  Sixteenth century barrister Matthew Shardlake, in CJ Sansom’s ‘Heartstone‘, gives a graphic description of the judges of the ‘Court of Wards and Augmentations’. These were the courts that dealt with wardship (our modern day Family Courts).  After the Dissolution of the Monasteries and the seizure and selling of monastic lands, the old ‘Office of Wards’ was abolished and replaced by the Wardship court. These checked the value of lands subject to wardship, and the feodaries negotiated with applicants for the wardship, and land, of minor heirs. Some were granted to the children’s families, but where substantial money was involved, others would be awarded to the highest bidders.  “Wards and Augmentations are still sitting”…the courts that brought revenue to the King… 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.

The 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 result in 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 given to him or her on the morning of trial? The private sector could not get it more wrong.

The real point of reform is that the public in fact ends up underwriting the cost of everyone’s disputes, no matter how unreasonable. The court ‘issue fee’ no way reflects the cost of running the court and paying for the judges. For genuine civic disputes, this is a bearable 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 the problem up perfectly 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 systems are available, why should the taxpayer fund the big-money divorce,  the bankers’ dispute or the noisy floor? Yes, the litigation costs of these cases are enormous, but solely to pay the 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

Man Hanging on a Scale While Another Man Fills Dish

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

Eddie Stobart

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.

Stobart’s 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.

howarth

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 focussing 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

pack of cards

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

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?

merkel

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

whistleblower

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

Direct Access Revisited: a simple guide

public access

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

http://nakedsecurity.sophos.com/

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

A man doing his taxes using a calculator and pencil on a white background

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

after_the_fall

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

thatcher

savile

Today’s newspapers are preoccupied with released material from the National Archives from 1982, focussing on two separate issues – the then Prime Minister Margaret Thatcher’s role, understanding and belief in 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 kitchen to drink tea at Sutton Bank. The bank was blocked and traffic coiled back towards Sutton Under Whitestonecliffe and 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 on Sunday 2nd May 1982. Whilst walking together, on receipt of a note her face had turned ashen. Jimmy Savile had looked at her with concern “What is the matter, Margaret”, he said. ” The Belgrano has been sunk”, was her reply.

And so, to the released archives I darted to check the authenticity of the tale. Was Jimmy Savile with the Thatchers at Chequers that fateful afternoon? Did he witness the moment? And did he really say, to her clear annoyance, “Well, it wasn’t there fishing, was it”?

The archives are silent. 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.

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.

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.

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.

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?

Divorce Arbitration

Financial remedy mediators have been concerned that there would be some cases for which complete agreement might prove elusive – whether a small sticking-point, or a fundamental difference on a particular point.

It’s right to say that facilitation (or mediation) has a very high success rate. But those who are experienced in this field  felt that getting parties close to agreement, or even at the point where agreement was never going to happen, and then returning clients to the court process, was not a good idea.

This is where divorce arbitration comes in.

It was originally conceived as a ‘back-stop’ – to be suggested should facilitation not have succeeded in providing a full settlement. The offer of a private arbitration would create the opportunity for the parties to seek a binding outcome, enforced by the courts on the basis that both parties had agreed to it; and the resulting award would be sealed by a court unless there was a good reason not to do so.

This month sees the first forty family arbitrators, trained by the brand new Institute of Family Arbitrators, a group formed to deal with financial arrangements following separation. One of the forty, Marilyn Stowe, senior partner at Stowe Family Law, suggests that the arbitration process will be attractive to two groups of people – those involved in big-money cases, clients who don’t want to wait for the court process; and those who want a specific arbitrator to decide the case or a specific point.

The blogger senses that family dispute arbitration will be taken up by a wider client base. It is an attractive option, not just those with considerable wealth or specific needs – but the ordinary couple who have tried for a mediated settlement and would welcome a final solution should they not agree.

