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The 30th Annual Bar Conference, together this year with the Young Bar Conference, took place on 17 October. Counsel reports on the day
THE ADVOCATE
Melissa Coutinho reviews the opening of the conference, the Bar Chairman’s address and the keynote speech
The 30th Bar Conference and the Young Bar Conference were held on Saturday 17 October 2015 at the Westminster Park Plaza Hotel. The theme of the day was: The Advocate – Our role in the balance between state and citizen. After a welcome from Kama Melly, the Conference Chairman, the audience was treated to an address by Alistair MacDonald QC, Chairman of the Bar.
Alistair paid tribute to the diversity of the legal profession, of those employed and self-employed, doing private and public work. He commended to the profession the Ministry of Justice crackdown on referral fees in its consultation, Preserving and enhancing the quality of criminal advocacy, published on 1 October 2015. He spoke of referral fees as being ‘kick-backs’ and ‘squalid backhanders’ and was scathing about those who hid referral fees under the cloak of an ‘administration fee’.
He also spoke about advocacy panels, saying that no ‘excellent advocate had anything to fear from them’, and that ‘excellence, rather than bare competence’ was required. He was adamant that the validity of our system relies upon excellent advocacy, which has a profound impact upon defendants, victims and their respective families. In covering court fees and the importance of courts, he was of the view that justice needs to remain at the heart of our constitutional framework.
Keynote address
Baroness Helena Kennedy of the Shaws QC gave the Keynote Address, expanding upon the conference theme. In a personal speech, she described her own career at the Bar and how satisfying she finds the law. Describing the UK as a ‘loadstar for justice’, she lauded a fearless legal profession that behaved with integrity, where human rights are respected and where other countries saw us having a ‘Rolls Royce’ service from which they were keen to learn.
She emphasised that each accused should have the right to fearless representation and that ‘lawyers should not be confused with their clients’. We should all be concerned about abuses in our name, be this from the media or other sources, she said, and shared with us her own experiences with the man who had challenged her for representing a Jihadist sympathiser.
Describing our legal structure as the ‘bulwark of our democratic system’, Baroness Kennedy said the rule of law was about being able to be held to account for the decisions made and the processes undertaken. She reminded us that there are countries where there are neither willing lawyers to protect human rights, nor judges willing to see that justice is done.
As for women and ethnic minorities, she decried the ‘incredibly clever but deeply silly’ individuals who considered fast tracking as the lowering of standards, when what should matter is ‘ability’, rather than how ‘well connected one is’. She emphasised that the Bar is more than a business, it is a vocation; and stressed the importance of the Inns as honourable societies which encouraged a collegiate atmosphere and good behaviour. She said that it was right that the award of ‘QC’ held ambitious people in check, but warned what might happen if experience and skills are not recognised and rewarded properly, which could only lead to negative outcomes for all.
Baroness Kennedy concluded that all good lawyers are human rights lawyers, concerned with the humanity and dignity of all. Describing all barristers as both caretakers and servants of the system, she said that advocates are the guarantee of why law matters, speaking out on behalf of the most vulnerable.
As a rousing but thoughtful speech, it received a tremendous reception. It was followed by real life examples of barristers who have worked pro bono to help the vulnerable.
Pro Bono Award 2015
Joseph Middleton of Doughty Street Chambers won the Bar Pro Bono Unit Award this year for his outstanding international human rights work, helping to end death row in Belize. In part thanks to his efforts, for the first time in decades there are no prisoners on death row there, with 37 prisoners formerly facing the death penalty being released in Malawi and a further 18 being resentenced.
Special mention was also given to Joe Hingston of Carmelite Chambers and his work as a trustee and unpaid manager of the Centre for Criminal Appeals. Thanks to this work, the charity has been authorised by the SRA and is seeking a criminal legal aid contract to conduct appeals.
Cloisters also received a special mention for the pro bono work done across chambers. Over 140 pro bono cases were taken on by its members over the past year.
YOU CANNOT BE SERIOUS
Melissa Coutinho reports on the Bar Standards Board session, exploring serious misconduct and fair allocation of work
The BSB session, with its nod to John McEnroe’s infamous exhortation, was a thought-provoking affair, where the focus was on the duty on all barristers in reporting the ‘‘serious misconduct’’ of others. A panel comprised Sir Andrew Burns, Chair of the BSB; Naomi Ellenbogen QC, BSB Board Member; Timothy Fancourt QC, Falcon Chambers; Ewen Macleod, BSB Director of Regulatory Policy; and Amit Popat, BSB Equality and Access to Justice Policy Manager. It divided up the session into two parts: one covered a fictitious (we hope) scenario, designed to test who had a duty to report; and the other covered real life examples regarding allocation of work and what is not permitted. There were some brave members of the audience, who admitted that their views amounted to a breach of the rules.
The nuanced exercise was based on a trial of a claim for rescission of a share sale agreement on the basis of a misrepresentation as to the liabilities of the relevant company. At trial, the cross examination by counsel for the claimant extended beyond the pleaded case, and beyond instructions in part. Conversations – between counsel, her Head of Chambers, a friend she speaks to and a friend he then speaks to – were all put under the microscope. While there was not time to consider the matters in depth, there were certainly contrary views expressed, including the relevance of matters arising during a trial that might be corrected by the trial process, and whether these changed the fact of ‘‘serious misconduct’’ even if there might well be mitigation.
There was discussion over the fact that much was left to the discretion of the individual barrister, in terms of what ‘prompt’ reporting meant, and the same circumstances being described as ‘borderline incompetence’ by one, as ‘over-enthusiasm’ by another, or even as ‘misconduct’ rather than ‘serious misconduct’. The BSB revealed that self-referrals are not uncommon, where people are cautious, but reminded everyone of the Bar Council’s Ethics Helpline, which provides an opportunity to seek advice, in advance of making a decision whether to report another or self-report. In addition to the rules surrounding reporting serious misconduct by others (Rule 66–99), new BSB guidance is available on the website.
In the second half of the session, Fair Access to Work was covered. The legal requirements, the regulatory requirements and the guidance that exists were all outlined briefly. The potentially discriminatory requests/instructions from solicitors, where a particular protected characteristic is sought (eg requesting someone of a specific gender or race), was explained to be unlawful. This is primarily because it is contrary to Equalities Act 2010 s 47(6) for there to be unlawful discrimination. By indicating a particular characteristic, there is discrimination against all those barristers who do not possess this characteristic. While there may be ever more inventive ways around this issue, it is nonetheless a rule covered in r C110(3)(i).
The allocation of work
This was similarly covered, so that there ought to be the opportunity for all in chambers to develop their skills and experience. Senior members of chambers and clerks can play an important role in work allocation and there should be training to ensure that all understand the role of diversity in ensuring the fair allocation of work. A system whereby it is transparent how work is allocated, with regular monitoring, and procedures for dealing effectively with complaints or concerns about the allocation of work, best protects everyone and ensures that no inadvertent bias goes unchecked. Regular meetings where such matters are considered were encouraged, as was the inclusion of those who want to develop in situations where formal or informal groups are organised.
Interesting conversations with practitioners from the audience made it clear that there was plenty of scope for people to feel aggrieved and that this could be managed best by careful monitoring.
DIVERSIFY AND THRIVE
Nigel Pascoe QC on the Circuit Leaders’ advice for the advocate’s survival at the modern Bar
There must be something in the air – or a more intuitive Lord Chancellor, respecting professionalism. This was an optimistic, well structured Circuit Leaders’ seminar, full of hope, chaired with relaxed charm by Andrew Langdon QC of the Western Circuit. He reminded us of our perceived skills; we qualify for more jobs than we realise. First, Max Hill QC from the South Eastern Circuit asserted that we were further from fusion than ever. The chambers structure was paramount, but within it real change was possible. In his chambers, new structures had emerged, pointing to a more diverse future. He spoke of add-on units or LLPs in niche subjects, such as private prosecutions, which then went on to be developed outside chambers. Some of these provide rentable income, while others, like out of hours specialist lectures, do not; but all were beneficial. Crucially, young barristers should be flexible, embracing secondments rather than the old, less flexible approach of working upwards from small beginnings. This was a substantial and measured contribution.
Andrew O’Byrne QC from the Northern Circuit pointed out the new work prospects arising from the Civil Justice Centre and big national firms with circuit branches. The Direct Access portal, vital to the future success of the Bar, was set up by Prudence Beever in his own chambers. Don’t despair. There is fantastic work out there. It was another upbeat, optimistic presentation.
