As 550 delegates gathered in London’s Hilton Metropole on a cold and rainy Saturday autumn morning, some might simply have thought they had better places to be and been longing for their beds. That feeling will have quickly and readily been shaken off as Conference Chairman Alison Padfield set a positive tone for the day telling delegates that whilst the Bar might still wear wigs and gowns, it is a modern and adapting profession.
She was followed by the annual address from the Chairman of the Bar, in which Michael Todd QC reflected on his year in office and offered a powerful articulation of the Bar’s value to society and role in underpinning and promoting the Rule of Law. Integrity and independence are, he argued, at the heart of what the Bar does; rather than the key performance indicators by which, he suggested, the Legal Services Board is driven. But he delivered a strong message to the Bar to take charge of its own destiny, to stop being reactive and responding to the change going on all around it, but rather to use its 800 years of knowledge and experience and to lead the conversation.
All of which set the scene for Rafferty LJ to send delegates off to the morning’s workshop with a spring in their step and a sense of optimism and enthusiasm. She did not disappoint.
Considering carefully the concept of elitism within society, and in the profession, she took delegates on a charismatic and engaging tour from ancient Rome to Skegness, via the Pharaohs; probably a first.
A place in the elite has always been the stuff of aspiration, but the world, it seems, has changed, at least in a professional context (if not in the world of sport, that rare arena in which the label ‘elite’ is still used as a compliment). Aspiration is encouraged and taught, but something gets lost from the broad base to the narrow tip of the Bar’s pyramidic structure. The Bar winces at the word ‘elite’, but it is at odds with what it asks of, and holds out to, its entrants. They reach for the top, they strive for excellence, and quoting Martin Shaw’s Kalisher Lecture, they “stand proud in a world of mediocrity”. And that is something of which the Bar should never be ashamed. But so too must it use that privileged position to inspire the next generation; not just through words, but through its actions, through engagement with outreach programmes, formal or informal. Aspiration is good, but when those once aspiring arrive, where do they go if they cannot aim for the pinnacle?
And yet no commentary can do justice to the panache and humour with which the keynote address was so stylishly delivered. The live tweets which accompanied Rafferty LJ’s speech are the most effective means of capturing the response of the audience. The words ‘master class’, ‘impressive’ and ‘inspiring’, ‘warm’, ‘witty’ and ‘wise’ were just some of the recurring descriptions of a speech which rewards being read in full.
Three speeches, three different styles, tones and intentions, but a prevailing and uplifting message endured. The Bar has a rich history, rich traditions and a keen sense of its place in history. But it has moved with the times, adapted and evolved to offer its services in a relevant and accessible manner. And most of all, its values have survived and continue to flourish. Integrity, excellence and justice are not just abstract words to today’s barrister. Along with a lasting sense of social responsibility and a deep and enduring commitment to the Rule of Law, they resonate and they endure.
Michael Todd QC’s full speech can be found at: http://bit.ly/VYcpEx and Lady Justice Rafferty’s can be found at http://bit.ly/W41aph.
Cutting Legal Aid: Damaging Democracy and Killing Open Justice
Criminal Bar Association - David Wurtzel reports
Michael Turner QC, Chairman of the Criminal Bar Association, opened the session with ‘our profession is being destroyed’ and ‘our citizens’ access to justice’ is being stolen from them. He noted that ‘strangely’ the Attorney General was not there to hear the message which he would have wanted him to take back to the Ministry of Justice.
In the event the first two guest speakers chose to talk about something else. Roger Smith OBE, who until recently has been Director of Justice, outlined his concerns about the Justice and Security Bill which is currently before Parliament. In particular he warned about the proposed ‘closed material proceedings’ which would ‘trump’ the existing regime of public interest immunity in excluding from a trial material which is damaging to the interests of national security. It is the Secretary of State rather than a judge who would so certify, although Roger said there is no known case where a judge has ordered the disclosure of material which was contrary to national security. The Bill was ‘unfair, unnecessary and unjustified’.
Clive Stafford-Smith, founder and Director of Reprieve, robustly insisted that he wanted to talk about what most worried him, which was the ‘conflation of national security with political embarrassment’. It was ‘where you guys can help me’ and he used the platform to try to enlist volunteers. He outlined four cases which he is doing in the United Kingdom. All come back to the issue of keeping government policy secret—secret even from Ministers and the Secretary of State.