Perhaps Jane Croft’s article yesterday in the Financial Times misses an important point. Arbitration is not simply for the super-rich. After all, they can afford to fight their cases out behind closed doors, before a High Court Judge, with Queen’s Counsel representing them. No, the arrival of private arbitration in the field of financial remedy proceedings is for all – a simple, low-stress, economic alternative to the court battle.

Walk the tight rope

Standards at the Bar have fallen  for several reasons including,

“larger chambers and greater mobility between chambers as they compete for shrinking quantity of work from solicitors. This means that collegiate peer pressure to maintain ethics for the benefit of the group or chambers was weakened. The days of feeling free to share an ethical burden with the head of chambers and take advice are gone. Heads of Chambers are more like marketing tools these days. As a result, ethics has diminished as a subject or focus of legal practice. It’s been pushed out by structural changes“.  LuminiferousEther

‘LuminiferousEther’ was responding to the Guardian Law tweet that alerted ‘we internet fishers’ to the comments from UCL Professor Richard Moorhead about ethics and lawyers. Professor Moorhead contends that some lawyers walk “a dangerous and sometimes untenable path because commercially and culturally they were disposed to defend the client to the death.” He goes on to suggest that “the culture of clientelism needs a long hard look”.

Law director Sylvie Delacroix supports Richard Moorhead: “the gap between personal morality and professional ethics has grown wide in recent years. And as we have seen, conforming to professional standards isn’t always enough”.

Fascinatingly for the blogger, Silvie Delacroix suggests that an answer to the ethical issue facing lawyers would be to “promote space for discussion”. We should respond more like doctors, sharing ethical issues; and we should prioritise the teaching of ethics as part of lawyer training. Perhaps this landscape of thinking goes some way to justify the barrister’s blog – open to all, wide ranging, inclusive discussion; rather than secretive ‘commenteering’ by professionals behind closed doors.

As a profession, are we in danger of prioritising ‘outcome focus’ rather than ‘doing what is right’? The adversarial process certainly drives ‘outcomes’ rather than ‘fairness’. What part of our duty involves ‘fairness’?

In the ‘Fair Minded and Informed Observer‘ we considered the burgeoning pressure on the legal profession to identify and promote fairness.  And in ‘The Price is Right‘ the blogger refers to the prospect of third party investment in litigation, and the recent development of chambers wholly owned by a holding company. When lawyers are owned by hedge funds – what then about professional ethics?

With thanks to Alex Aldridge

Jury disservice

Photo courtesy of http://www.dailymail.co.uk

A post describing what happens if you dodge jury service without a good excuse

“The sentence of the court is 56 days imprisonment of which you will serve up to half”.

What have March, Malta lies, deception and Sciatica got in common? The answer lies in a robbery trial last month at Preston Crown Court.

At the outset, the trial judge H H Judge Baker, took pains to check whether any proposed juror would face difficulties if they were sworn in to deal with a four week robbery trial. The case concerned raids by accused Raymond Mallen on security vehicles carrying cash. This was a big trial, with huge implications for the defendant, witnesses and society.

On the Monday of the fourth week, just as the summing up was about to start, jurer Janet Chapman did not turn in, instead sending a message “Hello, this is Janet Chapman Juror Number ***. I won’t be attending court for a period of up to two weeks. I have got to return to the doctors next Tuesday. I have got sciatica. Thank you. Bye”.

But rather than being bed-ridden, she is on a plane to Malta with her partner Raymond Pritchard. The £699  trip was planned three months earlier in January, although according to Mr Pritchard, had been concealed as a secret until the night before.

In sentencing, the Recorder of Preston, H H Judge Anthony Russell QC said “Jury service is one of the most important public duties that a citizen of this country can be called upon to perform. It is inconvenient, but an essential part of our democratic system. It is essential that the duty of jury service is taken seriously by those called upon to perform it, and that it is performed diligently and responsibility”.

