Features

Melissa Coutinho, co-Chair of the Employed Bar, reports back to Counsel from the 2012 conference.   

A gloriously and unseasonably hot March 21st this year, saw barristers hurrying across Lincoln’s Inn Fields with envious backward glances at those sunbathing and enjoying an al fresco lunch seemingly without a care in the world. They were heading towards the Employed Bar’s Annual Conference. This year’s theme was “A week in the life of an Employed Barrister,” which was chosen to demonstrate that there is no typical week for such a soul. It focused on the breadth of work and variety of working arrangements that employed barristers enjoy, within the parameters permitted by our Code of Conduct. 

John DeStefano, an American lawyer and Pegasus Scholar, recalls for Counsel his experiences of English advocacy.  

The first time I met the Pegasus, it was not in the Inner Temple. It was in America. Nestled in a side street near the Charles River that runs through Boston is a little white house most locals don’t even notice. On top of the modest facade sits an emblem of the winged horse. This is one of America’s oldest living publications, a campus magazine we call The Advocate. 

Reflections on whether the Bar’s days as an independent referral profession are over  

June 11, 2012: Where a man feels pain he lays his hand.
Dutch Proverb

A return to the Monsoon season together with overdoing it socially at a legal conference gave me a rather nasty chill, which has left one of those irritating coughs that will not quite go away. It is one of the peculiarities of human beings that whilst we are able to feel genuine sympathy for major disabilities, we simply cannot cope with minor medical irritations – either as patient or spectator.

Therefore, I decided yesterday that I should visit the quack. At my doctor’s surgery there are two kinds of reading material: one is in the form of rather basic posters with scary health tips and the other is in the form of light-hearted magazines, presumably to distract patients from fear of the impending consultation. We have only the latter in Chambers and have avoided police faces saying: “Don’t Steal!” or “Avoid Provocation!”

On the other hand, the medical profession has mastered its referral structure much better than the Bar. In my case a doctor could tell presumably that this was one of those hyper-sensitive throats following a chill. A small brown steroid inhaler and I could be packed off to Chambers safely. On the other hand, if I return in two weeks with the same nagging cough, the chances are I will be referred for x-rays or a scan or even a bronchoscopy. A third visit would make this inevitable. With the tests come the specialist consultants, and I would be transferred to their tender mercies until such time as the cause of the illness had been uncovered and I had received all available treatment or the medical profession had given up in bafflement.

And why would this be done? Because it is ingrained in the general practitioner’s very training. He or she understands and accepts the ambit and limitations of professional expertise and the need for referral at certain defined points to acknowledged experts in the field. And, to constrain the slightly less conscientious
practitioner, there is the General Medical Council to regulate whether appropriate referrals have been made.

When students of early twenty-first legal practice come to look at the corresponding referral mechanisms in publicly funded legal work, they will possibly be perplexed to discover how little of this referral ethos still exists in our world, particularly as publicly funded work includes people who are disadvantaged, less well-heeled and those with educational or social difficulties.

Adopting the medical analogy, we have no acknowledged recognition of what passes for a “condition” that requires referral to a barrister, or whether any condition would nowadays necessitate such a referral. At the same time, powerful forces act against referral: the financial interest of the referrer, and the lack of knowledge about referral by the client. Every patient a doctor sees has heard about consultants and knows he can ask to see one.

The profession has no rules as to what should necessitate such a referral and it is difficult to see whether the over-arching regulator has even recognized the issue, let alone considered guiding the profession and the public about it. Some even think that referral fees should be permissible, something so awful that it beggars belief that anyone claiming to act in the public interest could support it in a professional setting. And we have not even got on to the farce of costume confusion, now rampant in the Crown Court.

I told my doctor all this whilst he tried to stick what looked like an ice-lolly stick down my throat whilst wearing a baseball cap to which he had strapped a halogen light.

He beckoned me from the couch to his computer where a 3D anatomical model was revolving on his screen. He used his mouse to point to parts of my throat.
“You know your trouble?” he said. I looked vacant. “You talk too much!”
“You know what it is then?” I asked.
“You’ve got that curse of the gabbling professions - Clergyman’s Throat. Stop talking so much and it will get better!”