The four cases included complicity with the actions of the United States in the use of drones and assisting in the rendition of individuals (and families) to Libya and in Iraq. Speaking with passion and in detail he pleaded that these injustices, cloaked by official secrecy, were the ‘threat to the society’. As a man who got paid $1000 to do a death row case and whose hourly rate was raised to a mere $25, he declared the threats he outlined to be ‘far greater’ than ‘the pay that lawyers receive’. He asked us to stop the Government ‘taking an open society and making it a less open society’.
Michael Turner QC then spoke. In a striking plea to return the Bar to what it had been, he dismissed the ‘miracle cures’ ProcureCo (‘impossible to use without chambers going bankrupt’) and direct access (‘utter sham’). Alternative Business Structures were equally unacceptable. He said that the millions slashed from Government budgets had produced no savings: delays were endemic, the disclosure regime was ‘almost broken beyond repairs’, private company translators could not speak the language of the witness and privatised prison services did not deliver defendants on time.
Now the Government is simply trying to ‘get rid of the Bar’, slashing fees as part of the long term strategy to starve the Bar of young entrants. QASA was the precursor to OCOF (‘one case one fee’) where the contract would go to groups like G4S. In five years’ time ‘an important cornerstone of our democracy will have been taken from’ us.
Last year’s conference was told that the criminal Bar could go on strike. It didn’t but Michael asked those in the room not to act like ladies and gentlemen but to join their brothers and sisters in the solicitors’ profession, to fight together: ‘what we need is not direct access, it is direct action’.
Last on, Sir Anthony Hooper, who has just retired from the Court of Appeal, expressed his own concerns about the Government’s competition strategy. The squeeze on work and fees meant that young barristers would take cases more suitable for those more experienced and would (and have) pay referral fees to do so. He called on the judges to be more interventionist in making sure that competent counsel is instructed. If a judge suspects that this has not happened then he must remind counsel of his power to make a wasted costs order and to use those powers if a trial has to be put back or even aborted. Defendants will not be aware of what is going on and these issues should be explored before the trial begins.
The Future Face of Litigation
Nichola Higgins reports from the Young Bar Committee
The Young Bar session glimpsed the future in a positive and constructive seminar analysing the future face of litigation. The session, chaired by David Nicholls, the Young Bar Chairman, combined presentations from Derek Wood CBE QC, Oliver McClintock from Opus 2 International and John Seed, a partner from the Brown Rural Partnership.
Derek Wood QC dealt with the future of written advocacy. The backbone of our justice system is currently oral advocacy in a courtroom open to the public. However, skeleton arguments are the norm in civil proceedings and increasingly used in criminal trials. According to Derek Wood QC, the skeleton argument is an unqualified benefit. It narrows what is to be said in court and forces advocates to think deeply about the issues. Written closings are also becoming routine but why not go further? Why not, for example, have “paper only” appeals to the Court of Appeal? Little objection can be posed to skeleton arguments on sentencing law served in advance thus allowing the advocate to concentrate on mitigation. In his view, the bigger question is the extent to which juries should be provided with written guidance, lists of questions, outlines of issues and legal rulings in writing. He even foreshadowed the possibility of advocates providing closing submissions in writing to the jury.
Derek Wood QC’s prediction is that the future of litigation will exhibit written advocacy even more prominently, together with time restricted oral submissions. That said, how such material is made available to the public requires consideration. But there is no suggestion of losing the oral tradition. Written evidence will never replace “the ring of truth” from a witness’ mouth and in fact, it was suggested that reliance on witness statements as evidence should be reconsidered.
A presentation followed by Oliver McClintock on Opus 2 International’s Magnum software for electronic trial bundles as used in the Beresovsky v Abramovich litigation. Briefly put, the technology is a simple-to-use interface for accessing and managing key content. It can be used at any stage in the trial process most typically post disclosure once documents have been whittled down to the key trial documents. The software replicates what would otherwise happen in hard copy. Each side is given access to a mirror image of the case papers and trial bundle, but the work product of each side is kept private so there is no danger of contamination.
