EXCELLENCE IN PRO BONO PROVISION: INNOVATION, COLLABORATION, COORDINATION
Michael Todd QC reviews this year’s early bird session
Who better to contextualise, and to provide a timely and vivid reminder to us all, of the crisis faced by the frontline pro bono agencies than Sir James Munby, President of the Family Division, on 31 October of this year, when giving judgment in Re D (A child)  EWFC 39. It was to, what he described as, Munby P’s trenchant judgments that Alistair MacDonald QC, Vice-Chairman of the Bar, alluded in the opening “early bird session” on pro bono at this year’s Bar Conference.
Re D (A child)
The issue in the proceedings was whether “a little boy, D, (should) live with his parents, or, if they cannot adequately look after him, with other members of his wider family, or should he, as the local authority, Swindon Borough Council, argues, be adopted outside the family.” The father has a learning disability. Being a “protected party” within the meaning of Rule 2.3 of the Family Procedure Rules 2010, as a matter of law he is not able to act without a litigation friend.
The Official Solicitor was not willing to act as the father’s litigation friend unless the solicitors agreed, as they did, to indemnify him against any adverse costs orders. The whole of the court’s judgment in Re D repays careful reading, to get a real appreciation of the “LASPO effect”, but the President perhaps summed it up when he said: “Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.”
Not having heard any submissions on behalf of any emanation of the State, he expressed the preliminary view that “(t)his is, it might be thought, both unprincipled and unconscionable.” In his judgment, Munby P praised the solicitors and counsel who “to their enormous credit, and acting in the highest traditions of the profession, are acting pro bono, that is, for no fee and paying their travel and other expenses out of their own pockets.” The solicitor, Rebecca Stevens of Withy King, was singled out for especial mention. We can surely be proud of them; but can we still be proud of our justice system?
It is now some 18 months since LASPO came into force. Alison Lamb, CEO of the Royal Courts of Justice (RCJ) Advice Bureau, spoke of the enormous increase in the number of applicants seeking advice and assistance, of which a large number have mental health issues (a point echoed by Rebecca Wilkie, CEO of the Bar Pro Bono Unit), and of which 80+% have English as their second language. Pre-LASPO the split of those seeking assistance was 50:50 between claimants and defendants; now defendants account for in excess of 60% of applicants. According to Rebecca Wilkie, in the calendar year to September 2014, the BPBU had received 1,600 applications for assistance, more than the total in the full calendar year to December 2013, and it continues to receive applications at the rate of 186 cases per month, up from 107 per month in 2012, an increase of some 74%. Of those applications, the BPBU is generally able to allocate about 80% for pro bono assistance; the majority of the unallocated cases, because of their sheer number, are family cases, some of which are child related. District Judge Sarah Davis, who started sitting in East London in April 2013, and thus has felt from day one the full effect of LASPO, said that in the family courts some litigants have begun to play and abuse the system, with a view to obtaining funding, by making unwarranted allegations of domestic violence and abuse.
A cadre of unqualified, unregulated and uninsured “McKenzie friends” is developing, who demand payment, often of sums which would secure representation from many, not just the youngest, members of the Bar, in return for, what Judge Davis described as, “rubbish”, focusing their submissions on Magna Carta and the Bill of Rights, rather than on the more pertinent point, for example, as to their ability to pay their rent.
What is being done
Judge Davis remarked that the comment had, just recently, been made to her that the legal profession was “probably the only profession that does so much pro bono work. How many pro bono plumbers do you come across?” she asked. Tim Fancourt QC, former Chairman of the Chancery Bar Association, explained the schemes established by members of the Bar, practising in the Chancery Division, the Family Division, and the Queen’s Bench Division, largely through their SBAs, to provide pro bono representation to those seeking to make, or defending, interim applications. 150 Chancery barristers have participated in the Chancery scheme, with 60% of those having volunteered more than once. Judge Davis praised such schemes, commenting that “judges are delighted to see and receive pro bono help.”
Alison Lamb explained how the Ministry of Justice had now committed some £1.4m to enable a strategy for Litigants in Person (LiPs) to be developed, to encourage more collaboration between agencies and to expand the role of the Personal Support Units (PSUs) at court centres, but at the same time warning that the funding, whilst helping by expanding the PSU, “will in no way meet present needs”.
Whilst working alongside those other agencies, the BPBU will not to be in receipt of any part of those funds. According to Rebecca Wilkie, the BPBU has never sought public/government funding, but as the need to scale up its operations is now “huge”, other outside sources will have to be approached.
Why, Alistair MacDonald QC asked, should the Bar help the Government on a pro bono basis when previously it would have been paid to undertake the work? Tim Fancourt suggested that we have a duty to do pro bono work. We are privileged in what we do,and with privilege comes responsibility. We do pro bono work, not to help out the Government, but to promote the interests of justice.
Rebecca Wilkie put the question in context. She explained that even before the LASPO cuts there were people in need of our help. But now people are in desperate need of help, and cannot obtain it, through no fault of their own.