Paul Lewis QC of the Wales and Chester Circuit said the ability of the Welsh Assembly to make laws was expanding and was providing huge opportunities for the Bar. Government lawyers were working with junior lawyers in an important new training scheme. Secondment allowed the unique opportunity to assist in the drafting of new laws. Similarly, there are good prospects of working with local authorities throughout Wales. With characteristic ebullience, he also painted a bright future to come from diversification.
Richard Atkins QC of the Midland Circuit, in candid and delightful form, tackled the question: When do you become too old to diversify? Answer: investigate, search, write and promote yourself. He had done so and it had worked. There is a huge raft of possibilities, not least the scope provided by regulatory bodies. Barristers can become lay members as well as legal assessors or Chairs. You can box and cox with your own practices. We need to change mindsets. His advice, in short, is to start ‘bigging yourself up’. Your correspondent inwardly cheered.
John Elvidge QC from the North Eastern Circuit spoke of real growth, with a number of sets of over a hundred members. The Mercantile Court, the Court of Protection and working with local authorities means there is now a huge range of work to be done on Circuit, both commercial and crime. Pupillages are up. So again, it was a very positive assessment. Andrew Langdon QC also confirmed the growth of recruitment and pupillage and the rediscovery of confidence on the Western Circuit, as your correspondent can confirm.
Three younger barristers also acquitted themselves well, largely without notes. Jane Oldfield, called in 2004, gave an excellent picture of working on secondment to the GMC after nine year’s Call and, in consequence, later being instructed by them. Fleshing out the advantages of secondment, she stressed the need to draw careful parameters between work and chambers. She had learned what those who instruct us don’t like. Regulatory work had led to work for both sides, including representing registrant nurses. There was ‘a rich vein of secondment opportunities’ and her practice had thrived.
Similarly, Sam Roake, four year’s Call, gave a straight-talking picture of a Serious Fraud Office secondment and the powerful transformation of cash flow which ensued. In answer to a question, he said that before secondment he was not running away from the Bar. He was taking a secondment to stay at the Bar and survive – and it had worked. Now he felt he had an excellent balance of work. We are advocates and also businessmen and we need to be entrepreneurs.
Last, Hannah Tildesley of three year’s Call gave a very fluent presentation of her experiences of environmental secondment and the practical pressures on those working within public bodies. She even instructed counsel, including her old pupil adviser. Hannah also identified the specific lack of service provided by some barristers, which is not appreciated. A second part-time secondment with Birmingham City Council had been equally worthwhile. Your correspondent predicts a bright future.
Finally, an outstanding contribution from a non-lawyer, albeit with close connections. Nicola Atkins, former legal recruiter, now executive coach and career planner, crammed in a huge amount of practical advice in minutes. Don’t just sit there: you need a plan, to understand yourself and to seek a strong network of business relationships. It is all about the messages you are sending out into the marketplace. Marketing depends on the quality of the message. Once the message is out there, it takes time to change it on social media, so you must send out clear messages. Networking is crucial. Our CVs must be relevant and evidence based. Concise Profiles are vital, to be tailored to the marketplace. Practice interview techniques, take skilled advice and know your weaknesses. It is not about luck but the effort you put into it. I cannot think of a better tutor. Overall seminar verdict? Champagne quality. Well done the Circuits!
THE BALANCE BETWEEN STATE AND CITIZEN: AN OPPORTUNITY FOR ACCOUNTABILITY
Mark Hatcher reviews the conference’s political debate
Representatives of the two main political parties in the Commons and the Liberal Democrats in the Lords joined Bar Council Vice Chairman-Elect, Andrew Langdon QC for a lively and well-attended panel session which focused on human rights and the extent to which the Executive was prepared to fund the justice system.
Opening for the Conservatives, Robert Buckland QC MP (Solicitor General) said he could not recall a time when the justice system was not thought to be in turbulence. He had detected an increasing divergence between the worlds of politicians and lawyers. As a Law Officer, he saw himself embodying a cross-over between the different parts of the constitution and ensuring that the rule of law was upheld. He looked forward to a full consultation on whether there should be a Bill of Rights. A considered rather than a knee-jerk response to satisfy ‘red top rage’ was needed.
For Labour, Andy Slaughter MP said that as a shadow justice minister for the entirety of the last parliament, he had watched the justice system being gradually dismantled. It remained under sustained attack. Although the appointment of a new Lord Chancellor was a positive step, Michael Gove had said virtually nothing about access to justice. He needed to address the damage caused by LASPO and the Coalition Government’s ‘Transforming Justice’ programme, as well as dealing with a crisis in our prisons.
For the Lib Dems, Lord Marks of Henley-on-Thames QC warned that a British Human Rights Bill could be ‘heavily opposed’ in the Lords. The Conservatives had not received a mandate for withdrawal from the ECHR. He was also worried about a growing unwillingness in recent legislation to trust the judges, citing as examples the criminal courts charge and curtailment of judges’ sentencing powers in section 28 of the Criminal Justice and Courts Act, and the barriers to judicial review erected by Part 4 of that Act.
In the course of questions, both Buckland and Slaughter shared the audience’s concerns about McKenzie friends. Buckland thought the public did not appreciate the risks of ‘legal quackery’. To applause, the panel chairman commented that the growth in unregulated and un-insured McKenzie friends was a reflection of the crisis in funding the justice system.
Slaughter said that public funding in family law had failed spectacularly. Labour had gone with the Coalition’s belief that mediation could help but it had not. Andrew Langdon drew further applause by observing that it was not as if the consequences of LASPO had been unforeseen. Lord Marks agreed that LASPO had caused ‘untold damage’, which would be why Liberal Democrats would be joining calls from the Bar Council in pressing the Government for early post-legislative scrutiny of the Act.
BUILDING BRIDGES WITH OVERSEAS LAWYERS
Melissa Coutinho reviews the Bar Council International Committee’s session on current international themes at the Bar
Moderated sympathetically by Amanda Pinto QC, Chairman of the International Committee, this session highlighted current themes in international work for the Bar. The International Committee’s panel included representatives from its geographical special interest groups, and led an open discussion on the current international programme of the Bar; the international business opportunities for barristers; working with lawyers from different countries and special interest groups such as Commonwealth of Independent States, Brazil, China and the Far East; exploiting business development opportunities successfully; and influencing future Bar Council programming. It concluded by passing on the top tips from James Dingemans QC, who prior to his High Court appointment, chaired the International Committee.
Discussing the development and enhancement of an international practice, the panel members included both barristers from other jurisdictions who instruct the Bar of England and Wales and barristers called to the Bar here but who practise internationally. The panel comprised: Rupert D’Cruz, Vice-Chairman of the Bar Council International Committee; George Z. Georgiou, Managing Partner of George Z. Georgiou & Associates LLC; Hugh Mercer QC, Vice-Chairman of the Bar Council International Committee, Bar Council Delegate to the Council of Bars and Law Societies of Europe (CCBE); and Frederico Singarajah, Chair of the South America Interest Group. Each gave a potted history of their own career development in terms of how they had developed their practice and the mechanisms that had worked for them.
While there were common themes, in terms of a love of foreign languages or travelling, the group made it clear that this was not a case of one size fits all. Fluency in a language other than English is not a prerequisite for developing a successful international practice, and there were myriad ways of ensuring that professional relationships translated into an increased likelihood of instructions being received. In fact, the session appeared to be a masterclass for any enterprising barrister in how to take responsibility for developing any successful practice, rather than simply an international one, albeit that element was emphasised. A follow up article in Counsel will expand upon the following list, which is intended to be a taster of the ideas that were shared.
Suggestions included:
There were also references to drinking, swearing and how appropriate Christmas cards were, but for more details, read the follow up article early in 2016…
WELLBEING AT THE BAR
Nigel Pascoe QC on the seminar of the Equality Diversity and Social Mobility Committee
So the last case went badly? Never mind. Pick yourself up for the next one. But what if that result had affected you so badly as to undermine your next appearance? Wellbeing at the Bar is a hugely important topic. Under the inspiring leadership of Rachel Spearing, the Bar Council, Inns, Circuits and others have all combined to fund a research product with practical implications. The focus will be on preventative measures. Hopefully, barristers will no longer carry their private agonies alone. There will be a way forward within the profession and the chambers structure to address their problems.
