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HILARY TERM ISSUE www.barristermagazine.com ISSN 1468-926X

Legal services reforms – some unresolved Features

questions
Regulation is an inescapable feature of modern now been enacted.
3 Barristers and Experts

Mark Solon, in The Barrister 21st

December 2009, gave guidance as
society. No longer can any group of service At the same time, it has to be appreciated to practical steps when working with
experts at civil trials. This article will
providers, even a group as ancient and reputable that regulation address some key elements, which
are necessary before the practical
as the Bar of England and Wales, claim to alone, though it steps are reached.

remain exclusively self-regulating. A regulatory may establish By Ben Beaumont, Clarendon

Chambers, FRICS, FCIArb,
framework has to be established so as to ensure a minimum Arbitrator, Mediator

that the public interest is adequately protected standard, is not

in the manner in which barristers provide enough. In the

6 Wake Up, Wake Up

As far as the Bar in England & Wales is

their service. Not even MP’s now claim to be
immune from a statutory system of regulation.
Indeed, recent events concerning MP’s show the
concerned the very structure, from the
end, the only way foundations up, within which business
is done is changing but, to all outward
in which a client Stephen Hockman QC, Head of appearances, the Bar and its constituent
Six Pump Court Chambers chambers do not seem to be responding
can be guaranteed to these changes.

necessity for a statutory framework such as has a good service from his lawyer is if that p.32 By Ian Dodd, Director,
Bar Futures Chambers

8 Legal issues in dementia care:

Incomplete plans to slash advocacy fees the Nuffield Council’s report

When the Nuffield Council on Bioethics

will hit access to justice
The on-going Ministry of Justice and Legal
Services Commission programme of slicing
latest cuts lack clarity, which is worrying when
it will potentially have such a detrimental impact
began an inquiry into the ethical issues
arising in the context of dementia it was
clear that a number of problematic legal
issues would also be raised.
By Jill Peay, Professor of Law,
London School of Economics

chunks off the legal aid budget is now in the on an issue of the highest importance – access

process of reaching into defence advocacy fees. to justice.

The MoJ proposals in its Legal Aid: Funding

Reforms consultation, aim to cut criminal defence
advocacy rates, a move which is of concern to the
Law Society as well as, not surprisingly, the Bar.
News
p.20 New professor of law launches first
The key to taking full account of the likely major study on impact of Asbos on
young offenders
impact of the cuts is to have a detailed impact
p.21 Senior Government Lawyer Joins
assessment. The Society is concerned at the Exchange Chambers

It would be surprising to see a MoJ consultation
proposing increases in rates, given the well-
known budgetary constraints under which they
are operating, but the reasoning behind these
paucity of the impact assessment of the proposals
for cuts to advocacy fees.
The reason given for this is that this is p.10
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 the barrister 03
Barristers and Experts
Mark Solon, in The Barrister 21st December 2009, gave guidance as to practical steps when
working with experts at civil trials. This article will address some key elements, which are
necessary before the practical steps are reached.

By Ben Beaumont, Clarendon Chambers, FRICS, FCIArb, Arbitrator, Mediator

T
here can be no better researched because he considers that 35 is to facilitate more expeditious and

take guidance than insufficient data is available then this must economic justice. To refuse to accept a joint

the seven key duties be stated with an indication that the opinion report when it is the result of acceptance by

and responsibilities is no more than a provisional one. . . the parties is not productive.

set out by Sir Peter

Cresswell in National (6) if after exchange of reports, an expert Expert instructions.

Justice Compania Naviera SA v Prudential witness changes his view on a material There may be only one area where expertise

Assurance Co Ltd ("The Ikarian Reefer") matter, such change of view should be is needed, or there may be more. Parties

[1993] 2 Lloyd's Rep 68. He said that the communicated . . . to the other side without should not be overawed by the fact that in

duties and responsibilities of expert witnesses delay and when appropriate to the court; a complex dispute a variety of experts may

included the following: be necessary. It is for the parties to put their

(7) where expert evidence refers to case to the judge when seeking permission to

'(1) expert evidence presented to the photographs, plans, calculations . . . survey call these experts to sustain the need for their

court should be and should be seen to reports or other similar documents these reports. It may be that some of the reports of

be the independent product of the expert must be provided to the opposite party at the the various experts will be agreed by the other

uninfluenced as to form or content by the same time as the exchange of reports.' side. However, the other parties may decide

exigencies of litigation; to appoint their own experts to dispute some

These duties and responsibilities have now elements of the claimant’s reports. Where