Melissa Coutinho reviews Lord Hughes’s keynote speech and the Bar Chairman’s annual address
Nicholas Lavender QC opened the conference, setting the scene for a diverse programme of events touching on a variety of topics. He acknowledged that barristers operate in an increasingly competitive legal landscape and made special mention of those practitioners who face difficulties because they work in areas where public funding is strictly limited. His concern for these barristers and what this could mean for justice was apparent. Despite the hardships faced, he was enthusiatic that events such as these allowed barristers to congregate, celebrating and sharing their skills.
The keynote speech for the conference was given by the Rt Hon Lord Hughes of Ombersley. The Chairman introduced Lord Hughes by highlighting the achievements in his career to date, and then (as one Yorkshireman to another) warning others never to ask a Yorkshireman where he came from for two good reasons: first, if he was from Yorkshire, he would have told you that anyway within the first five minutes of meeting; and secondly, it was simply providing him with an opportunity to remind you that his birthplace was the best and console you that you did not share his roots.
Lord Hughes, who was appointed as a Justice of the Supreme Court in April 2013, spoke about the theme for this year’s conference: Celebrating Excellence. In addition to focusing on the qualities that good barristers have, he also spoke about why they are so worthy of mention. Given his background as Vice-President of the Criminal Division of the Court of Appeal (2009-2013), there was very much an appreciation of the difficulties that barristers may face as some doors close, but he placed his focus on the pride he has in our profession and what makes our system of justice so particularly noteworthy.
Demonstrating his own skills as an advocate, he began in a light hearted manner telling jokes that nonetheless contained compelling material as to the benefits of concise and simple advocacy. He urged listeners to remember two key elements in our profession: firstly, that we are a better judge of our client’s best interests than they are; secondly, that we demonstrate our independence by doing what it best for our clients, rather than simply keeping them happy. Further, that given the nature of how our profession operates (eg instructions being privileged), that self-imposed discipline goes as hand in hand with independence as excellence, as there are matters it is only possible to self-police.
He said that listening to advocacy day in, day out, made him conscious of the extent to which our system of justice is dependent on advocates who present cases in court. While he appreciated that for many of us our first question might be “Who is the judge I’m in front of?” – he let us in on the secret that for judges their first question is always “Who’s in front of me?” He admitted that the relief or reverse that was felt, be it in the robing room or the retiring room, is not just about competence or style but the anticipation involved in a journey undertaken from forming a provisional view to having that position reversed or confirmed. He was clearly as engaged by the careful questioning and presenting of evidence, as he was about the need for there to be equality of arms. Acknowledging that as few can claim routinely to possess the wisdom of Solomon, skilled advocates on both sides need to provide assistance. He said that we are fortunate to be in a position not enjoyed by all other jurisdictions where deliberate spoiling tactics are used by advocates; instead, the norm here, even where feelings are running high, is that restraint is generally still exercised. He used the example of judgment being handed down and the respect that usually surrounds this, without the Press or lengthy skeletons to rebut it being involved. He exhorted us not to underestimate things easily taken for granted, be these common civilities or the maintenance of proper standards.
Lord Hughes shared his view that the best method of ensuring that standards and values were not watered down was self-discipline and peer review, and urged that these be used where there is a temptation for commercial realities to be used as an excuse for poor behaviour. He indicated that regulation could not achieve the same results that our own effort could, and applauded the fact that our success is only possible with the maintenance of a good professional reputation. The ability to be able to cope with judges confers important transferrable skills upon lawyers in his view. It is able lawyers that one sees not simply in courts but called upon to work for tribunals and inquiries. The reality is that professional excellence as an advocate is already recognised beyond the courts.
His top tips for performing well were:
- Know the law – but do not flaunt it.
- Rather than lecture, use the law as an unspoken framework.
- Make the witness do the work when appropriate – taking them down a branch until it breaks.
- Know your tribunal – persuade them they thought of your best idea themselves.
He recognised that some doors were closing but said that for good advocates, this generally meant that others opened up. Every new area of regulation that appears represents new work for advocates. For every Inquiry, or non-disciplinary body, lawyers are always included and identified for important roles. He said that it is essential that our values and standards do not go out of fashion. In paraphrasing what another great man said about liberty, he spoke of the prize being “eternal vision” – the price of that, was self-discipline and peer review; these are indispensable and, soberingly, concluded: Good Luck and long may you flourish.”
The keynote session ended with the awarding of the 2014 Pro Bono Award, which was won by Monika Sobiecki of Pump Court Chambers. She was recognised for two separate acts of pro bono work: setting up a legal advice clinic at the Hackney Night Shelter and for volunteering through the Employment Lawyer Association (ELA) 100 Day Project to represent a vulnerable client claiming disability discrimination through a 10-day hearing. The legal advice clinic allows some of the most vulnerable people in society to access free legal advice on housing, benefits, immigration and family law. The clinic was borne out of her desire to help despite not having expertise in all the relevant areas herself; she has inspired other barristers to follow suit and set up other legal advice clinics following the same format. David Malone of 18 Red Lion Court received a special mention from the Judging Panel. He was nominated by Eve Thomas, a former pro bono client, who described his work for 12 months as “Herculean”. Eve, who had suffered domestic abuse, was being threatened with contempt of court for refusing to disclose her “safe address” in case her violent husband obtained this information. David and Eve launched a campaign “Eve’s Law” to ensure that safe addresses are kept secure by courts and other relevant agencies.