Mallen the robber was convicted by the remains of the jury and got 12 years imprisonment.  The rest of the robbery gang got 80 years in total. Janet Chapman the juror is serving her 28 days. Mr Pritchard, the disbelieved schemer, is “choking back his tears at his semi-detached property on the outskirts of Blackpool”. Perhaps he is lucky not to have joined them for ‘seeking to pervert the course of justice’?

The case highlights issues of social responsibility. There was a time when the question of jury service for those eligible, would have gone unquestioned. Janet Chapman reflects contemporary thinking that social responsibility is a question of personal choice. At a time when ‘some’ are carrying a high level of responsibility for ‘others’, isn’t it refreshing that Judge Anthony Russell should give a wake up call to those who feel that they can shirk their share of duty?

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“Seen but now heard”

A post about Gillian Irving QC’s talk concerning children giving evidence in family proceedings

How could anyone make Re W (Children) 2010 UKSC 12 and the 2011 ‘Guidelines in relation to children giving evidence in family proceedings‘ -interesting?

Well, tonight in Middlesbrough in her fascinating lecture opening the Dere Street Barristers Lecture Season, Gillian Irving QC did exactly that.

For decades we have shied away from the prospect of children being called to give evidence in family proceedings. We have fallen behind the criminal bar, where wigs have been removed and video examination skills have been honed. Gillian’s presentation updated the approach of family courts, from LM (A Child, by her Guardian) v Medway Council & RM & YM (2007) EWCA Civ 9, through to RE X (a child) (2011) EWHC 3401.

The topic raised by Gillian Irving raises a number of controversial questions.

First, the real effect on the child of giving evidence in family proceedings. This appears to be a significantly under-researched issue. Where courts are under  a duty to balance justice, fairness and the protection of child witnesses, it would seem that this particular topic should be properly evaluated. The blogger is not aware of more than anecdotal evidence on the question, answers to which are clearly required. Can any readers point to recent research where the issue has been considered?

The second is the role of the ‘intermediary’, and the ‘communication specialist’. The blogger has some experience of these roles in the disability setting, where especially the ‘profoundly deaf’ will be afforded special assistance and access to the court process through communication specialists and relay interpreters. The use of intermediaries and communication specialists in family cases may open trapdoors to whirlpools.

Finally and critically, paragraph 21 of the Guidelines appears to shift some of the burden of ‘fairness’ from the court – to the advocates: “All advocates have a responsibility to manage the questioning of a child witness fairly”. Whilst this will be the guiding principle for most family law advocates, inevitably there will be conflicts of duty to advance the client’s case at some risk to a child witness. How is this duty to be balanced professionally by counsel, and how will the duty be interpreted by the court? Is this not another example of the inherent conflict in dealing with sensitive family issues within an essentially adversarial system of law? Perhaps this should be added to the catalogue of reasons that call into question our current approach to family conflicts?

Family Justice Narratives

A guest post from Lucy Reed, the nation’s top legal blogger

The blogger thanks Lucy Reed of ‘Pink Tape: a blog for the family Bar‘ for agreeing to post her fascinating idea for Family Justice Narratives here.

To reply, follow the link to Lucy’s blog, or email Lucy at  familoo@pinktape.co.uk.

Family Justice Narratives   –   Lucy Reed

I like the sound of my own keyboard, but recently I invited you all to share your perspective on things, to tell a story other than mine (original post here). And quite a few of you replied saying you’d like to take part. So here is how I’d like to do this. I’ve drawn up a list of questions – not to constrain but to guide. I’m hoping they will form a loose sort of structure and that participants will answer those where they think they can say something interesting, ignoring those that don’t grab them or which aren’t relevant to them. You don’t need to take them in order.

The questions:

  • Tell us where you fit in (solicitor, barrister, social worker, guardian, judge, researcher, court staff, something else)
  • 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?)
  • Tell us about the highs and lows and the reasons you do the job
  • Tell us about what works well in the system and tell us about what does not work at all
  • 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
  • Tell us about how you combine your family with your work and how your experiences impact on your relationships and your parenting
  • Tell us – would you choose this job in your next life? and will you be doing it in ten years time?
  • And tell us your bright ideas for change and for dialogue.