The innovative features include: “click of a button” access to authorities; comparison viewing of documents; the creation of hyperlinks to allow rapid navigation through material; the ability to view all references to a particular document in the papers, and audio synchronised transcripts. Particularly useful is the sharing of comments and annotations prompting immediate email notification containing a direct link to the comment.
Importantly, the technology has the potential to save money, particularly in very document heavy litigation. It was estimated that it would have cost £26,000 to print one set of the trial bundle in Beresovsky v Abramovich alone. Lucinda Orr from Skadden Arps, who acted for Abramovich, praised the technology but noted its cost, which, although falling, currently places it out of reach for most.
Derek Wood QC also warned that unless informed critical judgment is exercised, new technology has the potential to load trials with increased documentation of little forensic value. Advocates, he said, must be instructed at an early stage in order to identify key documents thus saving the client money in the long run, and shortening any subsequent trial.
John Seed then spoke about hot-tubbing – perhaps not a thought frequently combined with expert witnesses. Back-to-back expert evidence is currently the convention. However, if both experts are in the witness box simultaneously (now you get it) it allows both experts to answer questions from the judge at the same point in the trial and allows each expert to comment on the other’s evidence. As a result, the evidence becomes more discursive, rather than adversarial. While, the benefits include more focussed and consequently shorter expert evidence, clearly a judge led discussion of expert evidence may suit hearings dealing with points of law rather than contested trial proceedings.
A Call for Specialists
David Wurtzel was at the Advocacy Training Council workshop: How difficult is it to cross examine a vulnerable witness effectively?
The Advocacy Training Council workshop came last in the day and was only given a 70 minute slot but it meant that it was very well attended.
Most useful was the demonstration by Patricia Lynch QC of 18 Red Lion Court of two styles of cross examining a young witness—one full of tagged questions and unsuitable vocabulary; the other used more open questions while still putting the defendant’s case by creating the alternative scenario. In addition to speaking from the point of view of 30 years of practice, she is part of the faculty at the Serious Sexual Offences seminar run by the Judicial College and so was able to tell the group what the judges are taught. This includes the need for a ground rules hearing and the fact that it is not necessary to put the defendant’s case in a traditional way (‘a complete culture shock’, she called it).
These issues and much more (e.g., timetabling) can found on the Judicial College Bench Checklist for Young Witness Cases which has been available to anyone who searches for it on the web since January 2012. It also contains a link to Measuring up?, the seminal study on children giving evidence. Only four of the many there had ever taken part in a ground rules hearing though they all said they found them helpful.
Patricia Lynch added some other guidance: early preparation of your cross examination, make your cross examination short, if you don’t need to ask something don’t, avoid fillers that are really ‘thinking time’ (‘I suggest’/’do you agree?’) and remember that this is a conversation, not an interrogation.
Bobbie Cheema, who chaired the working party that produced Raising the Bar also did a useful demonstration of cross examination based on four scenarios which had been handed out. She asked the group how they would prepare to cross-examine a child. Bobbie approved of all the suggestions from using pictures or storyboards to defence counsel looking up the child on Facebook, and asking the Crown for sight of the child’s social services, school and GP records, to find out more about them.
The fact that both prosecution and defence counsel needed to be aware of good practice and needed to learn these skills was emphasised by Lesley Bates of 23 Essex Street. She was able to announce that the CBA/ATC/NSPCC training DVD on vulnerable witnesses and defendants should be available online in the early New Year. It will include those who are vulnerable both by disability and by age alone, and will feature a Crown Court witness and a defendant in the Youth Court, with ‘how not to/how to’ demonstrations. An Intermediary also appears and shows how her report can assist everyone to make sure the witness can give their best evidence.
The launch of the DVD was said by Julian Goose QC to coincide with the online toolkits which can already be found online in draft. They offer guidance on dealing with children and people with a range of conditions (e.g., autism) and are considered invaluable by practitioners, police and judges, the latter of whom may well ask whether counsel have consulted them. They will be of help to counsel practising in all areas of law, as was pointed out during a question from a family practitioner—family lawyers have of course since December 2011 had the advantage of the Family Justice Council guidelines on children giving evidence in the family courts.
Raising the Bar called for the development of such toolkits. This did not happen until three experts in their field who are outside the Bar took the initiative to write and develop them with the crucial input of many people across a number of disciplines. Sadly there was no acknowledgement of this at the workshop. It is their efforts which are due to be adopted by the ATC on their website.
