This lack of existing overt profile as to EBC activities and apparent limited spread of influence within the Bar has seemingly led to a lack of awareness as to the effective contributions EBC members and employed barristers provide to the wider legal community. Another unintended consequence, arguably, has been a potential stunting of both reach and influence of employed barristers compared to the historical weighting and associated influence exerted by our self-employed peers, colleagues and friends alike. This article therefore seeks to gently re-address the balance by highlighting the depth and breadth of roles carried out by employed barristers, as well as detailing pertinent and ongoing EBC activity.
In the last 12 months the EBC has taken part in events such as the 2010 Bar Conference; organised the 2010 Employed Bar Reception; focused on areas of practice development – such as supporting employed barristers seeking judicial and QC consideration and appointment; supported and developed advocacy training; lobbied for the expansion of pupillage numbers in the employed sector; contributed to the Bar Standards Board (“BSB”) Continuing Professional Development (“CPD”) review; continues to contribute to the BSB review of the Code of Conduct; and has supported Legal Services reform.
The EBC members: a cross-section
The EBC is currently made up of 27 elected members; all with varying backgrounds. Members represent commercial business, government, social and health services. They range from the “usual suspects” to the less well known. From in-house commercial barristers, to the Medicines and Healthcare Regulatory Authority, the Treasury Solicitor’s office, the Crown Prosecution Service, the Serious Fraud Office, the maritime shipping community (including the Port of London Authority), the Armed Forces, the Nursing and Midwifery Council, Public Concern at Work, the British Horseracing Authority and the Investment Management Association, to name but a few. By way of example, the following professional ‘snapshots’ of EBC members highlights the significant reach and impact exerted by a small number of employed barristers, all of whom undertake very different roles within their respective specialist areas.
Counsel & Partner (Commercial litigation)
Employer Stephenson Harwood
I specialise in domestic and international regulatory and criminal investigations. I advise firms and individuals challenging the exercise of powers by regulators and those accused of involvement in market abuse, insider dealing, money laundering, fraud and corruption. I spent a number of years as a prosecutor for the Financial Services Authority (“FSA”) and brought the first criminal prosecution by the FSA against a director for misleading the market (R v Rigby and Bailey), the first Listing Rule contravention, numerous market abuse cases and prohibitions.
Most of my work has an international element, usually involving the US Securities and Exchange Commission, the Commodities and Futures Trading Commission, the Department of Justice and in cases brought by European regulators, police forces and investigating magistrates, so being able to work across borders and with international colleagues is essential.
It is extremely intellectually satisfying and personally rewarding work. I have the opportunity to represent people who have had remarkable and successful careers and are facing their first allegation of serious misconduct. Often they stand accused not for what they did, but for what they didn’t do. I often meet them for the first time on the day of a financial crisis, a raid or an arrest and stay with them, dealing with the aftermath, the media reaction, through the investigation, the interviews, the litigation and sometimes the penalty and then the appeal, which can take several years with potentially devastating reputational, family and professional consequences. As a former self-employed criminal barrister, I have, and exercise, higher courts rights of audience and so can take a case from inception to conclusion. It is one of the rare areas of law where personal relationships really matter and the focus is often not solely on the right legal conclusion but on mitigating the consequences of a ruinous allegation.
I have been involved in Bar Council activities for over ten years and I am one of the first law firm partners to remain a barrister.
Practicing a relatively new area of law, I am particularly interested in the development of innovative new ways of delivering legal services and the liberalisation of the traditional structures of the Bar which offer exciting possibilities which I believe will enable us to serve the public better.
Counsel Construction & Engineering Practice Group,
Employer White & Case LLP
To look around the table at EBC meetings is to be struck by the diversity of background and practice of employed barristers. Becoming one enabled me to make a small addition to that diversity: my working life is typical of that, if of not much else.