This seminar was ground-breaking and also very uplifting. Rachel, colleague and friend, set out lucidly and persuasively the aims of the project and the sophisticated degrees of research being undertaken. Elizabeth Rimmer, CEO of Law Care, told us what was already out there at the end of a telephone for lawyers in despair. No one is immune. This organisation has grown considerably from its modest beginnings and its number should be on every court and chambers notice board. Then James Periera QC, in a very articulate presentation, set out practical measures to survive. A few of his suggestions are worth noting. Book time out of the diary. Plan with your clerk time needed. Remember that less is more in skeleton arguments. And the best can be the enemy of the good, for pleadings, etc are not works of art but, more importantly, simply clear and correct documents. Take responsibility for yourself. Your correspondent was listening to a really outstanding advocate in excellent form. He was followed by Nick Hill, Vice President of the Institute of Barristers’ Clerks. He commended the joint cooperation needed to address these issues and did so in a way which deeply impressed your correspondent. Lastly and equally impressive, Sam Mercer put the position for the Bar Council. She is on the end of a helpline phone sometimes, and plainly is crucial to the future success of the project, with the clarity of vision that is required. Your correspondent risked a question: do we not need an appropriate person in every set as a first port of call for tenants and clerks? Happily, that was supported. I left, sure that my beloved profession was taking a brave and necessary step, which, in time, will be part of the furniture. Well done to all.
COURTS, THE BAR, THE CPS AND THE MOJ: WHO SAYS WE'RE NOT ALL ON THE SAME TEAM?
Chris McWatters reports
This session focused on the recommendations of three recent high profile reports: Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings, Sir Bill Jeffrey’s report on Independent Criminal Advocacy in England and Wales and His Honour Geoffrey Rivlin QC’s report from the Bar Council on Criminal Justice, Advocacy and the Bar.
First to speak was Sir Bill Jeffrey, who, 18 months on from the publishing of his report, had observed a low level of confidence at the Criminal Bar regarding the validity of its long term future. He said that there were many more people in criminal advocacy than there needed to be, and that much of that work was now being completed by solicitor advocates. He also noted that the way in which legal aid works in criminal law doesn’t stimulate competition or maximise quality. He suggested that it would make sense for the Legal Aid Agency to be more assertive in insisting on quality. He commented on the minimal levels of training that solicitors received before being appointed as advocates, as well as how judges all held strong views about the quality of advocacy in criminal courts. His two possible remedies for the Criminal Bar were either that it competed with solicitors for legal aid contracts, or that there was a professional structure whereby aspiring advocates spent time as solicitors, with the Bar in turn becoming a specialist entity for those who had come through the training.
His Honour Judge Rivlin QC expressed similar concerns, suggesting that we might be sleepwalking into losing the independent Criminal Bar. He had been told horror stories of how certain criminal solicitors were treating the Bar, solicitors whose only concern was how to make a profit. He was critical of solicitors wanting referral fees from the Bar, viewing such fees as bribery and corruption. He spoke of concern about the junior Bar, noting that many were leaving on secondment, unlikely to return, as they were unhappy and disillusioned about the way they had been treated. He said that he strongly believes that junior members of the Bar should not be asked to go to court unless they get paid the same rate as any other advocate. He also believes that Heads of Chambers must take responsibility to ensure that pupils are properly treated. He thinks that the Bar needs to be outward looking, and concerned with providing a first rate criminal justice system. ‘If the law has a shop window, criminal justice is it,’ he said.
Standing in for Sir Brian Leveson was Max Hill QC, who had various suggestions to make regarding the improvement of the criminal justice system, not least ensuring that defendants who were held in custody were brought to court on time. He said it was important that advocates had ownership of their cases, and that one way to help achieve this was to abolish warned lists. He also suggested that an advocate’s availability should be taken into account when listing trials, and observed that currently it is virtually impossible for clerks to get hold of list officers at court as the phone is never picked up.
He suggested there should be a defence panel of advocates in the same way as there is in the CPS, as not enough defence work is getting to the right advocate. He said that advocates should be involved in pre-trial work, but this should be paid for. ‘Do not ask the profession to work for nothing,’ he stated. He said that courts should set aside one afternoon a week to conduct virtual hearings, so that advocates aren’t expected to down tools in the middle of a trial in order to cover them. He is against the introduction of single joint experts, believing that this would be contrary to the interests of justice. Contrary to what was observed by others, he said that he doesn’t believe the profession is ageing and dying out. For Hill, it is important that the Criminal Bar remains confident, as this will radiate outwards.
During the discussion afterwards, further concerns about the demise of the Criminal Bar were raised, and the threat posed by the proliferation of solicitor advocates.
CRIMINAL BAR ASSOCIATION: SECURING THE FUTURE OF THE CRIMINAL ADVOCATE
Mark Fenhalls QC and Daniel Sternberg introduced the session with a brief account of recent history since April 2013, when the MoJ had launched a consultation entitled Transforming Legal Aid. This had led to an unprecedented mobilisation of both professions and a significant change of opinion by the last Lord Chancellor. More recently, the Bar had been encouraging the MoJ to respond to Sir Bill Jeffrey’s review of independent criminal advocacy, published in May 2014. They spoke of the Bar’s regret about the ‘Two Tier’ contracts that the MoJ seemed intent in bringing in and their fears about how this would irrevocably damage the criminal justice system and unchecked would present a threat to the existence of the publicly funded Criminal Bar.
On 1 October, the MoJ published the recent consultation Preserving and enhancing the quality of criminal advocacy. This consultation was a welcome indication that the government is committed to making sure that advocates are briefed because they are the best available, rather than because of the financial interest of the person sending the work. The proposed idea of panel schemes is something which no advocate who has confidence in his ability and reputation should fear.
The Leveson Review has prompted a series of changes to the way in which criminal litigation would be conducted in our courts. In July, the Lord Chief Justice had issued a new Practice Direction and the Criminal Procedure Rules have been updated. On 5 October, ‘early adopter’ courts entered the world of Better Case Management (BCM), Plea and Trial Preparation Hearings (PTPH) and Further Case Management Hearings (FCMH). At the same time, the courts are implementing a digital revolution as wifi is extended and we all start to use the new Digital Case System (DCS).
The conversation turned to the open consultation by the BSB on The future of training for the Bar. This was to form the basis of much of subsequent Q&A session. The panel spoke of the increasing struggle to attract and retain talented young advocates to publicly funded work. There was a consensus that few thought their experience at the BPTC (which this year costs £18,000 and to this you must add the cost of living in London) was of much use when it came to pupillage. Everyone also agreed that it was deeply unfair to have so many students passing through this year when the prospects of actually obtaining pupillage at the end were so slim. Decades of social progress towards a truly diverse profession are going to be reversed unless ways are found of reducing the costs of professional training.
TRIAL OBSERVATION AND SHOW TRIALS
The Bar Human Rights Committee (BHRC) was initially established to support lawyers and judges internationally in countries where the rule of law was broken. Our mandate has expanded over the years and one of our activities is trial observations. The session aimed to be practical, equipping the audience with the essentials of conducting trial observations and highlighting their positive impact. Blinne Ni Ghrálaigh (Vice-Chair of the BHRC and Barrister at Matrix) provided an overview of the different types of observations (systemic, thematic and ad hoc) which tied into the selection of observers. An observer must be independent, impartial and objective; this is key to the acceptance and reliability of the findings. She then highlighted practicalities which observers should have in mind.
Mads Andenas (Chair of the UN Working Group on Arbitrary Detention) highlighted the importance of a good trial observation report. He used as an example the usefulness of the BHRC Observation on the trial of Mohamed Nasheed, the former President of the Maldives, for the Report of the UN Working Group on Arbitrary Detention. Observations and recommendations in the reports should be linked to international law which in criminal law are fair trial rights which form part of customary international law. Specifically, these are the requirement for an independent impartial competent court in which due process guarantees are observed.
Alex Wilks, principal programme lawyer for the International Bar Association’s Human Rights Institute (IBAHRI), spoke of two observations in Venezuela, one of Judge Maria Lourdes Afiuni, and the second that of her defence lawyer, José Amalio Graterol. His comments focused on the impact of trial observation and how the presence of international observers leads to a more cautious attitude by judges, with an element of saving face. It also can have a calming effect on the defence teams, although as observers you should avoid displays of solidarity. He also spoke about how failings should be linked up to any broader systemic issues.
Kirsty Brimelow QC (Chair of BHRC) chaired the panel and addressed the impact of BHRC’s work. Kirsty relayed her own experience of Bahrain in March 2009, where it was not only observation of the trial that was important, but also the meetings with key position holders in government and prosecution. All 24 defendants received a pardon. In 2012, BHRC intervention included media strategy. This led to the release of the former Attorney General of Malawi Ralph Kasambara, the state having ignored rulings of the courts for his release. She also spoke movingly of receiving a letter from a lawyer in South Sudan. He had written to thank BHRC for its part in securing his release from arbitrary detention.