LASPO ONE YEAR ON –THE IMPACT OF CHANGES TO CIVIL AND FAMILY LITIGATION ON THE BAR
Chris McWatters looks back on the Remuneration Committee’s LASPO workshop
Since the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in April 2013, the administration of justice has suffered, according to a report published by the Bar Council recently. The report, entitled “LASPO, one year on”, was written by Sarah-Jane Bennett (Head of Policy: Legal Affairs, Practice and Ethics at the Bar Council), and shows there has been a significant increase in litigants in person, causing increase in court delays and an unsustainable pressure on pro bono services. It also found evidence of lawyers becoming increasingly reluctant to take on complex, low value litigation, with many barristers now seriously considering alternative professional futures. Michael Horne, Serjeants’ Inn Chambers, introduced the session by highlighting the background to the report, in particular the Bar Council consultation responses to the Jackson report (reforms to civil litigation funding and costs) and Government proposals to cut £270 million from the civil and family legal aid budget. The Bar Council, he said, had predicted “irreparable damage to the current range of public funding across many areas of law”, as well as “gridlock” in the court system. The Bar Council had also predicted a substantial increase in litigants in person. In respect of the Jackson reforms, the Bar Council had raised concerns about “the significant impact the reforms may have to access to justice”.
Sarah-Jane Bennett said that the purpose of the Bar Council report was to try an assess the impact of LASPO on access to justice as well as on the Bar. “We also felt it was important to see if what we (the Bar Council) had predicted had actually come to pass,” stated Sarah-Jane Bennett. Judging by the findings of the report, it would seem that the Bar Council was right. Helen Curtis (Garden Court Chambers) spoke about the interviews that the Bar Council conducted with barristers and clerks on the impact of LASPO. “I’m afraid that the rather bleak picture doesn’t get any more positive with speaking to people at the coalface,” she said.
The Bar Council interviewed 14 barristers from mixed sets, a clerk and four representatives from organisations providing frontline legal advice, assistance and representation. Curtis quoted extensively from the interviews. According to a QC with a commercial practice there is now no effective access to justice because many cases are simply not economically fundable. “If it means that people can’t take genuine grievances in front of a judge and get justice then that is a constitutional problem which the state ought to be worried about,” the QC said. Commenting on the future practices of barristers at a mixed set, a clerk said “It is not about prospering now, it is purely about survival and whether we can do it and I don’t know the answer to that.” The Bar Council also spoke to a pro bono provider, who told them that they were seeing a 40% increase in applications, with one month rising to 80%. “If applications carry on increasing the way they are at the moment, we are going to get to the point where we are going to have to be stricter. It means a lot more people are going to go unassisted,” the provider said.
Greg Cox (Colemans-ctts) said that the Bar Council has requested the Government complete further evidence-based research into the effects of LASPO. The Bar Council has urged the Government to engage with them and other representative bodies in addressing this issue. “To date, there has been absolutely no response (by the government) to our invitation to engage,” he said. During the debate that followed, particular concern was raised about the increase of paid-for McKenzie friends, who are unregulated, lack legal training, and are undercutting barristers. It also emerged that more barristers needed to engage with future Bar Council reports in order to enhance the effectiveness of evidence-based research. Commenting on the rise of litigants in person, Ian Bugg (1 Garden Court) pointed out that the Government has recently pledged £2 million for a help service that will assist litigants find free legal advice. For Bugg, this is a worrying trend. “There is this presumption that we (barristers) will provide advice for free,” he said. Curtis added that the goodwill of lawyers to provide pro bono services was being stretched beyond reasonable limits.
VULNERABLE WITNESSES IN THE FAMILY COURT
David Wurtzel reports back from this year’s Family Law Bar Association workshop
The only statutory scheme to enable vulnerable witnesses to give their best evidence applies exclusively to the criminal courts, which is where the concept of the vulnerable witness began. Family practitioners know however that vulnerable adults abound in their area of work. The very recent case of In the matter of D (a child) involved a father with an IQ of 50 whose son the local authority wished to place for adoption, thus triggering off complex proceedings in which the President of the Family Division has said that the father needed an intermediary not just in giving evidence but when giving instructions. Then there is the matter of child witnesses, giving evidence where appropriate, following the decision in Re W. Almost the first information imparted to this workshop was that of the imminent meeting called by the President of the Family Division to progress training for family cases where there are vulnerable witnesses: “We are jumping on to that learning curve,” said Susan Jacklin QC, Chair of the Family Law Bar Association who moderated the workshop along with Elizabeth Isaacs QC of St Ives Chambers. Also taking part were Rakhika Hands and Sarah Tyler both of Coram Chambers and Professor Samuel Stein of the University of Bedfordshire and who is a consultant psychiatrist. Delegates were given a copy of the new Toolkit 13 from The Advocates’ Gateway, ‘Vulnerable Witnesses and Parties in the Family Courts’.