BSB: An Outcomes-focused Approach
Understanding the new handbook. Nichola Higgins reports
This session hosted by the Bar Standards Board (BSB) discussed the new Handbook (recently the subject of consultation) which will eventually replace the existing Code of Conduct. Adam Sampson, the Legal Ombudsman, chaired a panel consisting of Patricia Robertson QC ( Vice Chair of the Bar Standards Board), Christopher Convey (member of the Professional Practice Committee of the Bar Council) and Amanda Jane Field (Co-Vice Chairman of the Employed Bar Committee).
The new code of conduct, to be known as the BSB Handbook will be “outcomes focused” but have at its centre core duties, under each of which sit regulatory outcomes, rules and guidance to provide clarity.
The ten core duties are the mandatory standards that all BSB regulated persons are required to meet. They include, as might be expected, a requirement to act with integrity and honesty. However, others are perhaps more troubling, such as the duty to “be open and co-operative” with regulators or to manage one’s business effectively.
The Handbook was generally described as an improvement and easier to negotiate. However, the lively question and answer session highlighted topics of enduring and particular concern: the reporting requirement; the unavailability of direct access where legal aid may be available, and referral fees.
The reporting requirement is a rule requiring barristers to report to the BSB serious misconduct by another relevant individual. The justification for the rule is that it is in the public interest that the BSB is informed about and investigates potential misconduct. “Serious misconduct” is loosely defined in the Handbook and is not limited to conduct which might lead to a miscarriage of justice. It includes (but is not limited to) dishonesty, disreputable conduct such as harassment or seeking access to confidential information relating to the case of an opposing party, or another member of chambers or staff, disreputable conduct in relation to court proceedings, or failing to report such an instance to the Bar Standards Board.
Comments on the rule voiced concern that it could shatter the collegiality of the Bar, or that it might prove open to abuse by becoming a “tittle tattler’s charter”. However, the lay perspective from Adam Sampson was instructive. In his view, it is neither morally nor ethically defensible to see serious misconduct and not to report it. As a starting point that is difficult to argue with, and therefore it seems the real difficulty lies with the lack of definition of “serious” misconduct. Barristers concerned about their own conduct or that of another may consult the BSB ethical helpline. Those who are informed of the misconduct through the helpline will not be required to report it to the BSB as a result of legal advice privilege. However, no such privilege will apply to communications with a pupil supervisor or a Head of Chambers who will be obliged to report matters to the BSB if they take the view that serious misconduct has occurred.
Patricia Robertson QC, answering a point that this will deprive the junior Bar of a source of guidance, pointed out that while members of chambers are individuals, they cannot simply ignore serious infractions by other members of the same umbrella organisation under which they practise. However, the action that would be required of individuals will vary according to their position within chambers.
Much debate centred on the rules relating to direct access and the current prohibition on direct access where legal aid is available to the client. Many bemoaned the length of time this issue had existed without resolution. Patricia Robertson QC confirmed that the BSB had consulted and recommended a change to this rule. However, the proposals are currently with the Legal Services Board.
Referral fees also played a prominent part in this session. Under the new Handbook, they will remain prohibited and Christopher Convey confirmed the view of the Bar Council that referral fees are unlawful under the Bribery Act 2010. However, it would appear that the Legal Services Board, who tolerate referral fees, does not accept that analysis. Patricia Robertson QC made a broad appeal for evidence of referral fees in order that the BSB may investigate and persuade the Legal Services Board of the nefarious impact of such payments on both the public interest and on clients who are normally unaware of them. Currently, the BSB is powerless unless evidence of referral fees is brought to its attention. As one comment on Twitter put it – if you see it, report it. The duty to do so lies with us all.
All Change in Private Law? Norgrove and the New Era
Chris McWatters reports from the Family Law Bar Association
The Family Law Bar Association (FLBA) session was called ‘All change in private law? Norgrove and the new era’, and the key area of concern for all the speakers was the proposed Government changes to the Children Act 1989. This will introduce a legal presumption that both parents should be involved in a child’s life. All the speakers and the moderator spoke out against this proposal on the basis that it detracts from focusing on the welfare of the child, and creates a perception of parental rights. The speakers were Stephen Cobb QC (former chair of the FLBA), Professor Rosemary Hunter of Kent University and Caroline Davey, director of policy, advice and communications at ‘Gingerbread’, with Nicholas Cusgrove QC, chairman of the FLBA acting as moderator.