(2) an expert witness should provide been incorporated in Practice Direction 35. there is continuing disagreement the court

independent assistance to the court by way will order the experts to meet and attempt

of objective unbiased opinion in relation to I want to touch on the following areas of to agree. With experts of experience and

matters within his expertise . . . An expert importance in a dispute requiring expertise: confidence very often there will be agreement

witness in the High Court should never joint reports; expert instructions; expert as to a very large extent of the matters in

assume the role of advocate; qualifications and education; video assistance dispute. Two or three key matters may be

for experts; and finally who instructs the left to be disputed. In that event, it would

(3) an expert witness should state the facts or experts, solicitor or counsel. be unfortunate if any joint expert were to be

assumptions on which his opinion is based. ordered to replace the two disputing experts.

He should not omit to consider material facts Joint reports It would be preferable for the court to hear

which detract from his concluded opinion. . . While it is right to say that judges do not have the evidence on the issues where the experts

to accept expert evidence even where it is disagree and come to a view itself.

(4) an expert witness should make it clear given by a court-appointed joint expert it will Expert qualifications and education

when a particular question or issue falls be an unwise judge who ignores the report

outside his expertise; and evidence of the joint expert, preferring Many experts will be recommended to parties

his own expertise to that of the appointed or known to parties. Other experts will be