Peter Carter QC (former Chair of BHRC and member of the BHRC Advisory Board) spoke from the audience, commenting that according to Sir Sydney Kentridge you cannot be partisan, but as a lawyer you always are biased towards the rule of law.
Any intervention or activity you conduct as an international lawyer, motivates local human rights defenders to keep going and to have confidence that they are on the right path. Trial observations play a number of different roles and are important in upholding human rights. If you are interested in learning more or getting involved with the work of the BHRC get in touch with our Coordinator, Céline Grey at coordination@barhumanrights.org.uk.
Dr Theodora A Christou, Elected Executive Member of the BHRC
MEDIA DEBATE: FREEDOM, LIBERTY AND FAIR REPORTING
In the wake of the ‘phone hacking debacle, the resultant closure of the News of the World, the Leveson Inquiry and the failed prosecutions against journalists, a panel largely comprising members of or sympathisers with campaign group Hacked Off debated the merits of various forms of press regulation.
Most threw their weight behind the recommendations of the Leveson report to regulate an out of control press that encroached on and destroyed people’s lives with their dishonest tactics.
The one panel member who extolled the merits of a free voice was Bob Satchwell, executive director of the Society of Editors, who argued that the criminal law already dealt adequately with all the wrongdoings that had come to light during the hacking scandal. Further regulation, he said, was not needed and would only serve to damage and constrain an investigative, enquiring and free press.
Mick Hume, Spiked’s editor-at-large, maintained that the first and final word on the state’s relationship with the media should be those on freedom of speech included in the first amendment to the US constitution:
‘Congress shall make no law ... abridging the freedom of speech, or of the press’.
His simple point was that either you have a free press or you don’t; the downsides of that freedom are just something that you have to put up with for the greater good of not having it state controlled.
Freedom of speech and a free press, he said, were like a rose – you have to put up with the thorns in order to have the flower.
Hacked Off chairman and barrister at Matrix Chambers, Hugh Tomlinson QC maintained that a free press would not be destroyed by regulation.
Dr Evan Harris, joint director of Hacked Off and former Liberal Democrat MP, gave a tub-thumping speech in praise of Leveson and the need for a Royal Charter to rein in the evils of the tabloid press.
The middle ground was occupied by Professor Steven Barnett, a professor of communications at the University of Westminster. While blasting the unethical phone-hacking style of journalism, he bemoaned the demise of the News of the World, which he said had a history as a campaigning newspaper.
He was concerned that the whole affair would deter ‘hacks’ of the future, in whom he was keen to instil the idea of good, positive (or ‘St George’, as he called it) journalism.
Barbora Bukovska, senior director for Law and Programmes at the leading freedom of expression NGO, gave an international perspective, countering the perception that journalists in overseas countries, even those with state-controlled media, viewed Leveson with contempt.
Tim Cunningham, executive producer of Channel 5 chat show The Wright Stuff, told the audience that print journalists do not know how lucky they are – broadcasters, he bemoaned, have to obey the whims and rules laid out by their regulator Ofcom.
Catherine Baksi
SURVEILLANCE AND PRIVACY IN A MODERN DEMOCRACY
This session was moderated by Sir John Mummery, former President of the Investigatory Powers Tribunal. He welcomed the opportunity provided by the proposed new Bill to redraft and consolidate the legislation governing investigatory powers. He commented that he had found the Regulation of Investigatory Powers Act (RIPA) the most difficult piece of legislation he had encountered in his entire judicial career. He commended David Anderson QC for his clear and thoughtful report A Question of Trust.
Nicholas Griffin QC set the scene and explained the meaning of legal professional privilege (LPP) and the legislative framework, including RIPA. He also explained the significance of the decision in Re McE [2009] UKHL 15 in which the majority of the House of Lords had decided that Parliament intended to allow the security services to ignore LPP in certain circumstances. This is likely to have a chilling effect on clients’ willingness to be frank with their lawyers, which will make justice more difficult to achieve. He also explained the circumstances in which communications with lawyers do not attract LPP and said the examples cited by the security services as a reason for extended powers already fell within this category and so inroads into LPP were unjustified.
David Anderson QC, Independent Reviewer of Terrorism Legislation, explained his role as IRTL and the background to his report A Question of Trust – Report of the Investigatory Powers Review. He gave his conclusions on the questions of protection of legally privileged communications compared with the need for state investigatory powers and whether protection for LPP should be absolute or qualified. The decision was ultimately one for Parliament, but democracy only flourishes when the citizens of a state feel they can trust the executive, including the security services. Trust requires an element of transparency and judicial oversight. Judges are, and are seen to be, independent.
Mike Schwarz, a partner at Bindmans, explained the nature of his practice, particularly the representation of political activists and campaigners on issues such as the environment, animal rights, peace/disarmament, race and social justice. He shared with the audience his experience relevant to state use of investigatory powers, breach of LPP and effect on clients and on his ability to represent clients who became unwilling to disclose important evidence in what should be confidential communications protected by LPP.
Peter Carter QC, who has just taken over from Nicholas Griffin as Chair of the Bar Council Surveillance and Privacy Working Group, said that in a legal system which had no constitution, it is important to maintain robust legal oversight on executive action, particularly that which attracts the protection of secrecy due to its necessary sensitivity. LPP is recognised internationally as an important right of citizens, especially when engaged in litigation with the state. It is significant that HMG firmly protects its own LPP in international cases. He said the Bar Council is concerned about possible inroads into the absolute protection needed to make LPP effective in securing citizens’ trust in our system of justice. Unless LPP is expressly protected in primary legislation the example of Re McE shows that essential rights can be undermined.
There was so much for each speaker to cover in the session that sadly there was no time to open it up to questions from the floor. It was a packed room and was a session that all would have been happy to see continued.
THE CLOSING ADDRESS
Chris McWatters reports
The closing address at the Bar conference was given by the Right Honourable Dominic Grieve QC. He was introduced by Alistair MacDonald QC, who suggested that Grieve’s sacking by the prime minister as attorney general should be thought of as a badge of pride, as it set him out as a man of principle (due to his opposition to the government’s intention to repeal the Human Rights Act).
The subject of Grieve’s address was the role of the advocate in the relationship between the citizen and the state. He started his talk by reminiscing about a ‘surreal’ occasion when he had decided to dine with his wife as a Bencher on a Saturday night at the Middle Temple, and it turned out they were the only Benchers present – all the others were watching an important England rugby match. At the end of the dinner, he went round to talk to students who had come to the Inn to complete their dinners, and was surprised to discover such genuine enthusiasm for the Bar, which gave him reason to be optimistic about the Bar’s future.
He confessed to having been gloomy about the future of the Bar a year ago, aware that the quality of advocacy in the criminal courts had diminished with more solicitor advocates stepping into the role of barristers. He also commented on the increase of litigants in person in the family courts. Overall, he felt, the interests of justice were not being well served. As evidenced by this downgrading, he noted that the value of a competent advocate was not appreciated by the Treasury.
However, he suggested that an interesting public debate was emerging about the rule of law in this country, in particular in respect of the Human Rights Act and judicial activism, as well as our membership of the EU. He said that he believes that the current Lord Chancellor, Michael Gove, in spite of not being legally qualified, has a strong sense of office, and is someone who understands the rule of law. As a result of dialogue with the Ministry of Justice, he said, proposals for fees in the criminal courts had been shelved, and the proposed UK Bill of Rights had been put on the back burner.
Grieve then argued that the best-selling point for the Independent Bar was excellence in advocacy. He said that the need for reform is obvious and he is a supporter of the introduction of the Quality Assurance Scheme for Advocates (QASA), as well as being enthusiastic about panel systems for advocates as a way of marking out quality.
Grieve commented on the gulf that existed between politicians and lawyers. However he believes that this gap may be narrowing with the arrival of some extremely articulate lawyers in parliament, such as Keir Starmer QC. In commenting upon the relationship between the state and the citizen, he suggested that lawyers should think of the state as a client with a lot of problems, such as finance, mass migration, terrorism, devolution and parliamentary sovereignty. He said that the government needs help from lawyers, and the Bar should use this as an opportunity to show the government what it has to offer. He concluded by reminding the Bar that barristers in the 17th century had so impressed King James I that he had declared they should have Middle Temple for all time.
The conference generated much activity on Twitter. To see what was tweeted on the day visit here.
Counsel will be carrying a report of the Young Bar Conference in the next issue.
Chris practises family and immigration law at Garden Court Chambers. He regularly contributes to Counsel and is a member of the editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.
Chris practises family and immigration law at Garden Court Chambers. He is a member of the Counsel editorial board. Before coming to the Bar, Chris worked as a journalist and TV scriptwriter.