I travelled home relieved, but, this morning, the thoughts still nagged me, although I have kept the diary open and the mouth shut. If we still need a referral profession in law, then should not legal regulators be considering at the least when referral to counsel generally, and to leading counsel in particular, is appropriate and, indeed, necessary – particularly where vulnerable people are involved? On the other hand, if our day as an independent referral profession is done, isn’t it time we faced up to the fact? At the moment, in publicly funded law, we seem to have all the regulatory shackles of a referral profession and, increasingly, few of its advantages.

William Byfield is the pseudonym of a senior member of the Bar. Gutteridge Chambers, and the events that happen there, are entirely fictitious.

The annual Kalisher Fund evening took place in May, playing to a packed audience in Middle Temple Hall. Counsel’s David Wurtzel was there Barristers are justly proud of the pro bono work they do to support new entrants at the Bar. Likewise, our colleagues in the acting profession have generously donated their time in the cause of raising money to help young lawyers whose fictional counterparts they have sometimes played.  

These are the inspirations behind the annual “Kalisher Event” which this year took place on May 20, when a packed audience gathered in Middle Temple Hall. They were treated to a performance of ‘Murder on Air’, a double bill of Agatha Christie radio plays. 

Caroline Wigin provides a practical approach to the evidence of children 

On the 26th February 2010, Child Q was put to bed around 8.00 p.m. At that time he was happy and healthy. In the household were the child and two adults, his mother and his mother’s cohabitee, R. At 9.00 a.m. on the 27th February 2010, an ambulance was called and at 10.00 a.m. he was received into A&E. He had extensive bruising to the groin, back, face and leg. 

Job title: Barrister, 2 Bedford Row

2 Bedford Row consists of 18  silks and 55 juniors practicing domestically and internationally in their specialist areas of  Crime, Fraud, HSE, Professional Discipline, Regulatory and Sports Law and has a high profile client base both here and abroad .

Tell me about your day today and the week ahead?

I’m prosecuting a trial in Croydon where there are allegations of serious sexual misconduct involving a teacher on one of his former pupils. I’m starting another trial next week in central London dealing with the paedophile unit and I’m also lodging documents with the Court of Appeal in respect of an appeal against conviction and making a trip north where I’m representing a defendant charged with relatively serious fraud allegations.

A judge’s view

Mr Justice Christopher Clarke gives Counsel a view from the Bench 

It is a commonplace observation to bewail the size of modern judgments compared with the economy of our distinguished predecessors. What they would have thought of the plethora of documents with which even a modest civil case is now encumbered I dare not to think. In the days when any copy had to be made by hand it was remarkable how few documents you could deal with. 

John Newth concludes his review of the special tax provisions that affect practising barristers, focusing on the tax surrounding expenses and barristers’ clerks. 

In Part 1 (Counsel June 2012), I dealt with the end of the cash basis and the consequences of having to include work in progress at full value after June 2005. The effect of these provisions on newly qualified barristers, and numerical examples showing how the statutory changes could work in practice, were also included. In this article I turn to the practical issues of tax deductible expenses and the taxation of barristers’ clerks. 

Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) recently published its follow-up to the 2009 review of CPS in-house prosecution advocacy and case presentation. Chief Inspector Michael Fuller QPM gauges progress. 

The CPS’s aspiration routinely to conduct its own high quality advocacy in all courts, and across the full range of cases, is realistic and achievable. However, it is dependent on the current high-level focus on quality being sustained and advocacy experience being developed. 

David Hammond continues recounting his experiences as a UK representative for the Foreign and Commonwealth Office (FCO) and legal advisor to the European Union (EU) in Somalia for the establishment of the East African Legal Advisory Programme in support of the current EU counter-piracy programme.  

In the short period of time the EU team had in both Somaliland and Puntland, I had concentrated rounds of engagements with Ministers for Justice, Attorney Generals, Directors of Public Prosecution and Ministers of Interior and Security to name but a few. Their unified message was reflected in all of our meetings. In addition to the humanitarian assistance provided through the United Nations (UN) and other Non-Governmental Organisations (NGOs), further expert support for government departments was required in terms of monitoring, mentoring, training and advisory roles in the maritime and counter-piracy environment. Those departments needed western legal expertise to continue with the advancement of their own domestic legislation, judicial engagement in the lawless coastal areas and development of general legal skills. Consequently, our offers of such assistance were warmly welcomed.