Features

Do the Right Thing is a charity through which disabled people take part in the training of others. Graham Hopkins explains how the Bar could benefit when training its members in how to deal with vulnerable witnesses.  

With some cracking one-liners and visual jokes, the Dublin director Damien O’Donnell’s 2004 comedy-drama “Inside I’m Dancing ” makes a powerful plea for equality for disabled people in society. There are undoubtedly convincing and strong performances from the lead actors. But therein also lay the film’s controversy. As BBC critic Neil Smith pointed out, O’Donnell, by “casting able-bodied actors as his wheelchair-driving protagonists unavoidably weakens his argument.” 

Neelam Sarkaria asks whether it is time for the first prosecution under the Female Genital Mutilation Act 2003  

The making of an allegation of Female Genital Mutilation is affected by a number of factors, including cultural taboo and the reluctance to report the crime to the police, especially as other family members may be involved. This makes it even harder for the victim to come forward to report the crime and to make a statement. Criminal justice agencies are working closely together to raise awareness and to ensure that whenever cases are reported, they are thoroughly investigated. Support and protection is also offered to victims and witnesses throughout the criminal justice process. Educating communities to abandon the practice is considered the best way forward to break the cycle of mutilation. 

From January 2013, as QASA (Crime) starts to roll out across the country, judges will be the evaluators of the advocacy in Crown Courts. Here,  Counsel looks at the training the judiciary is receiving and the criteria it will have to apply.  

An essential element of any quality assurance scheme is confidence in the integrity of the process. When the Quality Assurance Scheme for Advocates (Crime) (‘QASA’) begins to roll out in January 2013, all Crown Court advocates who do trials will be evaluated by the judiciary. How can the judges, given the role of assessing the quality of advocacy in their courts, produce results which are consistent and based on the advocacy itself? To answer that question, and before the scheme goes ‘live’ on any circuit, every judge who has agreed to take part must undergo a seminar training. 

Job title: Silk, Doughty Street Chambers 

Doughty Street Chambers is a human rights and civil liberties practice with a national and international profile in criminal, civil, administrative, public and international law.  

You represented Tony Nicklinson – who suffered ‘locked-in’ syndrome - in his landmark case challenging the law on assisted dying. How did you become involved in that case?
Tony’s case is a progression of the work I have done throughout my career around autonomy and choice.  I have a public law and human rights practice which emphasises, among others, the rights of persons with disabilities. Autonomy links the right to make end of life decisions with, for example, the right of disabled persons to live independently in the community, and both are features of my practice. I represented Debbie Purdy in her successful appeal to the House of Lords which resulted in the DPP issuing his guidelines on prosecution in assisted suicide cases. The solicitor in Debbie Purdy’s case, Saimo Chahal, and I have worked together for many years so it was a natural fit for us to do so again for Tony and his family, who are carrying on the case now Tony has died. 

David Wurtzel examines the giving of evidence by children, their cross examination and section 28 of the Youth Justice and Criminal Evidence Act 1999  

On July 24 we marked the tenth anniversary of special measures, the legislative package which was brought into effect in 2002 in order to improve the quality of evidence of vulnerable witnesses in the criminal courts ‘in terms of completeness, coherence and accuracy’. 

It was therefore an apt time to publish “Children and cross examination: time to change the rules ?,” a book based on papers delivered at an internationally-attended seminar at Cambridge University in April 2011. It is edited by Professor John Spencer and Professor Michael Lamb; Professor Spencer wrote the introduction and conclusion. The underlying issue in the book is the need in England to bring into effect section 28 of the Youth Justice and Criminal Evidence Act 1999. This is the one special measure still languishing unused on the statute book. It would allow a vulnerable witness’s entire evidence including cross examination to be pre-recorded. The witness would not then have to attend the trial and the whole process would be completed for them much closer in time to the events in question. 

Toby Craig and Charles Hale review this year’s party conference season for Counsel 

Life imitating art
Returning to our screens to satirise life in Coalition, The Thick of It  has long sought to shine a light on some of the more ridiculous elements of party politics. Its success lies, in part, in the extreme caricatures it adopts. Real life couldn’t possibly be that bad. And that must have been on the writers’ minds when they thought up an episode in which the fictional Lib Dem team agreed to launch a ‘Community Bank’, requiring a mere £2bn of public funds, to the horror of their Coalition partners. So imagine their glee when that episode was broadcast in the same week as Vince Cable took to the Lib Dem conference stage to announce...a state bank requiring £1bn of public funds and extensive Government guarantees. Apparently you could make it up. And there was still time to bring back the spectre of a Mansion Tax, which lasted all of a few days before the Conservatives ruled it out. 

A. Hayden QC, HHJ J. Penna, M. Allman, S. Greenan, E. Latvio
ISBN: 978 1 84661 319 7
March 2012
Publisher: Jordan Publishing
Price: £55

Children and same sex families (Family Law, Jordan Publishing 2012) by Anthony Hayden QC, Marisa Allman, Sarah Greenan, Elina Nhinda-Latvia and Judge Jai Penna highlights the many complexities which arise from same sex couples becoming parents.  The very meaning of parenthood is being re-evaluated in courts dealing with same sex couples, especially if such couples have an arrangement with a sperm donor or a surrogate mother. The Human Fertilisation and Embryology Act 2008 (HFEA 2008) does away with the old presumption that a biological parent is, in fact, a legal parent, as the book’s fascinating chapter on parenthood shows in detail.  

Toby Craig and Charles Hale analyse the recent reshuffle and its implications for the Bar 

Shuffling the deck

Cecil Parkinson once observed, probably with a fair degree of personal experience in mind, that “in politics, you get what you deserve, rather than what you want”. Both, it must be said, are relative concepts. But when David Cameron finally undertook his first major reshuffle, two and a half years into the Coalition Government, the conflict between desire and desert would have struck a number of disappointed Parliamentarians. The problem for many MPs is an inability to distinguish between what they want and what they deserve. Politics is necessarily a fairly ego-driven business and never more so than when a reshuffle comes around. 

Jane Treleaven and Sa’ad Hossain report on the International Council of Advocates and Barristers’ advocacy-themed World Bar Conference.  

The International Council of Advocates and Barristers arranges a World Bar Conference every two years. This year’s conference was devoted to the theme of advocacy itself with participation from skilled and superlative advocates from around the world. 

Whether preparing for a case or a wedding, the best laid plans... 

September 9, 2012: “People only see what they are prepared to see.” - Ralph Waldo Emerson. 

Human beings seemingly spend a vast proportion of their lives preparing for things, only to find that when the event occurs they are, in fact, wholly unprepared. It is a perpetual theme of the Criminal Procedure Rules that we are all to spend endless amounts of time before a trial getting prepared, but which of us has ever arrived at court to find our opponents and co-counsel beaming and ready to go, our clients happy that they have told us all we need to know and a judge in command of the situation, only waiting to fire the starting gun? You may get some of it. You never get all of it. In fact, the more the case might seem to be suitable for such careful forethought, the more that chaos will intrude: the last-minute service of evidence, the lay client who starts sending you notes for the first time half-way through the initial witness, people who turn up to court with some file that has never previously seen the light of the day from which crucial nuggets fly forth – or not as the case may be.