Stephen Cobb QC offered up a crisp analysis and critique of the proposed changes, pointing out that the recent Family Justice Review concluded that any change in the law that encouraged shared parenting was unwelcome. However following a Government consultation this summer entitled “Co-operative parenting following family separation”, the Government concluded that a change in the law was necessary to help restore confidence in the family court system. Cobb quoted Edward Timson to Sir Alan Beith at the beginning of November, who claimed that the proposed legislation would “....help dispel the perception that there is an in-built bias towards one parent”. According to the Government, 52 per cent of respondents to the consultation favoured introducing this presumption. It transpired that one third of the respondents were fathers, but the entire FLBA response only counted as a single respondent.
Cobb pointed out that this legal presumption that both parents should be involved in a child’s life will be rebuttable. This would mean that there would have to be ‘some evidence’ that the involvement of a particular parent in the child’s life “would put the child at risk of suffering harm”. However Cobb is ad idem with Lord Justice Thorpe on the question of presumption, quoting him in Payne and Payne  EWCA Civ 166 “I do not think that such concepts of presumption and burden of proof have any place in the Children Act 1989 litigation where the judge exercises a function that is partly inquisitorial”. He also cited the recent case of Re F  EWCA Civ 1364, where Lord Justice Munby expressed a similar view. Cobb highlighted his concerns about the wording of the legislation, which may well prove to be a recipe for litigation.
Caroline Davey spoke from the perspective of her experience working at “Gingerbread”, which is a charity that advises and supports single parent families. She stated that 90 per cent of separating couples make their own arrangements over children, with the remaining 10 per cent going to court. A substantial proportion of those cases involve allegations of violence or abuse, mental health problems, drink or drug addiction or dangers to the child.
She commented on how the proposed legislation came into being. The Coalition agreement in 2010 included a commitment on shared parenting. This was picked up by a powerful lobby promoting father’s rights, which was in turn supported by both Government ministers Tim Loughton and Edward Timson. Their argument was that there is as strong perception that the current legal system is biased against fathers.
Davey is concerned that the proposed change will create both confusion and misperception of parents “rights”, and that this will trigger an increase in the court population. She is also concerned that the changes risk exacerbating conflict between parents sharing care, and that this will lead to a negative impact on the children. She also pointed out that these changes will take place against a difficult economic environment with the loss of legal aid.
Professor Rosemary Hunter of the University of Kent referred to the research evidence on contact, in particular the Sturge/Glaser report which found that a child will not benefit from contact where the parent has nothing positive to offer the child. She also stated that shared care that is court ordered in high conflict cases tends to be adult focussed and more damaging to the children.
Professor Hunter commented on the Australian experience when in 2006, amendments were made to the Family Law Act 1975 which incorporated a presumption that that equal shared parental responsibility was in the best interests of the child. And if the presumption of equal parental responsibility applied, then the court must consider whether it is in the child’s best interests to order equal or ‘substantial and significant’ time with both parents.
The consequences were that it created a public perception that shared time was the default option, and arguments both in and out of court focused on parental rights rather than children’s welfare. There was an increase in court ordered shared time arrangements from 4 per cent to 34 per cent, and violence and safety issues were comprehensively sidelined. In 25 per cent of cases, unsafe and damaging parenting arrangements were both ordered and ‘agreed’. This resulted in a further amendment to the Family Law Act 1975 in 2011, which established that the court had to give greater weight to the protection from harm of a child than the benefit of a meaningful relationship with both parents.
Professor Hunt agreed that the proposed changes to the Children Act seem very much like the current situation, which is generally pro contact unless evidence points to the contrary. However she expressed concern that issues of potential harm could be sidelined as in the Australian experience, as well as the possibility that they may now be a higher evidential burden for a parent contesting contact applications, who won’t necessarily have access to legal aid.