(5) if an expert's opinion is not properly expert. The whole point of Practice Direction unknown to the parties. Who so ever these
 04 the barrister
experts are they will not be afraid of producing
originals or certified true copies of all their
qualifications. Parties should be aware that
there are experts with considerable court
experience, who has been eventually found to
have little or no qualification. The time taken
to verify qualifications is well spent. If the
expert is too proud or embarrassed to comply
willingly with the request the party has the
wrong expert.
Video assistance.
It has proved very worthwhile whether
the expert is of 20 years experience or 2
weeks for the party to invite the expert for a
confidence building meeting. At that meeting
the instructing solicitor will ask the expert to
answer two or three questions as if at a trial
and view the result, which has been recorded
by videotape. The only persons present will
be the expert and instructing solicitors, or
sometimes counsel. It is then that personal
projection, mannerisms and other matters
which can detract from the image of an
otherwise perfect expert can be identified.
A simple example was an expert, whose
evidence cost $1 million in preparation came
to trial and chewed gum throughout the trial,
much to the intense irritation of the trial
judge.
Instructions to experts.
Frequently a client will be certain as to what
expertise will be necessary. Solicitors will
act upon that certainty and appoint expert or
experts accordingly. As the case develops it
may well be the case that the appointed expert
discovers that an area expertise has moved
away from his own. It is recommended that
solicitors appoint expert advisers from the
outset. These expert advisers may or may
not become the appointed experts. However,
The barrister magazine
they assist the solicitors to focus upon the
cannot accept responsibility
areas of expertise that either are immediately for information supplied
second to none.
apparent or will become apparent. Although by other parties, views
expressed may not
there is an initial increase in cost by reason of
necessarily be that of
this appointment the subsequent cost savings the editor or publishers.
as well as increase in confidence by reason
of knowledge that the litigation team are
focusing on the right issues are more than
counterbalanced. On this point, it may well
follow that when counsel is appointed he and
the expert or experts may identify different
aspects of the issues in dispute, which need
expert opinion. This is another reason, where
possible, to appoint counsel at the earliest
possible opportunity to gain substantial cost
saving benefits in the long run as balanced
against the initial brief fee.
Ben Beaumont, Clarendon Chambers FRICS,
FCIArb, Arbitrator, Mediator
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www.barristermagazine.com
 06 the barrister
Wake Up, Wake Up
As far as the Bar in England & Wales is concerned the very structure, from the foundations
up, within which business is done is changing but, to all outward appearances, the Bar and its
constituent chambers do not seem to be responding to these changes.
By Ian Dodd, Director, Bar Futures Chambers
T
he Legal Services Act has significant problems and they are all to do
laid out the landscape with the lack of money. There may be rear-
for the legal profession guard actions by the Bar which might make
and allows ingenuity the cuts in fees more palatable but the plain
and entrepreneurial fact is that cuts are here to stay and will
adventure wide scope. A deepen. Whichever government is in charge
few chambers are rising to the challenge and the pleas of the Bar will go largely unheard
new initiatives and markets, some overseas, as the gaping chasm in the nation’s finances
are being explored with commendable and the ever-growing National Debt cannot
vigour. Most, though, seem to have missed be ignored. With the prospects of a 20%
the advent of the LSA, failed to realise its VAT rate, more and more taxpayer’s money
potential and consequences and have slipped required to improve basic services and all the
back into a light torpor hoping that it will all other more urgent calls on the public purse
just go away. the chances for improvements in fees looks
bleak. Any utterances from the Conservative
The bad news is that it won’t and those who party to right the wrongs need to be regarded
think it will could be lost as other providers as election promises and treated with care
of advocacy and services hitherto associated and suspicion.
with the Bar are planning to take over. The
good news is that there are tremendous
opportunities for the Bar to forge new and
durable links with clients, find new markets The Bar’s main client base, solicitors, have
and income streams and create a profitable gone through a bad time and the survivors
future. will emerge leaner, meaner and determined
to get more value for money. The growth
Well before the current economic problems of some solicitor’s firms in the past few
commercial financial pressures were growing years has seemed unstoppable and even the
but some businesses chose to disregard them. smaller players were taking on the expensive
Those in charge of publicly funded work did trappings and staff levels of some of the Magic
react quickly, though, and the reduction in Circle. As hard times bit many seemed not to
fees for family and crime work began long appreciate the possible depth and length of
before Lehman Brothers catapulted world the recession and planned only for the near
economies into free-fall future and failed to take the opportunity to
redesign their businesses for the aftermath.
Even the slightest acquaintance with the Consequently, some are suffering death by
Bar’s client base reveals systemic and a thousand cuts and, having taken the easy
the barrister 07
bringing cash into the firm? The Bar needs go nowhere near the fundamental reforms this fully yet and that no chambers has
to be alongside its clients as this happens and which are required to enable The Bar to installed this useful arrangement. Whilst
contribute positively and constructively. compete with and work alongside its solicitor many chambers have recruited experienced
The regulatory regime for the Bar looks clients. Barrister only partnerships (BoPs) business managers with backgrounds other
set to be overhauled and there needs to are restrictive and discriminatory and the than the Bar there is the risk that these will
be some determination and urgency about signal failure to address the management be a wasted asset unless they are given the
the considerable reforms required to the training and experience needs required to authority to go with their responsibilities.
way the Bar is regulated if barristers are to ensure that barristers are fit to be managers Seemingly, one such recruit recently resigned
be empowered to compete with those who of LDPs is staggering. The recently published after a short period as a chambers CEO
savings, cutting support staff, marketing, would do their work for them. A modern Bar Training Regulations comprehensively saying, “I didn’t get an MBA to be a janitor”.
training and bonuses and putting pressure code of conduct and more flexible approach and definitively covers all the professional
on suppliers’ prices, then had to move into to the way chambers are structured and how requirements but there is, as yet, no Ian Dodd, Director,
losing fee-earners in areas where worked they can best deal with clients are needed companion publication on commercial and Bar Futures Chambers 3rd Floor
had collapsed, conveyancing, property etc, to allow forward-looking chambers to take business matters. 5 New York Street
then into making savings in core areas like advantage of the opportunities presented Manchester
salaries, paying commission only, losing good by the LSA. The BSB recently announced The LSA allows for a Head of Legal M1 4JB
fee-earners etc. When all that proved not to that they had accepted the recommendations Practice (HoLP) and a Head of Finance and DX:709046 Manchester 7
have worked those partners who had, for of their ABS Working Group concerning Administration (HoFA) to run chambers in
good corporate reason, left their own client barristers and Partnerships. Welcome, even a professional and business like way. It is
base behind and couldn’t support themselves though they were delayed, as these are, they significant that the BSB have not addressed
on their own fee income came in for a culling.
The legal press has carefully catalogued all of
this and also the demise of those solicitor’s
firms for whom it was all too late. This may
not be the deepest recession the UK has
suffered but it’s been the best reported.
All these pressures will, if they haven’t
already, work through to barristers’ fees and,
unless fees are set or capped, clients will be
looking to save money from their work with
the Bar.
Additionally, many major solicitors’ firms
are refining their money-saving general
business process outsourcing (BPO) activity
to more specific legal process outsourcing
(LPO) solutions. Whilst these are, currently,
restricted to things like secretarial, research,
file preparation tasks etc more solicitors will
sign up and begin to move their LPO search
up the complexity/value chain. How long
might it be before advocacy work becomes
an outsourced activity as solicitors’ fee-
earners relinquish jobs that aren’t core to
 08 the barrister the barrister 09
Legal issues in dementia care:
future care, we suggest this is best achieved guidance available. We recommended that being ‘like a non-person’. Dementia needs
with early planning and that such plans the Office of the Public Guardian work to become an accepted, visible part of our