The core of the workshop was based on a case study in which care proceedings have been taken in respect of a 10-year-old girl who has alleged sexual abuse against her mother’s partner. The mother, who disbelieves her daughter, has moderate learning difficulties and an acute anxiety disorder. Rakhika and Sarah took turns in examining the witnesses (daughter and mother) played by an actor. After a few questions there was a pause for comment and questions. Professor Stein made several points. One was about the need to ask about concrete things, eg rather than ask the child to describe the various rooms in her house, she could be asked, “what is your favourite room?” and “bounce off that”. He said that questioning was a bit like meeting someone at a cocktail party: you “don’t go straight in” with a personal question but talk about some other things first.
Although the toolkit gives extensive advice on good practice, that was not what was being demonstrated. There was no prior discussion amongst the group about what the aim of the cross-examination was, how it could be achieved, and what questioning would be appropriate for a 10 year old and this 10 year old in particular, some of whose communication skills had presumably manifested themselves in the Achieving Best Evidence interview which had already taken place. Delegates were expected to identify where the questioning was going wrong.
It went wrong most of the time. Simplicity was not in evidence. Most questions had longish preambles; many were prefaced with the ambiguous “do you remember?” (instead of asking straight out, “did you?”) or “can you help us with” or making it clear that someone else (whom the questioner believes instead) has said something different to the witness. Ground rules hearings, which are designed to prevent all this, were only discussed at the end of the session. It was interesting to note what most concerned some of the delegates. Rakhika and Sarah predominantly used open questions with both witnesses. This struck some of those present as peculiar. One delegate said that counsel should be asking leading/tag questions, to “get her [the child] on a roll and get her to agree with things.” This is in fact creates the danger of inappropriate questions leading to unreliable answers which the Court of Appeal disapproved of in 2011 in R v W and M. Another said there was a “real tension” between allowing best evidence and allowing the witness to tell “their best lies”. The criminal Bar has already been working its way through these misconceptions. The family Bar with its commitment to high standards will no doubt work their way through them as well in the upcoming training.
THE GREAT CRIMINAL ADVOCATES AND WHAT WE CAN LEARN FROM THEM
Nigel Pascoe QC reports back from the Criminal Bar Association
Advocacy matters and great advocates are worth remembering. That was the theme of the Criminal Bar Association’s well attended set piece, which was a mixture of reminiscence, analysis, advice and very good stories. Tony Cross QC as Chairman set the scene with spot-on deadpan humour and John Bromley Davenport QC told most of the stories, as well as giving pithy introductions to the other Circuit speakers. He tells them very well indeed, many from Northern heroes of another age. That allowed the legendary F E Smith to take the stage again, Advocate, politician and Lord Chancellor, he was outspoken, quick witted and utterly fearless with “ebullience and charm”. A leap then to a modern hero: George Carman QC, the ultimate jury advocate, both a great trial lawyer and a deadly cross examiner. Other heroes included Sanderson Temple QC, supremely eloquent and spellbinding with a wonderful command of language and the much loved Rodney Klevan QC, who had achieved astounding jury successes.
Elwen Evans QC of the Welsh Circuit said that she would leave stories to the others and chose instead a sparkling and spirited analysis of principles. We watched a highly intelligent and persuasive presentation of advocacy in action, which I thoroughly enjoyed. One snippet: advocacy without goals or reflection is nothing. As an advocate, Gareth Williams QC was supreme as a master of plain unadorned persuasion. Just think by contrast of the box-ticking form-filling approach to dealing with Sentencing Guidelines. At this point, your correspondent just stopped himself from cheering aloud. Gareth Williams was capable of “as consummate a piece of craftsmanship” as you can imagine. In a very impressive performance, Peter Joyce QC managed to isolate key principles with stories of fearless advocates and friends from the Midland Circuit. He stressed and illustrated the need for simple language. Clarity is everything and usually there is only one really good point in a case. Great advocates have the unerring ability to spot it and unerringly jettison the irrelevant. Stories also from the North Eastern Circuit, of course, of Gilly Gray and Wilf Steer, for this session would have been bereft without recognition of those truly great Silks. He paid a warm tribute to a close friend, the late and irrepressible Sir James Hunt. He also picked out a modern advocate, David Crigman QC as the best advocate he knew: using simple language, his course is clear, “unfazed by any judicial intervention”. Praise indeed.
Finally your correspondent tried to capture a little of five great Western Circuit advocates: Joe Moloney QC, Peter Rawlinson QC, Patrick Back QC, Sir Neil Butterfield and Michael Hubbard QC, lost recently before his time. Jeremy Hutchinson QC also stands in that company and happily is still with us. I mentioned the value of distance in cross-examination, illustrated supremely by Joe, but also particularly by John Spokes QC in my generation. Then a short roll call of Circuit Silks: the humanity of Hamden Inskip and the ferocity, in the right case, of David Owen Thomas. The charm of Alan Rawley and David Webster and the undoubted eloquence of David Elfer. And a final word about Florrie O’Donaghue, even more entertaining outside court until late into the small hours. So nostalgia was part of the backcloth, but all speakers were united on the value of an art, difficult to describe but plain when practised well. Its fascination is why we keep on keeping on…
COMBATING FEMALE GENITAL MUTILATION (FGM)
Melissa Coutinho reviews the Association of Women Barristers’ afternoon session
One of the afternoon specialist sessions was entitled: Combating female genital mutilation (FGM). The session was the work of the Association of Women Barristers, ably moderated by Kim Hollis QC, 25 Bedford Row, one of the Association’s Vice-Presidents. Kim introduced the session highlighting the understanding that FGM is recognised internationally as a violation of the human rights of girls and women, constituting an extreme form of discrimination against women. She supported the World Health Organisation stance: that the practice violates a person’s rights to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death. Having set the scene, she introduced the panel of speakers, who as one addressed FGM as an abhorrent crime.