Nigel is a former leader of the Western Circuit, practises crime from Pump Court Chambers, and is a Master of Drama in the Inner Temple. He is on the editorial board of Counsel.
Melissa Coutinho is a lawyer for the Government Legal Service An accredited arbitrator, qualified PPM practitioner and a magistrate, she also writes and lectures on medical products and their regulation.
THE ADVOCATE
Melissa Coutinho reviews the opening of the conference, the Bar Chairman’s address and the keynote speech
The 30th Bar Conference and the Young Bar Conference were held on Saturday 17 October 2015 at the Westminster Park Plaza Hotel. The theme of the day was: The Advocate – Our role in the balance between state and citizen. After a welcome from Kama Melly, the Conference Chairman, the audience was treated to an address by Alistair MacDonald QC, Chairman of the Bar.
Alistair paid tribute to the diversity of the legal profession, of those employed and self-employed, doing private and public work. He commended to the profession the Ministry of Justice crackdown on referral fees in its consultation, Preserving and enhancing the quality of criminal advocacy, published on 1 October 2015. He spoke of referral fees as being ‘kick-backs’ and ‘squalid backhanders’ and was scathing about those who hid referral fees under the cloak of an ‘administration fee’.
He also spoke about advocacy panels, saying that no ‘excellent advocate had anything to fear from them’, and that ‘excellence, rather than bare competence’ was required. He was adamant that the validity of our system relies upon excellent advocacy, which has a profound impact upon defendants, victims and their respective families. In covering court fees and the importance of courts, he was of the view that justice needs to remain at the heart of our constitutional framework.
Keynote address
Baroness Helena Kennedy of the Shaws QC gave the Keynote Address, expanding upon the conference theme. In a personal speech, she described her own career at the Bar and how satisfying she finds the law. Describing the UK as a ‘loadstar for justice’, she lauded a fearless legal profession that behaved with integrity, where human rights are respected and where other countries saw us having a ‘Rolls Royce’ service from which they were keen to learn.
She emphasised that each accused should have the right to fearless representation and that ‘lawyers should not be confused with their clients’. We should all be concerned about abuses in our name, be this from the media or other sources, she said, and shared with us her own experiences with the man who had challenged her for representing a Jihadist sympathiser.
Describing our legal structure as the ‘bulwark of our democratic system’, Baroness Kennedy said the rule of law was about being able to be held to account for the decisions made and the processes undertaken. She reminded us that there are countries where there are neither willing lawyers to protect human rights, nor judges willing to see that justice is done.
As for women and ethnic minorities, she decried the ‘incredibly clever but deeply silly’ individuals who considered fast tracking as the lowering of standards, when what should matter is ‘ability’, rather than how ‘well connected one is’. She emphasised that the Bar is more than a business, it is a vocation; and stressed the importance of the Inns as honourable societies which encouraged a collegiate atmosphere and good behaviour. She said that it was right that the award of ‘QC’ held ambitious people in check, but warned what might happen if experience and skills are not recognised and rewarded properly, which could only lead to negative outcomes for all.
Baroness Kennedy concluded that all good lawyers are human rights lawyers, concerned with the humanity and dignity of all. Describing all barristers as both caretakers and servants of the system, she said that advocates are the guarantee of why law matters, speaking out on behalf of the most vulnerable.
As a rousing but thoughtful speech, it received a tremendous reception. It was followed by real life examples of barristers who have worked pro bono to help the vulnerable.
Pro Bono Award 2015
Joseph Middleton of Doughty Street Chambers won the Bar Pro Bono Unit Award this year for his outstanding international human rights work, helping to end death row in Belize. In part thanks to his efforts, for the first time in decades there are no prisoners on death row there, with 37 prisoners formerly facing the death penalty being released in Malawi and a further 18 being resentenced.
Special mention was also given to Joe Hingston of Carmelite Chambers and his work as a trustee and unpaid manager of the Centre for Criminal Appeals. Thanks to this work, the charity has been authorised by the SRA and is seeking a criminal legal aid contract to conduct appeals.
Cloisters also received a special mention for the pro bono work done across chambers. Over 140 pro bono cases were taken on by its members over the past year.
YOU CANNOT BE SERIOUS
Melissa Coutinho reports on the Bar Standards Board session, exploring serious misconduct and fair allocation of work
The BSB session, with its nod to John McEnroe’s infamous exhortation, was a thought-provoking affair, where the focus was on the duty on all barristers in reporting the ‘‘serious misconduct’’ of others. A panel comprised Sir Andrew Burns, Chair of the BSB; Naomi Ellenbogen QC, BSB Board Member; Timothy Fancourt QC, Falcon Chambers; Ewen Macleod, BSB Director of Regulatory Policy; and Amit Popat, BSB Equality and Access to Justice Policy Manager. It divided up the session into two parts: one covered a fictitious (we hope) scenario, designed to test who had a duty to report; and the other covered real life examples regarding allocation of work and what is not permitted. There were some brave members of the audience, who admitted that their views amounted to a breach of the rules.
The nuanced exercise was based on a trial of a claim for rescission of a share sale agreement on the basis of a misrepresentation as to the liabilities of the relevant company. At trial, the cross examination by counsel for the claimant extended beyond the pleaded case, and beyond instructions in part. Conversations – between counsel, her Head of Chambers, a friend she speaks to and a friend he then speaks to – were all put under the microscope. While there was not time to consider the matters in depth, there were certainly contrary views expressed, including the relevance of matters arising during a trial that might be corrected by the trial process, and whether these changed the fact of ‘‘serious misconduct’’ even if there might well be mitigation.
There was discussion over the fact that much was left to the discretion of the individual barrister, in terms of what ‘prompt’ reporting meant, and the same circumstances being described as ‘borderline incompetence’ by one, as ‘over-enthusiasm’ by another, or even as ‘misconduct’ rather than ‘serious misconduct’. The BSB revealed that self-referrals are not uncommon, where people are cautious, but reminded everyone of the Bar Council’s Ethics Helpline, which provides an opportunity to seek advice, in advance of making a decision whether to report another or self-report. In addition to the rules surrounding reporting serious misconduct by others (Rule 66–99), new BSB guidance is available on the website.
In the second half of the session, Fair Access to Work was covered. The legal requirements, the regulatory requirements and the guidance that exists were all outlined briefly. The potentially discriminatory requests/instructions from solicitors, where a particular protected characteristic is sought (eg requesting someone of a specific gender or race), was explained to be unlawful. This is primarily because it is contrary to Equalities Act 2010 s 47(6) for there to be unlawful discrimination. By indicating a particular characteristic, there is discrimination against all those barristers who do not possess this characteristic. While there may be ever more inventive ways around this issue, it is nonetheless a rule covered in r C110(3)(i).
The allocation of work
This was similarly covered, so that there ought to be the opportunity for all in chambers to develop their skills and experience. Senior members of chambers and clerks can play an important role in work allocation and there should be training to ensure that all understand the role of diversity in ensuring the fair allocation of work. A system whereby it is transparent how work is allocated, with regular monitoring, and procedures for dealing effectively with complaints or concerns about the allocation of work, best protects everyone and ensures that no inadvertent bias goes unchecked. Regular meetings where such matters are considered were encouraged, as was the inclusion of those who want to develop in situations where formal or informal groups are organised.
Interesting conversations with practitioners from the audience made it clear that there was plenty of scope for people to feel aggrieved and that this could be managed best by careful monitoring.
DIVERSIFY AND THRIVE
Nigel Pascoe QC on the Circuit Leaders’ advice for the advocate’s survival at the modern Bar
There must be something in the air – or a more intuitive Lord Chancellor, respecting professionalism. This was an optimistic, well structured Circuit Leaders’ seminar, full of hope, chaired with relaxed charm by Andrew Langdon QC of the Western Circuit. He reminded us of our perceived skills; we qualify for more jobs than we realise. First, Max Hill QC from the South Eastern Circuit asserted that we were further from fusion than ever. The chambers structure was paramount, but within it real change was possible. In his chambers, new structures had emerged, pointing to a more diverse future. He spoke of add-on units or LLPs in niche subjects, such as private prosecutions, which then went on to be developed outside chambers. Some of these provide rentable income, while others, like out of hours specialist lectures, do not; but all were beneficial. Crucially, young barristers should be flexible, embracing secondments rather than the old, less flexible approach of working upwards from small beginnings. This was a substantial and measured contribution.
Andrew O’Byrne QC from the Northern Circuit pointed out the new work prospects arising from the Civil Justice Centre and big national firms with circuit branches. The Direct Access portal, vital to the future success of the Bar, was set up by Prudence Beever in his own chambers. Don’t despair. There is fantastic work out there. It was another upbeat, optimistic presentation.