the Nuffield Council’s report should be reviewed regularly.
Welfare attorneys
When the Nuffield Council on Bioethics began an inquiry into the ethical issues arising in the Lasting powers of attorney enable people to
choose others to act on their behalf either in
context of dementia it was clear that a number of problematic legal issues would also be raised. respect of their property and financial affairs
or in relation to their health and welfare.
By Jill Peay, Professor of Law, London School of Economics The report acknowledged the advantages
of individuals appointing someone to make
together with the Department of Health to
produce such guidance; and that the UK
Health Departments generally should draw
attention to the importance of providing
support to carers to obviate the need for the
use of restraint.
Regulations governing restraint in care
homes make clear that it is only to be
society, and people with dementia should
be enabled to take part in the activities they
enjoy.
Service providers such as shops, leisure
facilities and restaurants have a legal duty
under the Disability Discrimination Act
1995 to make ‘reasonable adjustments’ to
enable people with dementia to use their

W
hilst the Mental
Capacity Act 2005
has been widely
welcxomed by
those working in
the field, it was
evident that areas remained where extra
guidance would be helpful, particularly for
those working day-to-day in caring for people
with dementia.
The Council set up a Working Party, chaired
by Professor Tony Hope, Professor of Medical
Ethics at the University of Oxford, in 2007.
The Working Party, of which I was a member,
included medical experts in dementia, but
also drew on other relevant expertise, so
as to consider the ethical, legal and social
issues. To inform our deliberations we held a
public consultation and spoke to people with
direct experience of living with dementia and
those working in the field. The response the
Council received from the public during this
process was unprecedented, confirming our
view that dementia is an issue that causes
real ethical dilemmas for those involved
in care. The Working Party’s conclusions
were published on 1st October 2009 in the
report Dementia: ethical issues.1 The report
makes policy recommendations in a number
of areas, including diagnosis, access to care,
tackling stigma, and providing support for
carers. This brief article summarises the
Council’s conclusions in relation to mental
capacity and disability discrimination
legislation.
Making decisions
Joint decision making
The Mental Capacity Act (MCA) sets out
how a decision can be made if a person is
not able to make that particular decision
for themselves. It must, however, always be
assumed that a person does have capacity to
make a decision, until it is shown that they
can’t. In many cases it will be clear whether
a person with dementia does or does not
have the capacity to make a particular
decision. However, there will be times when
the person’s ability to make a particular
decision will be difficult to determine. The
implications of this are significant: for if
people are assessed as having capacity they
will be free to choose their own course
of action, whereas if they are assessed as
lacking capacity they become subject to the
MCA and decisions will be made for them,
albeit those decisions must be considered to
be in their best interests.
Problems, of course, remain with the issue
of borderline capacity. To avoid, or at least
reduce, these the Working Party concluded
that greater emphasis should be put on joint
decision making with trusted family members.
In practice, few of us make decisions without
consulting others or seeking out relevant
information. In this sense ‘autonomous’
decision-making is rarely done in isolation:
decisions are supported by those close to
us and in the light of those relationships.
And the MCA recognises this insofar as it
requires both consultation with others, and
that everything should be done by way of
assistance to enable individuals to take their
own decisions. Our report recommended
that the Code of Practice made under the
MCA should be amended to emphasise the
importance of good communication and
supportive relationships with families, so
that joint decision-making is encouraged
wherever appropriate.
Past and present wishes
When deciding what course of action is in
a person’s ‘best interests’, both their past
wishes and feelings and their wishes and
feelings now must be taken into account.
However, sometimes past and present wishes
may be quite different. Both are an expression
of a person’s autonomy and neither can
automatically take precedence.
We concluded extra guidance was needed in
the Code of Practice on how past and present
wishes and preferences should be taken into
account where these appear to conflict. The
relative strength of the person’s wishes, the
degree of importance of the decision, and the
amount of distress being caused should all be
important factors to consider.
Advance decisions and advance care
planning
The MCA makes specific provision for
people to make ‘advance decisions’ to refuse
treatment, even if that treatment may be
life-saving. It is right for the law to allow
people to make an advance decision to refuse
treatment if they wish to do so. However,
an advance refusal of treatment may not
always work in the way the person expected.
We therefore welcomed the recent NHS
guidance2 that provides a model advance
refusal form and suggests a number of
helpful safeguards. We were also concerned
about the uncertain legal position that could
arise where a person acted inconsistently
with their advance decision once capacity
had been lost: we recommended that the
Department of Health act urgently to clarify
this with additional guidance in the Code of
Practice.
In end of life care, the term ‘advance care
planning’ is used for a broader approach