As counsel in the Construction & Engineering Practice Group in the London office of global law firm White & Case LLP, I provide research and legal analysis to colleagues throughout the network of offices for them to factor into their advice to clients, on construction projects and in construction disputes, mainly in international arbitration. This involves working with solicitors, employed barristers and foreign qualified lawyers. Sometimes it involves explaining the role and composition of the self-employed Bar and assisting in the identification of counsel, arbitrators and also expert witnesses with appropriate skills. As well as fee-earning activity, there is preparation of material for lectures and conference papers, delivered by both me and by senior colleagues, as well as for publications. There is also a significant training role, both in London and with overseas offices, which has meant visits to Warsaw and Prague in recent months.
Working at White & Case four days per week, for the rest of the time, I am self-employed. This enables me to spend some time most weeks at Keating Chambers (15 Essex St) where I did my first pupillage, 13 years ago, while on sabbatical from a university teaching post. The tasks here include the provision of internal updating and research, assisting with the preparation of seminar and conference papers and publications, and the development of technical material for website and marketing purposes.
Inevitably, academic work has been squeezed by these demanding commitments, but I do what I can by way of occasional lectures for Oxford Brookes and the University of Portsmouth, where I hold Visiting Chairs, and as External Examiner at King’s College, London and the British University in Dubai.
The purpose of being Called (Lincoln’s, 1997) was principally enhancement of consultancy opportunities and a wider perspective in teaching. For a 40-year-old, with a mortgage, young family and life in rural Oxfordshire, the self-employed Bar never seemed a realistic option. The opportunity and variety of the last ten years has been largely possible because of practice at the Employed Bar, itself rich in diversity.
Employer: Nursing and Midwifery Council Assistant Director, Legal Services at the Nursing and Midwifery Council (“NMC”). The NMC is one of the largest healthcare regulatory bodies in the world, with over 660,000 nurses and midwives on its register. Its primary purpose is to protect the public.
I am based in Fitness to Practise (“FTP”). We bring proceedings against nurses and midwives if it appears that their fitness to practise is impaired. I run the regulatory legal team, which consists of 17 lawyers, one pupil, six paralegals, and five administrative staff.
The primary focus of the team’s work is advocacy. All of the lawyers (barristers and solicitors) appear almost daily in fitness to practise hearings. These involve the determination of facts to the civil standard, with the burden of proof on the NMC. They can involve complex evidential and legal issues, often requiring examination-in-chief and cross-examination of expert witnesses. The tribunal then has to make a decision on whether the nurse or midwife’s fitness to practise is impaired, and if so, what sanction should be imposed.
The work can be harrowing. I have been involved in many cases involving the death of a patient or a baby. I have also presented lots of cases involving serious sexual abuse of vulnerable mental health patients. Although the work can be upsetting, it is always interesting, and it is rewarding to work with the purpose of protecting the public.
As well as hearings before the NMC practice committees, I appear frequently as sole counsel for the NMC before the High Court and Court of Appeal.
We aim to conduct all of our advocacy in-house, but sometimes this is not possible. We then instruct external counsel, which makes me a consumer of the self-employed Bar as well as being a member of the Bar myself. Having spent nine years in a criminal set before joining the NMC in 2004, I am very familiar with the way the self-employed Bar operates, and am very grateful for the quality and flexibility it offers.
As well as carrying out casework, I am a line manager and a pupil supervisor. I designed the NMC’s pupillage programme, which has operated successfully since 2006. I also advise the director of FTP on matters of law, and help to shape the NMC’s policies and procedures as a member of its Corporate Leadership Board.
Counsel Bribery and Corruption Business Area,
Employer Serious Fraud Office
Friends and colleagues frequently ask why I moved from private practice at the Criminal Bar to join the Serious Fraud Office (“SFO”). My answer remains the same now as it did the day I applied for the post – to specialise in very complex fraud and corruption, to deal with ground breaking law, to influence policy changes, and to make a difference. Has it lived up to this billing? With bells on…
As the SFO is a unified investigation and prosecution agency, being a Case Manager in the Bribery & Corruption Business Area, I am involved in managing my cases from their inception – whether they be proactive investigations by the SFO, or referrals from victims, whistleblowers, or national and international investigation agencies – through to their conclusion. The advantage of multi-disciplinary teams, made up of expert investigators, accountants, digital forensics specialists, and lawyers, is that we are able to consider developments as and when they happen, in a holistic way and respond more rapidly. Harnessing this talent is a challenge, and a real learning curve, which means you become a “Jack of all trades”, no matter that defence solicitors regularly suggest you are “master of none”!