The rules:

  • Anonymous is ok.
  • Don’t give details of the contents of documents or of what has been said in court in individual cases, don’t breach client confidentiality (remembering that you can be in breach if your client can identify their anonymous self).
  • Don’t be abusive or defamatory.
  • Expect others to disagree with your views – check back for comments and engage with them.

This is a project which is intended to inform and to provoke constructive and respectful if robust debate. I am not inviting parents to contribute for reasons which I’ve already set out in the original post, but which are probably worth repeating here. In a nutshell two main reasons: 1 Publication of information about individual cases is prohibited. 2 There is already a wealth of information concerning parental experiences of the justice system out there, I’m trying to address the imbalance in the publicly available information about the family justice system so that voices from a range of different perspectives can make themselves heard.

Submissions can be sent to familoo@pinktape.co.uk. I will publish them under a #narratives tag.

Lucy

Fake barrister

A post about a bogus barrister in the news

Today’s Guardian reminds us to watch our wigs and get our submissions right.

Photograph: Ben Birchall/PA

Mrs Justice Laura Cox, sitting at Bristol Crown Court has sentenced David Evans to 18 months imprisonment for impersonating a barrister. Here was a man with a “grandiose sense of self-importance” who posed as a barrister to represent a friend.

David Evans chatted in the advocates’ dressing room and even got into the cells to visit his “client”, cannabis farmer Terry Moss.

H H Judge Stephen Wildblood, presiding in the confiscation hearing noticed that Evans wore a solicitor’s gown and a barrister’s wig.  To compound his mistake, his legal submissions were “hopelessly wrong”. When the judge questioned Evans about his legal qualifications, he admitted he had none.

Mrs Justice Laura Cox told Evans, “the planning of this enterprise was entirely yours, it was your decision to style yourself as a senior advocate. You are a complex and clearly intelligent man … you have a grandiose sense of self-importance.”

Evans told the court he was a “senior advocate” at a London law firm. H H Judge Stephen Wildblood, became suspicious, and noted, ”although there may be circumstances in which a solicitor may wear a wig, it struck me immediately as strange. I was surprised to see the confusion of court attire.”

Evans was arrested and charged with “carrying out reserved legal activities when not entitled to” and “wilfully pretending to be a person with the right of audience”. He had denied both charges, yet a Bristol jury took 30 minutes to convict.

The blogger wonders how Evans would have fared against the Quality Assurance Scheme for advocates? Perhaps level 2?

Mediation Bill – Ireland

Image by Stephen Twist

A post about the Irish Mediation Bill

Did you know that on 1 March 2012 the Irish Department of Justice published its draft general scheme for a Mediation Bill?

Under the Bill, mediation would be facilitated and encouraged in civil, commercial and family disputes – replacing litigation wherever appropriate. Yes, the Law Reform Commission’s recommendations in their ‘Report on Alternative Dispute Resolution – Mediation and Conciliation‘ have been taken and acted upon.

The draft Bill proposes:

  • A new statutory duty on solicitors and barristers to inform their clients about mediation as an alternative means of resolving disputes before issuing a claim – and to certify that they have done so;
  • Confidentiality of all communications between parties in the course of mediation;
  • Empowering the parties to engage in mediation and deciding their mediated outcomes – but providing for binding agreements unless specified otherwise;
  • Giving the courts statutory powers to ‘invite’ parties to consider mediation, enabling adjournments for this purpose, and power to award costs to those unreasonably refusing to engage;
  • Placing  an obligation on mediators to inform the parties of their qualifications/training, and to report back to the court on outcomes.

The Minister is to forward the draft Bill to the Joint Oireachtas Committee for Justice, Defence and Equality prior to publication. The Committee has until 1 June 2012 to report back to the Minister.

(With thanks to Jarleth Heneghan & Cassandra Byrne).