to future planning. As well as the kind of
medical treatment the person would want, or
not want, an advance care plan may include
their wishes about particular likes and
dislikes, where they would like to be when
they are dying, and who they would most
want to be with them. Where individuals
wish to make such decisions about their
decisions about their future care, since such
arrangements can be sufficiently flexible to
take account of changing circumstances,
something that an advance refusal
treatment might find problematic. Appointing
a welfare attorney can be a good way for
people to plan for a time in the future when
they cannot make decisions themselves, and
a way in which autonomy can be enhanced.
There are concerns, however, that some
people may find it too expensive
complicated to nominate a welfare attorney.
In principle, we believed that the process
of appointing a welfare attorney should be
free of charge, and that where people are
first diagnosed with dementia, there should
be a mechanism actively to support them in
nominating a welfare attorney if they wish so
to do. We also recommended that the Office
of the Public Guardian should be monitoring
whether the current practical arrangements
are hindering those who might otherwise
wish to appoint such an attorney.
Using restraint
Being restrained in the absence of consent can
be distressing and demeaning: and restraint
can come in a number of forms, including the
use of medicines and ‘innovative’ strategies
such as leaving a person in a low seat that
they cannot get out of without help. Whilst
it may be legal for a person to be restrained
if this would prevent harm either to the
person or others, such restraint needs to
be a proportionate response to the harm
envisaged, and there is insufficient guidance
in England and Wales on what would
constitute a proportionate response.
Carers, in particular, may find that a lack of
outside help can leave them little choice but
to restrain the person for whom they care,
in order to get on with essential household
tasks. This can cause anxiety to both the
carer and the person with dementia, an
anxiety that might be allayed were better
used on an exceptional basis. The Mental services. Often they may not realise this.
Welfare Commission for Scotland has issued Moreover, under the amendments made to
detailed practical guidance on what this ‘last the Act in 2005, public bodies, such as the
of resort’ use of restraint might entail and we NHS and local authorities, have a general
recommended that such advice be made duty to promote equality of opportunity
available to all those working in care homes, between disabled and other persons. We
particularly since the evidence suggests that recommended that the Equality and Human
restraint is widely used in practice. Rights Commission should highlight these
legal duties to ensure people with dementia
are not subject to unjustifiable discrimination.
Confidentiality
Indeed, relatively minor adjustments could
The MCA Code of Practice stipulates that
or do much to make services more accessible
health and social care staff should only
to people with dementia, such as clearer
disclose information about somebody who
signage, strong lighting, and an increase in
lacks capacity if it is in the best interests
staff awareness of dementia.
of the person concerned to do so. The
Code of Practice also suggests that carers
In conclusion, law and ethics manifestly
should not normally need to receive such
intersect in the area of dementia care. Yet
information from professionals as they will
greater clarification of how the law should
already have their own knowledge of the
be applied by those who juggle with the day-
person to guide their decisions. The Code
to-day dilemmas entailed in such care could
therefore appears to place an emphasis on
both alleviate carers’ anxieties and promote
withholding information, rather than sharing
autonomous decision-making by those with
it, and fails to focus on why carers could
dementia.
need information. In contrast, the Scottish
Code of Practice for professionals simply
Jill Peay was a member of the Nuffield Council
notes that it will be necessary to consider
on Bioethics’ Working Party on dementia.
the adult’s right to confidentiality and any
For more information and the Council’s
previously expressed wishes about disclosure
conclusions in full, see:
of information, reflecting a more nuanced
www.nuffieldbioethics.org/dementia
approach.
1 Nuffield Council on Bioethics (2009)
We think that the guidance in the MCA
Dementia: ethical issues (London: Nuffield
Code of Practice on when it will be in a
Council on Bioethics). Available at: www.
person’s best interests to share information
nuffieldbioethics.org/dementia
is too restrictive. We recommended that
2 NHS End of Life Care Programme and
the requisite professional bodies should
National Council for Palliative Care (2008)
reconsider this guidance and give greater
Advance Decisions to Refuse Treatment: A
weight to the legitimate reasons why sharing
guide for health and social care professionals
may be necessary to enable carers properly
(Leicester: NHS End of Life Care Programme;
to care for their loved ones.
London: National Council for Palliative Care).
Including people with dementia in
society
Dementia still carries a stigma. We heard
one person describe having dementia as
 10 the barrister the barrister 11
the first of a two-stage consultation, order to ensure a continued supplier base of to what the Ministry concludes, this does Most worryingly, it found that only 48 per
p.1
and that the detailed rates, together sufficient quality – an argument, incidentally, not mean that the fees are acceptable or cent of solicitors’ firms said they were likely

with a full impact assessment, will that applied equally to solicitors’ fees, but sustainable. to be conducting legal aid in five years time.