Paul Lewis QC of the Wales and Chester Circuit said the ability of the Welsh Assembly to make laws was expanding and was providing huge opportunities for the Bar. Government lawyers were working with junior lawyers in an important new training scheme. Secondment allowed the unique opportunity to assist in the drafting of new laws. Similarly, there are good prospects of working with local authorities throughout Wales. With characteristic ebullience, he also painted a bright future to come from diversification.
Richard Atkins QC of the Midland Circuit, in candid and delightful form, tackled the question: When do you become too old to diversify? Answer: investigate, search, write and promote yourself. He had done so and it had worked. There is a huge raft of possibilities, not least the scope provided by regulatory bodies. Barristers can become lay members as well as legal assessors or Chairs. You can box and cox with your own practices. We need to change mindsets. His advice, in short, is to start ‘bigging yourself up’. Your correspondent inwardly cheered.
John Elvidge QC from the North Eastern Circuit spoke of real growth, with a number of sets of over a hundred members. The Mercantile Court, the Court of Protection and working with local authorities means there is now a huge range of work to be done on Circuit, both commercial and crime. Pupillages are up. So again, it was a very positive assessment. Andrew Langdon QC also confirmed the growth of recruitment and pupillage and the rediscovery of confidence on the Western Circuit, as your correspondent can confirm.
Three younger barristers also acquitted themselves well, largely without notes. Jane Oldfield, called in 2004, gave an excellent picture of working on secondment to the GMC after nine year’s Call and, in consequence, later being instructed by them. Fleshing out the advantages of secondment, she stressed the need to draw careful parameters between work and chambers. She had learned what those who instruct us don’t like. Regulatory work had led to work for both sides, including representing registrant nurses. There was ‘a rich vein of secondment opportunities’ and her practice had thrived.
Similarly, Sam Roake, four year’s Call, gave a straight-talking picture of a Serious Fraud Office secondment and the powerful transformation of cash flow which ensued. In answer to a question, he said that before secondment he was not running away from the Bar. He was taking a secondment to stay at the Bar and survive – and it had worked. Now he felt he had an excellent balance of work. We are advocates and also businessmen and we need to be entrepreneurs.
Last, Hannah Tildesley of three year’s Call gave a very fluent presentation of her experiences of environmental secondment and the practical pressures on those working within public bodies. She even instructed counsel, including her old pupil adviser. Hannah also identified the specific lack of service provided by some barristers, which is not appreciated. A second part-time secondment with Birmingham City Council had been equally worthwhile. Your correspondent predicts a bright future.
Finally, an outstanding contribution from a non-lawyer, albeit with close connections. Nicola Atkins, former legal recruiter, now executive coach and career planner, crammed in a huge amount of practical advice in minutes. Don’t just sit there: you need a plan, to understand yourself and to seek a strong network of business relationships. It is all about the messages you are sending out into the marketplace. Marketing depends on the quality of the message. Once the message is out there, it takes time to change it on social media, so you must send out clear messages. Networking is crucial. Our CVs must be relevant and evidence based. Concise Profiles are vital, to be tailored to the marketplace. Practice interview techniques, take skilled advice and know your weaknesses. It is not about luck but the effort you put into it. I cannot think of a better tutor. Overall seminar verdict? Champagne quality. Well done the Circuits!
THE BALANCE BETWEEN STATE AND CITIZEN: AN OPPORTUNITY FOR ACCOUNTABILITY
Mark Hatcher reviews the conference’s political debate
Representatives of the two main political parties in the Commons and the Liberal Democrats in the Lords joined Bar Council Vice Chairman-Elect, Andrew Langdon QC for a lively and well-attended panel session which focused on human rights and the extent to which the Executive was prepared to fund the justice system.
Opening for the Conservatives, Robert Buckland QC MP (Solicitor General) said he could not recall a time when the justice system was not thought to be in turbulence. He had detected an increasing divergence between the worlds of politicians and lawyers. As a Law Officer, he saw himself embodying a cross-over between the different parts of the constitution and ensuring that the rule of law was upheld. He looked forward to a full consultation on whether there should be a Bill of Rights. A considered rather than a knee-jerk response to satisfy ‘red top rage’ was needed.
For Labour, Andy Slaughter MP said that as a shadow justice minister for the entirety of the last parliament, he had watched the justice system being gradually dismantled. It remained under sustained attack. Although the appointment of a new Lord Chancellor was a positive step, Michael Gove had said virtually nothing about access to justice. He needed to address the damage caused by LASPO and the Coalition Government’s ‘Transforming Justice’ programme, as well as dealing with a crisis in our prisons.
For the Lib Dems, Lord Marks of Henley-on-Thames QC warned that a British Human Rights Bill could be ‘heavily opposed’ in the Lords. The Conservatives had not received a mandate for withdrawal from the ECHR. He was also worried about a growing unwillingness in recent legislation to trust the judges, citing as examples the criminal courts charge and curtailment of judges’ sentencing powers in section 28 of the Criminal Justice and Courts Act, and the barriers to judicial review erected by Part 4 of that Act.
In the course of questions, both Buckland and Slaughter shared the audience’s concerns about McKenzie friends. Buckland thought the public did not appreciate the risks of ‘legal quackery’. To applause, the panel chairman commented that the growth in unregulated and un-insured McKenzie friends was a reflection of the crisis in funding the justice system.
Slaughter said that public funding in family law had failed spectacularly. Labour had gone with the Coalition’s belief that mediation could help but it had not. Andrew Langdon drew further applause by observing that it was not as if the consequences of LASPO had been unforeseen. Lord Marks agreed that LASPO had caused ‘untold damage’, which would be why Liberal Democrats would be joining calls from the Bar Council in pressing the Government for early post-legislative scrutiny of the Act.
BUILDING BRIDGES WITH OVERSEAS LAWYERS
Melissa Coutinho reviews the Bar Council International Committee’s session on current international themes at the Bar
Moderated sympathetically by Amanda Pinto QC, Chairman of the International Committee, this session highlighted current themes in international work for the Bar. The International Committee’s panel included representatives from its geographical special interest groups, and led an open discussion on the current international programme of the Bar; the international business opportunities for barristers; working with lawyers from different countries and special interest groups such as Commonwealth of Independent States, Brazil, China and the Far East; exploiting business development opportunities successfully; and influencing future Bar Council programming. It concluded by passing on the top tips from James Dingemans QC, who prior to his High Court appointment, chaired the International Committee.
Discussing the development and enhancement of an international practice, the panel members included both barristers from other jurisdictions who instruct the Bar of England and Wales and barristers called to the Bar here but who practise internationally. The panel comprised: Rupert D’Cruz, Vice-Chairman of the Bar Council International Committee; George Z. Georgiou, Managing Partner of George Z. Georgiou & Associates LLC; Hugh Mercer QC, Vice-Chairman of the Bar Council International Committee, Bar Council Delegate to the Council of Bars and Law Societies of Europe (CCBE); and Frederico Singarajah, Chair of the South America Interest Group. Each gave a potted history of their own career development in terms of how they had developed their practice and the mechanisms that had worked for them.
While there were common themes, in terms of a love of foreign languages or travelling, the group made it clear that this was not a case of one size fits all. Fluency in a language other than English is not a prerequisite for developing a successful international practice, and there were myriad ways of ensuring that professional relationships translated into an increased likelihood of instructions being received. In fact, the session appeared to be a masterclass for any enterprising barrister in how to take responsibility for developing any successful practice, rather than simply an international one, albeit that element was emphasised. A follow up article in Counsel will expand upon the following list, which is intended to be a taster of the ideas that were shared.
Suggestions included:
There were also references to drinking, swearing and how appropriate Christmas cards were, but for more details, read the follow up article early in 2016…
WELLBEING AT THE BAR
Nigel Pascoe QC on the seminar of the Equality Diversity and Social Mobility Committee
So the last case went badly? Never mind. Pick yourself up for the next one. But what if that result had affected you so badly as to undermine your next appearance? Wellbeing at the Bar is a hugely important topic. Under the inspiring leadership of Rachel Spearing, the Bar Council, Inns, Circuits and others have all combined to fund a research product with practical implications. The focus will be on preventative measures. Hopefully, barristers will no longer carry their private agonies alone. There will be a way forward within the profession and the chambers structure to address their problems.