I set the strategies for dealing with the case, the media, and most importantly the large number of victims. I take the lead in planning each stage of the investigation from search, to interview, to letters of request, to charge, through to dealing with any subsequent prosecutions. Cases are not only voluminous; they involve novel and complex points of law and fact, requiring a great deal of liaison with and co-operation from national and international enforcement and prosecution authorities.
During these times of unprecedented cut-backs, the public sector challenge to do “more for less” is not as doom and gloom as it sounds. I have been involved in a number of projects to improve staff training and development, to improve our use of counsel, and to increase our efficiency. I have also been involved in managing a project, looking at innovative ways of using the current prosecutors’ toolkit and also recommending proposals for legislative change.
Although I have, and do exercise, higher courts rights of audience, this is not as frequently as when I was self-employed. I get my advocacy fix by doing Advocacy Training for the Middle Temple, taking part in the Advocacy Training Council and giving lectures at the National School of Government or the Inns of Court.
Being part of the Government Legal Service (“GLS”), has enabled me to join the Prosecutor Training Steering Group, assisting with GLS training, and organising the annual GLS Prosecutor’s Conference. Outside of the office I have been involved in Bar Council activities on the Employed Bar Committee and also on the Public Affairs Committee.
Employer Medicines & Healthcare Products Regulatory Authority
I provide legal services to the Medicines & Healthcare Products Regulatory Authority (“MHRA”) as part of the Department of Health Legal Services. MHRA is responsible for the regulation of medicines and medical devices (the latter including everything from contact lenses to MRI scanners and radiotherapy machinery). MHRA grants commercial licences on medicines to the pharmaceutical industry. It also ensures regulatory compliance, conducting criminal investigations and prosecutions as necessary. Advising on enforcement issues and the powers of regulators is part of my job.
MHRA has an interesting position internationally because the UK is one of the countries that leads the way in medical products legislation. Accordingly MHRA is heavily involved in negotiating amendments to existing EU Directives and new Conventions. Last year saw me leading a UK delegation to Strasbourg, for the Convention on Counterfeiting of Medical Products and related offences. Counterfeiting medicines is an important area for us because excellent forgeries given to people who are already unwell provide a convenient route for those involved in fraud and money laundering. I have now been tasked with creating some web seminars to help educate others about the relevant law behind the new Convention (which will shortly be open for signature).
Drafting domestic legislation to transpose EU law, working with other Member States and other international hubs where medicines or devices are produced and understanding the scientific and cultural significance of different medical practices in a diverse society are all important. In Luxembourg on behalf of the UK, we argue the case of whether a product should be classified as a medicine rather than as a food supplement, cosmetic, device or otherwise; a process that allows for intellectual rigour and pragmatism.
My job does not appear to contain a “typical day” although there are elements that are repeated throughout any month in advising on the law in relation to medical products. News breaking items that have a medical component are invariably part of the job. Accordingly the last 12 months have seen the following: reconsidering the Thalidomide sufferers (addressing questions from Parliament, the media and sufferers themselves); a trial at the Old Bailey involving a traditional Chinese medicine practitioner who had provided a banned substance that caused serious illness; considering how deaths involving healthcare could be prevented. Much of the work involves a very personal element and is not simply about finance or reputations, but health, safety or life.
It is not an easy job but one where constant re-evaluation of law, science and commercial procedures is required. Incorrect drafting of a piece of legislation can mean years of litigation. Working closely with the self-employed Bar is helped by my own time in self-employed practice and keeping ties with the self-employed Bar is important in being able to work with those who remain key in relevant fields. Due to a close working relationship with the self-employed Bar, there is an excellent opportunity to see first hand, what works and what does not in the different ways of providing legal services. It is this experience that I have brought to bear on three years of jointly Chairing the EBC. I want to see cross-cutting issues for the Bar, where employment status is irrelevant, being promoted, and more emphasis on One Bar as a reality rather than just an ideal.
Major David Hammond, Royal Marines, is a serving naval barrister and an EBC member.