be provided in a second consultation. was not accepted in respect of our side of the The reasons given by firms proposing to pull

profession. Many practitioners work in mixed practices, out included unprofitability, the prospect of

However, we feel that an initial impact meaning better paid work subsidises the tendering and retirement.

assessment should have been undertaken at The conclusion that prosecution fees must less profitable, but this, together with the

this stage, to assist the Ministry in deciding be acceptable because advocates continue cab rank rule, also often makes it difficult to Therefore the future of criminal legal services

whether or not to continue with the proposals, to undertake the work is simplistic and decline prosecution work. is already at risk, adding to it with the current

and in determining how to moderate them to illogical. Prosecution advocates do not work proposals will only create a shortfall in this

mitigate any adverse impacts that may be in the same way as defence advocates; The Ministry has accepted that advocacy area of service provision.

identified. many of them are employed as ‘in-house’ costs have been brought under control by the

advocates, and the way in which preparation AGFS, and it is therefore unclear what has

The prime basis put forward for reducing is undertaken by the defence and prosecution now changed which would require further The Society will continue to put the interests

advocacy fees is that the Crown Prosecution is very different. drastic cuts. If the Ministry needs to introduce of legal aid solicitors and the overarching

Service has been working to fees that are less new cuts to address its budgetary constraints, issue of ensuring access to justice first and

than defence fees. The prosecution often have the benefit of a we would have thought that there were other encourage the MoJ and LSC to work with us

whole team working on one case, compared targets that could be looked at first. to address the problems faced by the criminal

There is an attempt to justify this with to the defence who may only have one or two defence services sector as highlighted in the

reference to concerns expressed by the lawyers. The Law Society does not therefore Cuts to defence advocacy fees risk dealing NAO report. We would urge the Ministry to

Criminal Bar Association at ‘the marked accept it as proven that this is a ‘like for like’ another blow to access to justice. We are look again to find ways to mitigate the impact

discrepancy’ between prosecution and comparison. fighting against the introduction of best value of these proposed cuts.

defence fees. We understand from the Bar tendering for criminal legal aid contracts and

Council however that this concern was in fact We also understand that far from finding a range of other plans which look to control Desmond Hudson is Chief Executive of the

raised with regard to the fact that prosecution the current fees viable, CPS advocates have the legal aid budget by attacking fees, rather Law Society

fees were too low, and that these should be in fact been ‘hanging on’ in the reasonable than by addressing the true drivers of costs

raised to bring them into line with defence expectation following the Carter review that – new laws, new processes and increased

fees – not the other way round. their fees would be negotiated up to bring volumes of cases as a result of the recession.

them into line with the levels in the Advocates The National Audit Office recently published

The discrepancy arose when Lord Carter, Graduated Fee Scheme (AGFS). details of their review into value for money

whose brief did not include prosecution fees, into criminal defence services, which

advised Ministers that defence advocacy There are numerous ways in which both revealed a Legal Services Commission which

fees needed to be increased to take account defence and prosecution lawyers can manage has little understanding of its suppliers (law

of inflation over the many years since the to continue to work within a fee regime that firms) and a poor record in trying to manage

previous time the fees had been increased, in does not pay at reasonable levels. Contrary change.
 12 the barrister
Locked up and locked out: Revealing the shocking
programmes do not have the listening
and speaking skills that the programmes
demand3.
facts about offenders with communication disability
• Studies have shown that around
35% of offenders have speaking and listening
By Jane Mackenzie, Policy Officer, Royal College of Speech and Language Therapists (RCSLT) skills below level 1 of the National Curriculum.
of speech and language disorders amongst
young people in custody. It recognises
the importance of the current speech and
language research that demonstrates the
impact of such a service on young men whilst
in custody. They will use the outcomes of
the study in an attempt to influence possible
the barrister 13
therapists, reflecting their specialist skills
in enabling effective communication to take
place within the court process.
In order to raise awareness and bring about
change, the RCSLT has recently established
a Children’s Communication Coalition (CCC)