This seminar was ground-breaking and also very uplifting. Rachel, colleague and friend, set out lucidly and persuasively the aims of the project and the sophisticated degrees of research being undertaken. Elizabeth Rimmer, CEO of Law Care, told us what was already out there at the end of a telephone for lawyers in despair. No one is immune. This organisation has grown considerably from its modest beginnings and its number should be on every court and chambers notice board. Then James Periera QC, in a very articulate presentation, set out practical measures to survive. A few of his suggestions are worth noting. Book time out of the diary. Plan with your clerk time needed. Remember that less is more in skeleton arguments. And the best can be the enemy of the good, for pleadings, etc are not works of art but, more importantly, simply clear and correct documents. Take responsibility for yourself. Your correspondent was listening to a really outstanding advocate in excellent form. He was followed by Nick Hill, Vice President of the Institute of Barristers’ Clerks. He commended the joint cooperation needed to address these issues and did so in a way which deeply impressed your correspondent. Lastly and equally impressive, Sam Mercer put the position for the Bar Council. She is on the end of a helpline phone sometimes, and plainly is crucial to the future success of the project, with the clarity of vision that is required. Your correspondent risked a question: do we not need an appropriate person in every set as a first port of call for tenants and clerks? Happily, that was supported. I left, sure that my beloved profession was taking a brave and necessary step, which, in time, will be part of the furniture. Well done to all.
COURTS, THE BAR, THE CPS AND THE MOJ: WHO SAYS WE'RE NOT ALL ON THE SAME TEAM?
Chris McWatters reports
This session focused on the recommendations of three recent high profile reports: Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings, Sir Bill Jeffrey’s report on Independent Criminal Advocacy in England and Wales and His Honour Geoffrey Rivlin QC’s report from the Bar Council on Criminal Justice, Advocacy and the Bar.
First to speak was Sir Bill Jeffrey, who, 18 months on from the publishing of his report, had observed a low level of confidence at the Criminal Bar regarding the validity of its long term future. He said that there were many more people in criminal advocacy than there needed to be, and that much of that work was now being completed by solicitor advocates. He also noted that the way in which legal aid works in criminal law doesn’t stimulate competition or maximise quality. He suggested that it would make sense for the Legal Aid Agency to be more assertive in insisting on quality. He commented on the minimal levels of training that solicitors received before being appointed as advocates, as well as how judges all held strong views about the quality of advocacy in criminal courts. His two possible remedies for the Criminal Bar were either that it competed with solicitors for legal aid contracts, or that there was a professional structure whereby aspiring advocates spent time as solicitors, with the Bar in turn becoming a specialist entity for those who had come through the training.
His Honour Judge Rivlin QC expressed similar concerns, suggesting that we might be sleepwalking into losing the independent Criminal Bar. He had been told horror stories of how certain criminal solicitors were treating the Bar, solicitors whose only concern was how to make a profit. He was critical of solicitors wanting referral fees from the Bar, viewing such fees as bribery and corruption. He spoke of concern about the junior Bar, noting that many were leaving on secondment, unlikely to return, as they were unhappy and disillusioned about the way they had been treated. He said that he strongly believes that junior members of the Bar should not be asked to go to court unless they get paid the same rate as any other advocate. He also believes that Heads of Chambers must take responsibility to ensure that pupils are properly treated. He thinks that the Bar needs to be outward looking, and concerned with providing a first rate criminal justice system. ‘If the law has a shop window, criminal justice is it,’ he said.
Standing in for Sir Brian Leveson was Max Hill QC, who had various suggestions to make regarding the improvement of the criminal justice system, not least ensuring that defendants who were held in custody were brought to court on time. He said it was important that advocates had ownership of their cases, and that one way to help achieve this was to abolish warned lists. He also suggested that an advocate’s availability should be taken into account when listing trials, and observed that currently it is virtually impossible for clerks to get hold of list officers at court as the phone is never picked up.
He suggested there should be a defence panel of advocates in the same way as there is in the CPS, as not enough defence work is getting to the right advocate. He said that advocates should be involved in pre-trial work, but this should be paid for. ‘Do not ask the profession to work for nothing,’ he stated. He said that courts should set aside one afternoon a week to conduct virtual hearings, so that advocates aren’t expected to down tools in the middle of a trial in order to cover them. He is against the introduction of single joint experts, believing that this would be contrary to the interests of justice. Contrary to what was observed by others, he said that he doesn’t believe the profession is ageing and dying out. For Hill, it is important that the Criminal Bar remains confident, as this will radiate outwards.
During the discussion afterwards, further concerns about the demise of the Criminal Bar were raised, and the threat posed by the proliferation of solicitor advocates.
CRIMINAL BAR ASSOCIATION: SECURING THE FUTURE OF THE CRIMINAL ADVOCATE
Mark Fenhalls QC and Daniel Sternberg introduced the session with a brief account of recent history since April 2013, when the MoJ had launched a consultation entitled Transforming Legal Aid. This had led to an unprecedented mobilisation of both professions and a significant change of opinion by the last Lord Chancellor. More recently, the Bar had been encouraging the MoJ to respond to Sir Bill Jeffrey’s review of independent criminal advocacy, published in May 2014. They spoke of the Bar’s regret about the ‘Two Tier’ contracts that the MoJ seemed intent in bringing in and their fears about how this would irrevocably damage the criminal justice system and unchecked would present a threat to the existence of the publicly funded Criminal Bar.
On 1 October, the MoJ published the recent consultation Preserving and enhancing the quality of criminal advocacy. This consultation was a welcome indication that the government is committed to making sure that advocates are briefed because they are the best available, rather than because of the financial interest of the person sending the work. The proposed idea of panel schemes is something which no advocate who has confidence in his ability and reputation should fear.
The Leveson Review has prompted a series of changes to the way in which criminal litigation would be conducted in our courts. In July, the Lord Chief Justice had issued a new Practice Direction and the Criminal Procedure Rules have been updated. On 5 October, ‘early adopter’ courts entered the world of Better Case Management (BCM), Plea and Trial Preparation Hearings (PTPH) and Further Case Management Hearings (FCMH). At the same time, the courts are implementing a digital revolution as wifi is extended and we all start to use the new Digital Case System (DCS).
The conversation turned to the open consultation by the BSB on The future of training for the Bar. This was to form the basis of much of subsequent Q&A session. The panel spoke of the increasing struggle to attract and retain talented young advocates to publicly funded work. There was a consensus that few thought their experience at the BPTC (which this year costs £18,000 and to this you must add the cost of living in London) was of much use when it came to pupillage. Everyone also agreed that it was deeply unfair to have so many students passing through this year when the prospects of actually obtaining pupillage at the end were so slim. Decades of social progress towards a truly diverse profession are going to be reversed unless ways are found of reducing the costs of professional training.
TRIAL OBSERVATION AND SHOW TRIALS
The Bar Human Rights Committee (BHRC) was initially established to support lawyers and judges internationally in countries where the rule of law was broken. Our mandate has expanded over the years and one of our activities is trial observations. The session aimed to be practical, equipping the audience with the essentials of conducting trial observations and highlighting their positive impact. Blinne Ni Ghrálaigh (Vice-Chair of the BHRC and Barrister at Matrix) provided an overview of the different types of observations (systemic, thematic and ad hoc) which tied into the selection of observers. An observer must be independent, impartial and objective; this is key to the acceptance and reliability of the findings. She then highlighted practicalities which observers should have in mind.
Mads Andenas (Chair of the UN Working Group on Arbitrary Detention) highlighted the importance of a good trial observation report. He used as an example the usefulness of the BHRC Observation on the trial of Mohamed Nasheed, the former President of the Maldives, for the Report of the UN Working Group on Arbitrary Detention. Observations and recommendations in the reports should be linked to international law which in criminal law are fair trial rights which form part of customary international law. Specifically, these are the requirement for an independent impartial competent court in which due process guarantees are observed.
Alex Wilks, principal programme lawyer for the International Bar Association’s Human Rights Institute (IBAHRI), spoke of two observations in Venezuela, one of Judge Maria Lourdes Afiuni, and the second that of her defence lawyer, José Amalio Graterol. His comments focused on the impact of trial observation and how the presence of international observers leads to a more cautious attitude by judges, with an element of saving face. It also can have a calming effect on the defence teams, although as observers you should avoid displays of solidarity. He also spoke about how failings should be linked up to any broader systemic issues.
Kirsty Brimelow QC (Chair of BHRC) chaired the panel and addressed the impact of BHRC’s work. Kirsty relayed her own experience of Bahrain in March 2009, where it was not only observation of the trial that was important, but also the meetings with key position holders in government and prosecution. All 24 defendants received a pardon. In 2012, BHRC intervention included media strategy. This led to the release of the former Attorney General of Malawi Ralph Kasambara, the state having ignored rulings of the courts for his release. She also spoke movingly of receiving a letter from a lawyer in South Sudan. He had written to thank BHRC for its part in securing his release from arbitrary detention.