China – new legislation on police detention

A post examining dissension in undemocratic jurisdictions
With thanks to the Guardian 8 March 2012
Photograph: David Gray/Reuters
Earlier this month, China unveiled legislation allowing police to hold those suspected of ‘state crimes’ at unknown and unnamed locations, but after much controversy, has removed a secrecy clause permitting police to hold some suspects for up to six months without informing their families.

State security crimes include subversion and other vaguely-worded charges often used against dissidents.

Having spent 11 months of the last five years in Buenos Aires I became familiar with the stories of ‘los desaparecidos’ of Argentina – up to 30,000 dissidents that in the late 1970’s were spirited away at nightfall, some to be dropped from aircraft into the Atlantic, many never to be seen again. Now, each Thursday, the female relatives and supporters of the disappeared silently circle Plaza de Mayo (between  the Presidential Palace Casa Rosada and the Parliament Congreso) – in memory and in protest.

With the amendment of the Chinese legislation, legalised disappearances may be avoided in  China, but the overall import of the new procedure is far from clear.

When Pu Zhiqiang, a Beijing lawyer who has taken on sensitive cases such as those involving dissidents, spoke out about the issue of enforcement of the legislation, police attended his offices to prevent him making further comment.

How many lawyers working as we do in democratically accountable systems take for granted some aspects of  important protection offered by our laws against state control? Are we  conditioned in a moderate climate to perceive the excesses of unaccountable detention as a distant and unlikely threat? Now within our global environment, it is not even more important that we are prominent and heard on these issues? Perhaps that is one of the essential justifications for an independent Bar; something worth fighting for.

Paper-free Revisited

A post describing my ‘paper-free’ experience in Family Care Proceedings

For the first time in Care Proceedings, I have been to court without the case papers. Yes, I remembered my flask, but there was not a file to be seen.

At this stage of the proceedings (Interim Care Order) there were only eleven critical documents, all of which were all safely stored and available on my Samsung Galaxy Tablet which nestled in my inside jacket pocket. The documents comprised a mixture of Word, PDF and picture files, received by email attachment and which I had read on screen the night before.

I have to admit that I rather envied the sensible IPad owners who, with that clever little IAnnotate App are able to highlight text and book-mark pages. Whilst the rest  turn pages, the Ipaders simply flick between documents with the dab of a fingerprint.

I found the Galaxy tab near perfect for the job. With RepliGo Reader 3.2 the IAnnote features for PDF’s are available for Androids. Click on this link to watch the video demonstration, although I suspect you will not need the ‘night mode’ unless you find yourself listed N/B 1400 hrs before the Northallerton FPC.

The search facility is of considerable use, allowing you to find the precise point without trailing visually through page after page. Also important is the facility to click to the list of your annotations. From there you have simple and fast access to the individual entries you have made. The digital signature operation is also of great use and will allow you to sign documents under the EU Electronic Signatures Directive and section 7 of the Electronic Communications Act 2000.

If you are contemplating the digital age with relish, my advice would be simply to go for broke and get an IPad 3 with 4G. This way you will have access to everything you want, when you need it. For example, the other day my opponent – a London silk – was able to access each statute and statutory instrument as it was named, although I am not too sure how comfortable he was with the Magistrates’ Courts (Hearsay in Civil Proceedings) Rules 1999!

To undertake, or simply to agree?

A post about Practice Direction 33A and its implications for enforcement of orders

Family practitioners take note- Stephen Alderson has delivered another very sensible letter concerning orders in family cases. Knowing you, as only the DS Blogger does, many will simply have clicked on his message and told yourselves that you will read it later. And who can blame you. You are too busy with important matters.

In the spirit of attending to your needs, saving you time, and making things simple, the blogger will tell you what you need to know.

First, Philip Waller, senior DJ at the Family Division Principal Registry has been chatting with his fellow DJ’s around the block. They (including Stephen Alderson) are really concerned about PD 33A. It is to do with ‘undertakings’, and the attachment of a ‘disobedience’ warning.