The panel comprised: Detective Superintendent Jason Ashwood of the Metropolitan Police (the Met); Comfort Momoh MBE; Felicity Gerry QC; and Alison Saunders CB, Director of Public Prosecutions.
Each person identifi ed separately the diffi culties and sensitivities surrounding FGM and the steps that are being taken to prevent the continuation of this practice in the UK and elsewhere. The session was unashamedly about education as much as stimulating debate, in order to ensure that more people fully appreciate the issues involved. Comfort Momoh, a midwife at Guys & St Thomas’ Hospital, who runs an African Well-Woman Clinic, admitted seeing one to three FGM procedures being reversed every week, involving both the very young and adults. She medically outlined what FGM involved, describing the total or partial removal of female genitalia for nonmedical reasons. She outlined the possible consequences, which include, immediate (blood-loss, shock, fractures); intermediate (infertility, infections); and long term (keloids, cysts affecting mobility, PTSD, HIV). Her research has shown her than most “cutters” have no anatomical knowledge and use preparations that promote infection. She has found eight-day-old girls to a 37-year-old woman forced to undergo this procedure.
DS Jason Ashwood, the head of the Met’s FGM team, said officers were using a variety of tactics because it was “hard to investigate FGM when the victim is a very young child and the suspect is a family member”. He covered prevention, reporting, investigation and improvement, saying that while the Met only had 69 cases of suspected FGM referred between April and October this year, that still represented a twofold increase in reporting rates over two years. He admitted that while under-reporting is suspected, progress is being made. He considers that exploiting intelligence rather than simply the girls’ parents is the answer. The focus is on organisations working in partnership and new NHS data make it clear that thousands of individuals are affected. The DPP focused on the fact that prosecution was an indication that there had been a failure to protect a child from harm. She said that FGM was unacceptable behaviour and should not be condoned.
Since 1985, FGM has been a specific offence in the UK, and in 2003 new legislation for England, Wales and Northern Ireland came into force, extending scope and sentencing. However, despite the fact that there has been legislation on the books for over 25 years, there have been fewer than 20 cases referred to the CPS and there is only one prosecution going through the courts. Legal guidance for prosecutors regarding FGM offences was produced in 2011, and more recently has been updated and supplemented, with the law currently being strengthened.
Felicity Gerry QC was at pains to point out the veritable raft of legislation that existed across the world but that had failed to stop FGM. Her concern was that the focus needed to be on empowering people to reject FGM and come forward. She contributed to the Bar Human Rights Report that went forward to the Select Committee which she commended to all to read, and shared her opinion that campaigners have been the most successful in educating people about this taboo topic. She warned against cultural relativism amidst the concept that is not “what they do” but that it is children being mutilated; people need protection whether they are migrants or not. She recognised that different cultures and faiths celebrated becoming an adult in different ways but argued that these not involve a razor blade.
Kim concluded the session by asking the audience two questions: should the law be changed to give FGM victims anonymity in court (unanimously agreed) and whether regular checks on young girls should take place as they did in France where there had been prosecutions (a more mixed response). However, the audience were keen for there to be changes to the law, for Civil Protection Orders to be used preventatively, and for reversing the burden of proof for carers/parents where evidence of FGM found. This was clearly a topic where there was appetite to address a terrible and largely hidden crime.
CONDUCTING LITIGATION – EXPANDING OPPORTUNITIES FOR THE BAR
Eugene Grant of the Bar Standards Board reflects on the BSB’s conference session guiding barristers through the changing legal services market and the opportunities arising
At this year’s Bar Conference, barrister Amanda de Winter of Barristers and Co. was asked to reflect on her decision to apply to the Bar Standards Board (BSB) for authorisation to conduct litigation. One of the first barristers to do so, she hardly hesitated before replying: it was “absolutely the right progression for my practice… [it was] the best thing I ever did for my practice”.
When the new BSB Handbook was launched at the start of 2014, the remaining restrictions on barristers’ rights to conduct litigation were removed. The Vice Chair of the regulator, Patricia Robertson QC, told delegates that this meant that barristers could now offer clients “the full choice of a range of services”.
Allowing barristers to conduct litigation enables them to provide a more seamless, start-to-finish service. The audience heard that such continuity is vital because people who need legal services frequently prefer to deal with the same professional throughout – rather than the barrister being one of the last people a client meets (when it is often their specialist skills that clients are really after). Now barristers can have a closer relationship with their clients, from a much earlier point in time. “The consumer loves it,” Ms de Winter said.