Peter Carter QC (former Chair of BHRC and member of the BHRC Advisory Board) spoke from the audience, commenting that according to Sir Sydney Kentridge you cannot be partisan, but as a lawyer you always are biased towards the rule of law.
Any intervention or activity you conduct as an international lawyer, motivates local human rights defenders to keep going and to have confidence that they are on the right path. Trial observations play a number of different roles and are important in upholding human rights. If you are interested in learning more or getting involved with the work of the BHRC get in touch with our Coordinator, Céline Grey at coordination@barhumanrights.org.uk.
Dr Theodora A Christou, Elected Executive Member of the BHRC
MEDIA DEBATE: FREEDOM, LIBERTY AND FAIR REPORTING
In the wake of the ‘phone hacking debacle, the resultant closure of the News of the World, the Leveson Inquiry and the failed prosecutions against journalists, a panel largely comprising members of or sympathisers with campaign group Hacked Off debated the merits of various forms of press regulation.
Most threw their weight behind the recommendations of the Leveson report to regulate an out of control press that encroached on and destroyed people’s lives with their dishonest tactics.
The one panel member who extolled the merits of a free voice was Bob Satchwell, executive director of the Society of Editors, who argued that the criminal law already dealt adequately with all the wrongdoings that had come to light during the hacking scandal. Further regulation, he said, was not needed and would only serve to damage and constrain an investigative, enquiring and free press.
Mick Hume, Spiked’s editor-at-large, maintained that the first and final word on the state’s relationship with the media should be those on freedom of speech included in the first amendment to the US constitution:
‘Congress shall make no law ... abridging the freedom of speech, or of the press’.
His simple point was that either you have a free press or you don’t; the downsides of that freedom are just something that you have to put up with for the greater good of not having it state controlled.
Freedom of speech and a free press, he said, were like a rose – you have to put up with the thorns in order to have the flower.
Hacked Off chairman and barrister at Matrix Chambers, Hugh Tomlinson QC maintained that a free press would not be destroyed by regulation.
Dr Evan Harris, joint director of Hacked Off and former Liberal Democrat MP, gave a tub-thumping speech in praise of Leveson and the need for a Royal Charter to rein in the evils of the tabloid press.
The middle ground was occupied by Professor Steven Barnett, a professor of communications at the University of Westminster. While blasting the unethical phone-hacking style of journalism, he bemoaned the demise of the News of the World, which he said had a history as a campaigning newspaper.
He was concerned that the whole affair would deter ‘hacks’ of the future, in whom he was keen to instil the idea of good, positive (or ‘St George’, as he called it) journalism.
Barbora Bukovska, senior director for Law and Programmes at the leading freedom of expression NGO, gave an international perspective, countering the perception that journalists in overseas countries, even those with state-controlled media, viewed Leveson with contempt.
Tim Cunningham, executive producer of Channel 5 chat show The Wright Stuff, told the audience that print journalists do not know how lucky they are – broadcasters, he bemoaned, have to obey the whims and rules laid out by their regulator Ofcom.
Catherine Baksi
SURVEILLANCE AND PRIVACY IN A MODERN DEMOCRACY
This session was moderated by Sir John Mummery, former President of the Investigatory Powers Tribunal. He welcomed the opportunity provided by the proposed new Bill to redraft and consolidate the legislation governing investigatory powers. He commented that he had found the Regulation of Investigatory Powers Act (RIPA) the most difficult piece of legislation he had encountered in his entire judicial career. He commended David Anderson QC for his clear and thoughtful report A Question of Trust.
Nicholas Griffin QC set the scene and explained the meaning of legal professional privilege (LPP) and the legislative framework, including RIPA. He also explained the significance of the decision in Re McE [2009] UKHL 15 in which the majority of the House of Lords had decided that Parliament intended to allow the security services to ignore LPP in certain circumstances. This is likely to have a chilling effect on clients’ willingness to be frank with their lawyers, which will make justice more difficult to achieve. He also explained the circumstances in which communications with lawyers do not attract LPP and said the examples cited by the security services as a reason for extended powers already fell within this category and so inroads into LPP were unjustified.
David Anderson QC, Independent Reviewer of Terrorism Legislation, explained his role as IRTL and the background to his report A Question of Trust – Report of the Investigatory Powers Review. He gave his conclusions on the questions of protection of legally privileged communications compared with the need for state investigatory powers and whether protection for LPP should be absolute or qualified. The decision was ultimately one for Parliament, but democracy only flourishes when the citizens of a state feel they can trust the executive, including the security services. Trust requires an element of transparency and judicial oversight. Judges are, and are seen to be, independent.
Mike Schwarz, a partner at Bindmans, explained the nature of his practice, particularly the representation of political activists and campaigners on issues such as the environment, animal rights, peace/disarmament, race and social justice. He shared with the audience his experience relevant to state use of investigatory powers, breach of LPP and effect on clients and on his ability to represent clients who became unwilling to disclose important evidence in what should be confidential communications protected by LPP.
Peter Carter QC, who has just taken over from Nicholas Griffin as Chair of the Bar Council Surveillance and Privacy Working Group, said that in a legal system which had no constitution, it is important to maintain robust legal oversight on executive action, particularly that which attracts the protection of secrecy due to its necessary sensitivity. LPP is recognised internationally as an important right of citizens, especially when engaged in litigation with the state. It is significant that HMG firmly protects its own LPP in international cases. He said the Bar Council is concerned about possible inroads into the absolute protection needed to make LPP effective in securing citizens’ trust in our system of justice. Unless LPP is expressly protected in primary legislation the example of Re McE shows that essential rights can be undermined.
There was so much for each speaker to cover in the session that sadly there was no time to open it up to questions from the floor. It was a packed room and was a session that all would have been happy to see continued.
THE CLOSING ADDRESS
Chris McWatters reports
The closing address at the Bar conference was given by the Right Honourable Dominic Grieve QC. He was introduced by Alistair MacDonald QC, who suggested that Grieve’s sacking by the prime minister as attorney general should be thought of as a badge of pride, as it set him out as a man of principle (due to his opposition to the government’s intention to repeal the Human Rights Act).
The subject of Grieve’s address was the role of the advocate in the relationship between the citizen and the state. He started his talk by reminiscing about a ‘surreal’ occasion when he had decided to dine with his wife as a Bencher on a Saturday night at the Middle Temple, and it turned out they were the only Benchers present – all the others were watching an important England rugby match. At the end of the dinner, he went round to talk to students who had come to the Inn to complete their dinners, and was surprised to discover such genuine enthusiasm for the Bar, which gave him reason to be optimistic about the Bar’s future.
He confessed to having been gloomy about the future of the Bar a year ago, aware that the quality of advocacy in the criminal courts had diminished with more solicitor advocates stepping into the role of barristers. He also commented on the increase of litigants in person in the family courts. Overall, he felt, the interests of justice were not being well served. As evidenced by this downgrading, he noted that the value of a competent advocate was not appreciated by the Treasury.
However, he suggested that an interesting public debate was emerging about the rule of law in this country, in particular in respect of the Human Rights Act and judicial activism, as well as our membership of the EU. He said that he believes that the current Lord Chancellor, Michael Gove, in spite of not being legally qualified, has a strong sense of office, and is someone who understands the rule of law. As a result of dialogue with the Ministry of Justice, he said, proposals for fees in the criminal courts had been shelved, and the proposed UK Bill of Rights had been put on the back burner.
Grieve then argued that the best-selling point for the Independent Bar was excellence in advocacy. He said that the need for reform is obvious and he is a supporter of the introduction of the Quality Assurance Scheme for Advocates (QASA), as well as being enthusiastic about panel systems for advocates as a way of marking out quality.
Grieve commented on the gulf that existed between politicians and lawyers. However he believes that this gap may be narrowing with the arrival of some extremely articulate lawyers in parliament, such as Keir Starmer QC. In commenting upon the relationship between the state and the citizen, he suggested that lawyers should think of the state as a client with a lot of problems, such as finance, mass migration, terrorism, devolution and parliamentary sovereignty. He said that the government needs help from lawyers, and the Bar should use this as an opportunity to show the government what it has to offer. He concluded by reminding the Bar that barristers in the 17th century had so impressed King James I that he had declared they should have Middle Temple for all time.
The conference generated much activity on Twitter. To see what was tweeted on the day visit here.
Counsel will be carrying a report of the Young Bar Conference in the next issue.
The 30th Annual Bar Conference, together this year with the Young Bar Conference, took place on 17 October. Counsel reports on the day
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