Now that we barristers have the job of drawing up the orders, we need to get them right. In summary, whenever you thought about including the word ‘undertaking’ in your order, forget it unless you want the offender locked up or flailed. Instead, try the word ‘agreement’ or ‘agree’. It is perfect in a recital,  and carries with it the clear intention of the parties. This way, the judge does not have to threaten imprisonment  for any transgressor. They are happy; and you have shown yourself to be an intelligent drafts-person. DJ Stephen Alderson warns “be prepared to answer the question as to why you need a penal notice”.

Interestingly, the point goes a step further than first appears. Is this another example of the ‘modification’ of family proceedings, away from ‘the order of the court’ to ‘the agreement of the parties’? The blogger thinks it is, and applauds the move. Before too long, court orders will comprise a recital of agreements rather than a record of findings and requirements.

Perhaps another reason to get a mediation qualification?

Why the new blog?

A post to explain why I am writing freelance rather than as editor of Dere Street blog

Some, if not all followers of the DSB blog will be wondering why the blog has migrated and transfigured.

There are two reasons – first, a small number of non-subscribing readers raised anonymous concerns that the blog may be confused with a certain web site. It was feared that the popularity of the blog was overtaking the hit rate for that site and, dominating page 2 of search results, was imminently to overtake the main site in Google ranking. The second was the blogger’s most recent post (now removed on formal request). With deference to the requester (for whom the blogger has the utmost respect) it was so removed and will remain so for the foreseeable future.

But blogs, however popular and widely read, are not for the faint hearted. They tend not to bow to anything other than the weight of peer pressure imposed through comment and contribution on the blog itself. And so the old blog, with its nomenclature-association with a ‘particular grouping of barristers’, has given way to a personal blog, for which the blogger alone bears total and unequivocal responsibility.

The change has resulted in the highest hit rate since the middle of February, a further 50 followers having subscribed today. Clearly the blog is read, and is providing a useful service to many members of the Bar at all levels, both on and off circuit, and to solicitors and others involved in the administration of justice. How gratifying: a consequence that sweetens the memory of the anesthetic administrated before the blog’s most recent surgery.

The blogger hopes that you will continue to subscribe, if only to keep up to date with the latest news. Perhaps now, the blog can address some of the more prickly points that hitherto were out of reach. Maybe in the next few weeks, those of you who have sought to avoid entering the turbulent pool of political correctness, can (along with the blogger) enjoy the freedom of surfing larger and more exciting crests.

The Price is Right?

A post to examine the effect of the Legal Services Act and its impact on lawyers and the public

How are you with fixed price legal services?

On 19 February 2012 the Financial Times reported the first known ‘brand-share’ arrangement between a barristers chambers and a solicitors firm in the UK.

Launched on Monday, the scheme offers its clients a range of legal services on a fixed-price contract, rather than charging by the hour – or on a project basis. The holding company, LawVest, part-owned by DLA Piper, is fielding ‘Riverview Chambers’ and ‘Riverview Solicitors’ to undertake the work. Riverview Chambers are apparently a disparate (but quite prominent) group of self-employed silks and juniors from other practices, who will take cases on a fixed-fee basis under a ‘door tenancy’ arrangement with LawVest.

Riverview will not charge hourly rates, nor maintain City of London offices, having decided to operate from the Wirral, sending out their listed solicitors and barristers to visit their clients at their place of work. Clients are to be offered a yearly flat fee and Riverview Solicitors will provide a full service up to the point of litigation. Lawsuits are charged on an ‘ad hoc’ basis.

Novel to the legal market with the Legal Services Act, cases can now be funded by third party investment, including hedge funds, who will recover outlay and profit from successful judgments and awards. Yes, this is the arrival of the investment business in our £23bn legal service marketplace here in the UK.

The Legal Services Act has given England and Wales one of the most liberalised legal markets in the world. But is this really a good thing for the client? How do you feel about 3rd party business investment in litigation? What do you think about working under the direction and financial control of an alternative business structure, whose executives may be focussed on profit rather than justice?