Lifting restrictions on conducting litigation has helped to diminish a significant source of confusion for the public. Ms de Winter told conference attendees that many clients do not really understand “why a barrister couldn’t do the same job as a solicitor”. Ms Robertson agreed, noting it had become harder and harder to explain situations such as a direct access barrister being unable to issue formally a claim form at a client’s request. No discussion of barristers conducting litigation would be complete without someone using the “F word” – fusion – in reference to concerns that boundaries between solicitors and barristers are becoming more porous and the Bar’s Unique Selling Point (USP) is being “diluted”. Ms de Winter insisted that such anxieties were not necessary. “I would defy any member of the public not to identify what a barrister’s wig means. We are our best USP.”
Ms Robertson was equally firm in her assertion that the protection and preservation of a specialist Bar is in the public’s best interests. As higher court advocates, solicitors have been competing with the Bar since 1994. Yet barristers remain recognised as specialists. Nevertheless, it is ultimately the Bar’s responsibility to ensure that they do not weaken the strength of their own brand. “Our role as a regulator,” she said, “is to open up the opportunities [for the Bar], and then it’s over to you.” Opportunity was a clear defining theme – underlying the rich range of facts, views, and experiences that emerged during the workshop. The chance to apply for authorisation to conduct litigation was, according to Ms de Winter, “a very real opportunity to level up the playing field” at a time when “the Bar is now facing challenges”.
The BSB believes that allowing barristers to apply for authorisation to conduct litigation will help better equip them to meet the needs of clients in what we know many are finding to be a difficult market. It hopes it will result in more competition in the provision of one-stop advocacy and litigation services. Ultimately, it should also assist access to justice for those clients who lack the expertise to conduct litigation themselves but whose case cannot bear the high overheads of traditional law firms. Throughout the session, barristers were told that the opportunity is there for the taking. To seize it visit: ttp://bit.ly/1w2LyGz and get in touch with the BSB.
ACHIEVING EXCELLENCE IN ADVOCACY AT THE COMMERCIAL BAR
Michael Todd QC discusses this year’s COMBAR session
“Advocacy is the distinguishing feature of what we do,” commented Joe Smouha QC, the Chairman of ComBar, in opening the session at the Bar Conference. That opening reminded me of the comments made, jokingly, I hope, at my expense, to the effect that, for many a Chancery practitioner, being audible was considered an affectation. The fact that the services, both advisory and advocacy, of not only the Commercial Bar but also the Chancery Bar, are in increasing demand in the courts and other tribunals both here and in many foreign jurisdictions is testament to the fact that not only have we learnt to speak up but also that we are also comfortable in doing so.
Historically, newly appointed tenants and other junior counsel in commercial chambers would have had the opportunity of undertaking court work in criminal chambers, whilst others would have the opportunity of appearing in small matters in the county courts. The pressures faced by the Bar, and indeed by all of the legal profession, have meant that those opportunities to develop and hone advocacy skills have largely ceased to exist for the junior Commercial Bar.
A similar, and not entirely unrelated, problem exists in relation to advisory work for the junior Bar in specialist chambers, as law firms develop their in-house knowledge systems, and as clients fail to understand the need to obtain the advice of independent and specialist junior counsel. It was in that context that Joe Smouha posed the question as to how we could ensure that excellence in advocacy at the Commercial Bar would be developed and maintained in the future. That this was a concern for, and the response to responsibility of, both the senior and junior members of the Bar, was not really an issue.
The responsibility for leadership by senior members of the Bar in seeking to involve juniors in providing advocacy services wherever possible, by taking witnesses at trial, or by having responsibility for particular parts of the argument, was generally accepted, although Stephen Moriarty QC questioned whether many clients would be prepared for important parts of their case to be handed over to juniors.
Andrew Walker QC, presently chair of the Professional Practice Committee of the Bar Council remarked that traditionally the junior counsel on the team was expected to prepare the case for trial so that he/she would be in a position to conduct the case should the leading counsel be unable, for whatever reason, to conduct the case. Alas, that principle and approach appear to have faded into the mists of time. The need to obtain the client’s “buy in” to any such proposal was underlined by Mr Justice Knowles, a former Chairman of Combar, and by Mrs Justice Carr, a former Chair of the PNBA, both of whom said they would not be concerned to see the junior counsel on a team undertaking particular parts of a case. Indeed, Mrs Justice Carr said that she was most assisted by really well prepared, clear and neutral submissions and advocacy, from whomsoever they came, and not by any grandstanding by the advocate.
As for the responsibility of the junior Bar, it was recognised that some junior counsel only wish to participate in the more glamorous and larger trials, and may not be prepared to undertake smaller work which might give them greater advocacy opportunities.
But as Lucy Scott-Moncrieff , former President of the Law Society, pointed out, there are opportunities available, for example by undertaking advocacy services for pro bono agencies. People could aim to get a mix of work, some well-paid commercial work and some less well-paid county court or pro bono work. Clerks could be encouraged to market their junior members of chambers at rates which would attract more of the less glamorous work. Apart from maintaining the reputation for excellence of the advocacy services of the Commercial Bar, there is another driver, and that is the requirement of 12 judicial assessors/referees for Silk applications. For some members of the Chancery and Commercial Bars the opportunities for displaying their talents are in decline. The number of cases commenced which actually get to trial, let alone tried to a conclusion, is greatly reduced. Advocates for the most part must now hone their skills whilst undertaking interim applications.