T
he National Association
Probation Officers (NAPO)
recently released the
results of a study carried
out with support from the
Royal College of Speech
and Language Therapists (RCSLT) which
highlights the urgent need to address the
poor communication skills of offenders.
NAPO’s findings reveal that the vast majority
of those on probation or parole supervision
have low educational attainment, learning
difficulties, problems expressing themselves
or even understanding what is being said to
them.
As a barrister, or other legal professional, do
you sometimes notice that clients or witnesses
seem to have communication difficulties? In
fact, a large number of people of all ages who
are in contact with criminal justice services
have significant communication difficulties.
This article will explain why this is, and will
outline how various approaches, especially
speech and language therapy, can assist
these disadvantaged individuals.
We all recognise that there are complex
reasons, including health, social and
emotional factors, why some people are born
disadvantaged.
Born primed to fail.
One area which has been neglected until
recently is the strong relationship between
communication disability and offending
behaviour. This may largely be due to the
fact that this is a hidden disability, but it is
one which has a massive impact on all other
areas of development and emotional well-
being.
The Bercow Review1 stressed the fact that
the ability to communicate is a basic human
right , which is sadly often not recognised as
being such.
“The ability to communicate is an essential
life skill for all children and young people
and it underpins a child’s social, emotional
and educational development. Evidence
illustrates that there is insufficient
understanding of the centrality of speech,
language and communication among policy
makers and commissioners nationally and
locally, professionals and service providers,
and sometimes parents and families
themselves. It follows that insufficient priority
is attached to addressing speech, language
and communication needs.”
Communication disability includes speech
and language difficulties. It is the underlying
and most pervasive feature of many disorders
such as autism, dyslexia, learning difficulty,
learning disability and challenging behaviour
Up to 10% of young children in society have a
communication disability.
Shockingly, this figure leaps to over 60% of
children and young people in contact with
youth justice services in England, having
communication difficulties2. This mirrors
international evidence from Australia, the
USA and Canada showing similar levels of
difficulty within each county.
There is no doubt that this figure is even
higher with adults who offend.
At Rampton high security hospital the
well established speech and language
therapy team screen all new patients for
communication disability. They report:
“The vast majority have persistent
communication needs which haven’t
previously been identified or addressed”
As a society we need to ask ourselves
why do offenders have such high levels of
communication disability, and why has it
not been previously identified and diagnosed
earlier in their lives?
One of the most significant factors in
predicting future disadvantage and antisocial
behaviour in young children is a delay in
developing communication skills. It may
surprise you to hear that communication
disorder is the most common disability seen
in childhood.
By this I mean children with poor vocabulary,
who are slow in starting to speak, often with
This is equivalent to that of five year old child. further developments in this area.” which brings together national organisations,
experts and service users who are speaking
a short attention span. Children who find
I’d also like to draw your attention to the fact • Bradford youth offending team: out for children with communication
it difficult to concentrate and remember
that communication disability can present October last year, a 6-month pilot project disability in the justice pathway. We are
information and may have problems in
as disruptive anti-social behaviour. The was completed which examined the speech working with the government to seek for the
understanding what is said to them.
following case study illustrates this: and language needs of their clients. Their following changes within the justice system.
conclusions found that:
These are the very basic foundation skills
In Red Bank secure children’s home, five out • Put in place an holistic
needed by children when they start school in
of seven young offenders in one section had a Over 74% of the case load had communication communication screening for all pre-school
order to enable them to learn, read, write and
learning difficulty and challenging behaviour, disability. children in order to identify these vulnerable
socialise.
all had a communication disability. Staff children early on and provide the support
were involved in physically restraining these Their communication disability was nearly they need;
We know that communication disability is
young offenders on two to three occasions always undiagnosed, and both the young
much more common amongst pre-school
every day. After receiving communication people and the staff were unaware of the • Develop a communication screening
children from disadvantaged backgrounds,
training and guidance from the speech and difficulties and how to address them. process for children on entering the justice
as high as 55% in some areas.
language therapist, the staff were able to pathway in order to identify these vulnerable
reduce the number of restraints used to two YOT staff recognised a need for the children at the earliest point possible and
Research shows that a third of children with
per week. This example of a positive practical assessment and intervention with clients provide the specialist support they need;
enduring speech and language difficulties
intervention has been repeated many times with a communication disability, but lacked
will go on to develop mental health problems.
throughout Red Bank. the confidence in doing this. • Provide communication skills
Studies show that they are also at higher risk
training for everyone working with children
of school failure and associated antisocial
So the use of targeted therapy, delivered by Speech and Language Therapists are uniquely who offend;