 

Judged by Judges

A post examinining the Quality Assurance Scheme for advocates: merits and pitfalls

Calling all criminal practitioners. What say you to the Quality Assurance Scheme for Advocates? Are you ready to be judged on your next trip to Teesside Combined Court Centre? Is it likely that you will make the grade? Have you boned yourself up on the 161 criteria?

For those who are not yet familiar with the QASA, it seems that we are to be graded by the Judges. Next time you make that ‘marginal’ submission on your client’s instructions, watch out for the Judge’s pen. If it is yellow, you are a beginner and your very career hangs in the balance. If it is cerise and you are desperate for silk, all may ride on your draw of Judge. Let us hope it is not the one you upset last week, or you will have to forget the whole thing and ask your clerk for a couple of briefs in the magistrates court instead.

Appendix 1: (just beyond page 41 of the Great Little Guide to QASA  produced to make the scheme transparent and simple), sets out the ‘statement of standards’. Then scroll down to Appendix 2 to see how the Judge’s will decide your fate. But if you are truly ambitious, make sure you read (and learn) all two hundred pages. You know what they say about exams – it is all decided by the way in which you answer the questions.

The blogger tends towards Lord Justice Moses‘ approach to the topic. There does seem to be something uncomfortable about standing up to the judge who may forever damage your prospects at the Bar. C143 – “press your client to plead guilty”  looks like a recipe for disaster, as does B132 – “when tears appear, throw your hand in”. Beginners should watch A29 – meaning “do what I want you to do” and B91 – “be nice to witnesses”. B121 means “stop pressing just before the witness confesses” but B140 is the killer – “do as the judge pleases, and don’t upset him/her”.

The future of criminal advocacy is to be in good hands. It is now no longer the jury that you will have to please, but the judge.

 

The modern tradition: a new concept of history

A post requested of several readers, revised and re-posted from the former Dere Street Barristers Blog.

 Photo by www.oldukphotos.com

 In 1385 by Royal Ordinance, York acquired its very first legal counsel, the ‘Recorder of York’ – a gentleman “with knowledge of the law and of good reputation”.

In the intervening 627 years this fact has been obscured by the passage of time and memory.

In 2012, York gained its first national grouping of barristers-at-law, with over 100 resident gentlemen and ladies with knowledge and practice of the law.

What better reason than to start a new tradition:

the ‘ Barristers’ Annual Procession’.

About the Idea

Inspired by C J Sansom’s Sovereign, recalling King Henry V111’s 1541 progress from London to York, the Barristers’ Annual Procession is proposed as a secular celebratory event to mark the important and cherished relationship between the City, the Bar and the Judiciary of York.

On a selected Saturday morning annually, robed barristers, lead possibly by the York Waits, would conduct an annual procession from Toft Green (formerly Kings Toft) and Bar Lane to Micklegate Bar, to ascend the city walls. Travelling west, they descend at Skeldergate, crossing Terry Avenue (reminding us of our late colleague Robert Terry) on Bishopsgate Bridge, turning north into Tower Street to cross over to the Eye of York.

On the steps of the Crown Court would be the current incumbent of the Ordinance – the Recorder of York, flanked by the Sheriff of York, Under Sheriff and Chief Constable of North Yorkshire Police. The senior barrister present would present their respects to the Recorder of York together with a white rose, marking the preservation and protection of the rule of law for York for the coming year.

Following the ceremony, the Recorder, Sheriff, Under Sheriff & Chief Constable would be invited as guests to luncheon at the Merchant Adventurers Hall, Fossgate.

Members of the Bar should see this idea as an opportunity to build and maintain professional relationships – with the city, with each other, and with personal guests.

Guests for the luncheon could include chosen solicitors, spouses or partners, seated by ‘Inns of Court tradition’, in messes of four.