Of course, as Mr Justice Knowles pointed out, there are now greater opportunities for written advocacy, which can also be taken into account. Important as those opportunities are, there can be no substitute for getting on your feet as an advocate. Our adversarial system of justice is built upon, and is dependent upon, first class oral advocacy. It marks us out from other systems. It is, as Joe Smouha remarked, the distinguishing feature of what we do. The need for greater discussion and collaboration between senior and junior members of chambers and their clerks as to the opportunities available and as to the desirability of pursuing any particular course in the allocation of work was evident. We must all be proactive. We must explore and seek out any and every opportunity available to us.
PRE-RECORDED CROSS EXAMINATION AND THE QUESTIONING OF VULNERABLE WITNESSES IN THE CRIMINAL JUSTICE SYSTEM
David Wurtzel reviews the North Eastern Circuit workshop
Twenty-five years after the Pigot Report recommended in 1989 that vulnerable witnesses should be cross-examined on tape shortly after making their complaint, the first pilots under section 28 of the Youth Justice and Criminal Evidence Act 1999 went live in three Crown courts. The North Eastern Circuit workshop, moderated by the Circuit leader, John Elvidge QC, starred (there is no other word) HH Judge Sally Cahill QC, who sits at Leeds Crown Court and is one of the pilot judges, along with Kama Melly, a Circuit practitioner of No. 6 Chambers.
Judge Cahill gave what she assured us is the same presentation she gives to the judiciary. It is all, to say the least, prescriptive: the extremely detailed guidances for good practice have all had to be devised by the pilot judges in order to make this work, and to enable the witness to give their best evidence while ensuring that the defendant gets a fair trial. There is from the beginning a very strict timetable. Police are obliged to start third party disclosure at the same time as the investigation. Within two weeks of the case being sent to the Crown court, the judge has a transcript of the ABE interview. At the preliminary hearing the defence need to identify what the likely core issues are. Within 21 days of this hearing (in turn 14 days after the case is sent) the prosecution case is served including third party disclosure. Amongst the various hints for practitioners it was said that the officer must be at the preliminary hearing or at least on the end of a telephone. Hands-on case management is the key.
Judge Cahill said that the police like section 28 for the sake of their witnesses and do put in the needed extra time. A week before the cross-examination is taped, there is a ground rules hearing, which must be attended by the intermediary if there is one. The hearing is “absolutely vital”. Counsel are obliged to state which of the toolkits on The Advocates Gateway are relevant here, and to have read them. Only a year ago I heard the Chairman of the Bar advise practitioners, who might otherwise not do it, that one should write out one’s first three questions. Section 28 in practice goes way beyond that: every question must be written out ahead of time and submitted to the judge who will vet them for length, appropriateness and relevance, and delete any that breach this. The man behind me at the workshop leaned forward and asked me what would happen if he failed to write out any of his questions, but how to get away with bad practice (or why one would want to) was not discussed here. We were told that one section 28 judge had blue-pencilled 50 of the 53 questions submitted by counsel. Relevant Court of Appeal decisions were cited by Judge Cahill. In addition, delegates had commended to them the 2009 report Measuring up? by Joyce Plotnikoff and Richard Woolfson for the NSPCC and the Nuffield Foundation, and which inspired so much of our thinking about the questioning of children.
Kama Melly corroborated the fact that all this is working and the timetables are being adhered to. The biggest impact she said was on sexual offences because “they don’t crack easily”. The main problem is that the pilot includes children only under the age of 16, so that in cases where there are several children, some of whom are older and younger than that, the younger have their cross-examination recorded and their evidence completed very soon, while the elder have to wait for the trial, perhaps nine months later, already knowing how they will be challenged. That needs to be resolved. Recording and completing the evidence of vulnerable witnesses very early on in the process – indeed before the Pleas and Case Management Hearing – clearly provides everyone with major challenges. As Judge Cahill pointed out though many cases have single complainants, single defendants and single issues, so, being realistic, counsel are well able to cross-examine effectively even at the start of the case.
During questions everyone agreed that this should go hand in hand with more efficient ABE interviews. Someone else shared with us that his style was to be “avuncular”, the ‘oh really?’ school of cross-examination (without being nasty) which soon has the child looking sheepishly at the floor. It did not sound as if he has yet appeared before Judge Cahill.
THINKING OUTSIDE THE BOX: MAXIMISING YOUR POTENTIAL AS A BARRISTER
Mark Hatcher reports from the sub-plenary 2 session
This session promised to provide practical tips on how to manage your career and “look at all options available”. With the volume of crime falling, the number of Crown court trials reducing and the future of publicly funded work generally at the Bar being so uncertain, was this a thinly coded invitation from the Bar Council to those thinking about leaving the Bar altogether or, for those still able to do so, transferring their skills elsewhere in the profession, to hear about alternatives before biting the bullet?
Three panellists – Nicky Atkins (an executive coach and trainer), Stephen Collier (Chief Executive of BMI Healthcare and Treasurer of the Bar Council) and Mark Hatcher (special adviser to the Chairman of the Bar) – pitched up to share their thoughts before an audience of over a hundred delegates whose presence, towards the end of the day’s proceedings which had been spent in a series of windowless boxes deep below ground level, declared that they at least were prepared to think outside the conventional professional box. The session was ably moderated by former Chairman of the Bar, Maura McGowan who recently left the Bar on appointment to the High Court Bench.