During the Q & A session at the end, it was argued that the proposals were a positive step, given that currently there is a presumption in the family court that contact is beneficial for the child, and that to have legislation that stated this truth would enable lawyers to point to a provision that set this out. In response, Nicholas Cusworth QC pointed out that the potential dangers were more to do with litigants in person, who will be on the increase next year due to legal aid changes, and who are likely to misconstrue the legislation as having created a parental right to contact. Stephen Cobb QC also stated that it was likely to create more litigation at a time when legal aid was no longer available. “If it is not going to make any changes to the law, why do it?” he said.
At the conclusion of the session, Caroline Davey stated “the Children Act in my view is a very fine piece of legislation. If there was one message I would want any parent to consider in court is that decisions will only be made in the best interests of the child. That is the only message parents actually should need.”
Attorney General's Closing Address
Chris McWatters reports
In his closing address, Dominic Grieve QC MP, Attorney General, apologised to the audience that he hadn’t been able to attend the majority of the conference “due to typical Saturday commitments”. In particular, he was aware that he had missed Clive Stafford Smith ‘in full flood’ and Mike Turner QC “kebabbing the Government at every turn”. He said it had been an eventful year at the Bar, adding that he did his best to attend Bar Council meetings regularly, and so was “well up on the sorts of difficulties that the Bar is facing. Plenty of friction between the profession and the Government. Plenty of discontent about levels of remuneration. Plenty of anxiety about changes. And all that can be depressing. But, he added, “sometimes I think that there may be a slight danger to always see the glass half empty rather than (sic) full”.
He spent some time discussing the Legal Aid, Sentencing and Punishment of Offenders Act 2010, which will bring about significant changes and reductions to legal aid, and which he acknowledged “for most barristers, makes them feel pretty gloomy”. However he was keen to state that LASPO was not an attack on the Bar. “If it had been,” he stated, “we would not have been successful in persuading the previous Lord Chancellor to respond to the consultation for a single fixed fee for guilty plea cases in protecting the split of the fee into two separate fees for litigation and advocacy”. “But I can’t get away from the fact that my colleagues sitting around the cabinet table are contemplating austerity measures which cut deep into every area of Government.” He pointed out that the legal aid bill is now costing the country £2 billion pounds, and comes out at a cost of £39 per head of the population, with the next most expensive in the world being New Zealand, where the cost is £18 per head. “So those 25 per cent of savings which the MOJ (Ministry of Justice) have to make are simply going to have to be made.” He went on to say “there will no doubt be the opportunity as it (LASPO) kicks in.... in making firm representations where there are areas in which it is not functioning properly”.
Grieve went on to comment about the criminal Bar’s concerns about CPS and its fee structures. “My commitment, along with that of the DPP has been I want to see a mixed economy maintained; that is to say I want to insure that there is a substantial amount of work going to the independent Bar and that there is a recognition from the CPS that it cannot and should not all be brought in house.” He acknowledged that a 5 per cent cut to fees was going to be unwelcome. “ I have to make sure that the CPS lives within its budget,” he stated.
He acknowledged the Bar’s concerns about QASA (the Quality Assurance Scheme for Advocates). Grieve is keen that the Bar should engage with the scheme. “The danger is that if the Bar doesn’t engage then the risk is that the work will simply be farmed out to the advocates of a lesser standard,” he said.
He went on to speak about the Legal Services Board, realising that “there were justifiable concerns that it (LSB) may have turned towards micro management”. He hoped that work could be done so that it could bring much greater latitude to the Bar Standards Board, “which in my opinion is doing a very good job”.
He was full of praise for the new Rolls Building, which he said was a very important development for the Bar. “It should keep London as the absolute centre for commercial litigation.” He went on to say how he keeps telling his colleagues how much of a contribution to the GDP the legal services sector makes - £3.2 billion last year.
He commented on Alternative Business Structures, which he believes “offer long term opportunities to our profession.” He praised the Criminal Bar for embracing the digitalisation of the CPS and the electronic means of sending instructions. He commented on how legal education was a model of how accessibility can be promoted. “The amount of women and ethnic minorities coming to the Bar is in excess of any other profession,” he said. He then spoke about Pro Bono work, and how appreciative the Government is of this. He felt that that Pro Bono work was important in projecting an image of the Bar when entering discussions over future changes.
Finally, he said “My aim is to help the Bar promote themselves within government so there is a greater understanding. I think this year overall was very positive. I want to help in every way I can.”