Whilst the luncheon would be a private affair, the procession and ceremony at the Eye of York should be a very public event. Local press and outside broadcasting would be invited to capture the occasion, and the City of York Council encouraged to publicise it as a York annual event in their calendar. Departure from Toft Green may be collaborative with York Brewery, marking the importance of the merchants of York to the historic peace-keeping role.

Such an event would afford members of the bar an opportunity to show thanks to their solicitors for their support over the previous year, and to maintain both civic and social bonds that are so essential for the future of the Bar.

Parents in Care Proceedings: Parties or witnesses?

Photo by Gerard Van der Leun

“The worst aspect of care proceedings arises not from the unfair intervention of local authorities, but the unrealistic expectations of parents”.

How controversial is that?  As barristers we spend a significant proportion of our professional lives exposing, or modifying local authorities’ incursions into the family lives of our clients, and sometimes with great success. The blogger recalls intervening in a recent case where the trial judge considered that both the local authority and the Children’s Guardian had got it very wrong, and ordered the return of the children to mother within hours of the judgment.

But quite often there is a fundamental issue with regard to parents’ care, or at least a real cause for concern that needs to be addressed. In such cases is the current adversarial process the best way of addressing it?

The Human Rights Act capture of Article 8 of the European Convention on Human Rights arrived some time after the then Mr Justice Judge said that ‘the difference between public bodies and individuals is that individuals are permitted to do anything not prescribed by law, whilst public bodies may only act as the law permits’. Both tell the same story – that individual rights and freedoms come first in a democratic system of law making.

Where then the question of party status for parents in public law children cases?

The ‘paramountcy principle’ which drives the Children Act 1989 arose as we know from a long history of trial and error in relation to child care and protection. Yes, we have moved some way from the  corrupt Tudor Court of Wards, where Wardship was determined according to the value of the ward’s estate. The blogger recalls his long weekend in Windsor with the then Mrs Justice Butler-Sloss and the then Mistress of Girton College, Mary Warnock whilst some of the structure of the Act was considered. Putting the child first was its aim, but did the Act really accomplish this?

In the perennial tension of competing rights and duties, the voice of parents was retained as a constitutional and jurisprudential ‘must’. But is it essential to keep it in the form of party status?

It has recently been suggested that the controlling management of children’s cases by local authorities should be counter-balanced by an increased management role for the Children’s Guardian.

Imagine a case where, with early, properly resourced intervention, a Guardian working with the Children’s solicitor takes an overall management role in relation to care proceedings. Rather than the long line of different judges (or magistrates), it is the Guardian’s lawyer who ‘case manages’ the proceedings, convening advocates meetings, suggesting a proper approach to the instruction of experts where the parties agree, ensuring that the statements prepared and filed do not replicate each other, where positions are clarified and recorded at the earliest stage; and where recourse to a judge occurs only where the parties dissent from the Guardian’s steer?

With this alone, the five lever arch files could be reduced to two (0r better a small e-file), the number of time consuming and resource expending hearings could be contained to a minimum, and perhaps a less adversarial approach to care proceedings would be possible.

The next question would simply be “why not release the parents from the case management role as parties, and give them automatic (and compellable) witness status”?

In a child-centred system of care proceedings where the children are represented by a Guardian Case Presenter, the party roles could be almost invisible. Witness statements from the parents could be taken by the Guardian’s lawyer and these would become their pleadings in the case. Party status of the local authority could be modified, so that ultimate control was wrested away to provide the necessary balance of rights and obligations.

Clearly, there will always be a need for ‘party status’ for some parents – where serious allegations are to be adjudicated, or where significant harm as defined on Form Ex506 would justify an enhancement, but in so many cases parents would simply be relieved of an unmanageable burden contained in an adversarial process.

Over the next decade or so, will we see an end to the adversarial approach to family law? The signs are already there in private law cases, and the cost/time/stress reasons are becoming more prominent. Is this the last era of the lawyer-led family law dispute? Now, you must have your own thoughts about this? Why not reflect them here on the blog?