Nicky Atkins explained that the session was essentially about “being more effective” and “ensuring that you get what you want”. It seemed a good place to start. Neither Collier nor Hatcher had pursued careers at the self-employed Bar. Between them, in different ways, they had worked out fairly early on where their strengths and interests lay. Through a combination of tenacity, opportunism and making the most of the experience and capabilities they had both acquired in employed and latterly in “un-registered” practice, both had developed successful and rewarding careers outside the framework of a conventional career at the Bar.
They had transferred their core skills in assembling and developing arguments, influencing outcomes, persuading decision-makers (in government or the boardroom) and in the court of public opinion. Collier reflected on his journey through a succession of senior management positions in business. Hatcher described his role, after a spell in Whitehall, as a lobbyist for PricewaterhouseCoopers and at the Bar Council. In the events which happened, both had pursued different career goals from the ones they had in mind when they had been called to the Bar. But in each case they had drawn deeply on their common professional background and the process of their formation as barristers. The main message of the career expert was about having a plan. Nicky Atkins hammered home the importance of understanding yourself (in effect “your brand”) and others’ perceptions about you. Secondly, identify your career goals (these had to be clearly defined). Thirdly, develop a strong business network. Having a mentor could help with each of these elements.
Identifying core skills and qualities, acquiring experience to fill gaps and gaining personal insights into strengths and weaknesses, as well as maintaining and developing networks, all featured in the panellists’ presentations. In the course of discussion, it was recognised that the Bar could no longer assume an entitlement to gain work. The markets for advocacy and related professional services were fiercely competitive. As a result those practising at the Bar, or drawing on their experience and skills at the Bar in other walks of life, needed to invest in marketing and promoting themselves to win work in their chosen field of endeavour. They might also want to think about developing different ways of working, perhaps in new business models, taking advantage of planned or possible regulatory changes that offered a wider array of structures within which to operate than in the past.
Such developments could have implications for increasing the range of training courses in practice development available to barristers through the Bar Council’s Member Services department, or perhaps by the Inns of Court. One recently appointed Chief Executive of a set of chancery and commercial chambers said she had been struck by the gap in the training field for marketing communication skills for barristers. Compared with the efforts made by law firms for solicitors, she thought not enough was done by chambers to demonstrate the capacity of barristers to innovate in the delivery of their services.
The discussion ranged widely. It showed a number of barristers ready, able and willing to think outside the box about the future of the Bar, as well as how to build successful and rewarding careers.
David Wurtzel reports
Before the conference was wound up, Max Hill QC, newly elected Leader of the South Eastern Circuit, spoke about the good work of the Kalisher Trust, of which he is Chairman and in particular of the mentoring of young people throughout their tertiary education and as they head towards a career at the criminal Bar. This belief in the future was a suitable prelude to the closing address by Rt Hon Sir Alan Moses, who recently retired from the Court of Appeal to take up his appointment as the first chairman of the Independent Press Standards Organisation. “I’ve come to say goodbye,” he began, while recalling those of his brother judges who had been suitably praised on their retirement in Court 4 of the Royal Courts of Justice. He however thought that judges were “ephemeral”, when they are gone, they are gone.
What would he miss least? Amongst these was the “misnomered skeleton”, replete with more and more authorities. What would he miss most? “What really mattered in my career, being a barrister”, when counsel touched “the spot” with exactly the right word or phrase. What will remain, he said, was a public who will never appreciate what barristers do, “the need to cultivate and cherish those who offer independent and powerful advocacy”. “What bravery for such little reward”, to champion the arguments of one’s client.
He mourned the fact that there was no one in power or authority to “speak on your behalf”. Neither the Lord Chancellor nor the Permanent Secretary in the Ministry of Justice were lawyers. “Did you ever imagine,” he asked, “that the leader of the Bar, the Attorney General and the Solicitor General, the two leading lawyers, would lose their jobs because they gave their genuine opinion?” He was not impressed by their successors. “Do you really expect them to speak on your behalf?” The Bar must defend the privilege of being able to represent one side one day, and the other side the next. He told the delegates that they were brave and courageous because they were “pressured by work and the poverty of resources at your command”.
“What shall I miss?” he asked again. “Your independence, your freedom from fear, your loyalty to what you do, your fun, your enjoyment.” “A good lawyer is a happy lawyer,” he said. At the start of the conference I had asked if there were a text of Sir Alan’s speech. There wasn’t, but having listened to this speech from the heart, I went back to an earlier text from him. It came from the Dame Ann Ebsworth lecture he delivered on 13 February 2012 and which the Chairman of the Bar reminded us was his brilliantly delivered attack on QASA. At the end of his address, though, is the passage which is never quoted: “I should have thought that rather than earning your CPD points by listening to yet another lecture... participation by every advocate, barrister or solicitor, together in regular and sustained courses, in which all the Inns should take the lead, and in which those of different experience and the judges participate, will enliven and encourage just as it inspires and stimulates the beginner. Let there be Academies of Advocacy, with compulsory and regular attendance for all advocates.” Some day we might have a Bar Conference to celebrate that excellence.