behaviour, which can lead to truancy and
speech and language therapists can rapidly trained to assess communication skills,
exclusion from school and with resulting
make a significant, measurable difference diagnose language difficulties and design • RCSLT model of service delivery of
criminal involvement in over half of cases.
both to the vulnerable young person, and the therapy programmes. They are able to work speech and language therapy services within
staff working with them. directly with individuals and indirectly with the Justice Pathway should be adopted.
The reality is that too many children fall
other staff to create a better communication
through the net, their needs are not identified
International evidence demonstrates the environment. I would be delighted to hear from anyone
early enough, and therefore they don’t receive
benefit of speech and language therapy with reading this article who would like to get
the intervention they so desperately need.
this group of vulnerable children. Their added value is acknowledged wherever involved with the work of the CCC. Please
they work along the justice pathway, and one contact me for information on how we can
Further along the pathway, the screening
• Improving literacy and social of their crucial contributions is in designing work together to improve the life chances of
and identification of these children once they
skills is essential to reducing re-offending. and delivering communication skills training children with communication difficulties.
come into contact with the justice system
Research shows that speech and language for all justice staff, tailored to meet local
would enable targeted help to be given for
therapy targeted at improving the language needs.
both the child and the team working with
skills of individuals can significantly reduce The RCSLT is currently supporting the 1 Dec 2008
them. Sadly this does not happen.
the number of them who go on to offend5. development of a national training package, 2 Bryan et al
based on the experience and expertise 3 Learning and Skills Research Centre for the
Communication disability has a profound
• Polmont YOI in Scotland: SLT of expert forensic speech and language Prison Service
impact on the individual’s ability to benefit
intervention was shown to enable offenders therapists. 4 Snow and Powell Developmental Language
from, and indeed cope with, the prison
to engage with educational and training This training will provide an excellent Disorders and Adolescent Risk Current Issues
regime. It is very difficult for people with
provision offered by the Prison Service opportunity for justice professionals to in Criminal Justice 16(2) Australia (2004)
a communication disability to access
once their ability to communicate had been improve their communication skills in a 5 Hamilton 1999
educational and rehabilitation programmes
improved . targeted and appropriate way.
or to cope with a regime that relies heavily
In 1999, The Youth Justice and Criminal
on information presented in a written form
• Brinsford YOI and Werrington Evidence Act provided for a number of
which is beyond their capacity to understand.
juvenile centre: Two-year research project measures to assist vulnerable or intimidated
was carried out in 2004, led by Professor witnesses to give their best evidence in court,
• Over 60% of young offenders do
Karen Bryan SLT, University of Surrey, to including provision for the examination
not have sufficient verbal skills to cope with
measure the need for and benefit of SLT. of a witness to be conducted through an
the regime or to benefit from education and
intermediary approved by the court.
rehabilitation programmes because of their
The Prison health service concluded: This paved the way for the successful
poor language and literacy skills.
Witness Intermediary Scheme, which has
"Through Professor Bryans' previous work now been rolled out nationally. Over 80%
• Over three quarters of all those
Prison Health is aware of the high prevalence of intermediaries are speech and language
taking part in enhanced thinking skills
 14 the barrister
Although the Ministry of Justice has spent the
last two years reviewing homicide law, there still
remains a serious problem around “one-punch
killers” which means punishment for bad luck,
according to Barry Mitchell, Professor of Criminal Law and Criminal Justice,
Coventry University Law School
N
early three years ago
the government set
up a review of the
homicide law following a
recommendation by the
Law Commission in its
report on Partial Defences to Murder (Law
Com No. 290, 2004, London: TSO, at para.
1.12). The vast majority of the debate since
then has focussed on the more serious cases
– how murder should be defined and what
partial defences which would reduce the
offence to manslaughter should be recognised
by the law, though the Law Commission
did acknowledge that there should be “a
limited review of the law on involuntary
manslaughter”. The Coroners and Justice Bill
currently being debated in the House of Lords
would amend the law on provocation and (to
a lesser extent) diminished responsibility, but
consideration of offences at the bottom end of
the spectrum is deafening by its silence. The
government has said nothing on the subject
since its brief paper in 2000, (Reforming
the Law on Involuntary Manslaughter: The
Government’s Proposals, London: TSO) and
it is understood there are no plans to review
any other parts of the homicide law.
The problem of the one-punch killer
One of the criticisms the writer and others
have of the current law is that it makes
it too easy for a person to be convicted of
manslaughter, essentially because the law
pitches the minimum level of culpability too
low. A typical example of this is what's often
called a one-punch manslaughter. A punches
B once in the face. B stumbles over a crease
in the carpet on which he was standing, hits
his head against the wall, fracturing his skull
and he dies. A is guilty of manslaughter by an
unlawful and dangerous act. Such cases are
not unduly rare – the writer has just completed
a survey of 127 manslaughter cases since
1995 and there were at least two cases where
the only violence consisted of a single punch,
(as well as a small group of other cases where
the fatal assault was a punch to the head or
face). Whilst there's no doubt that A should
not have punched B in the face, B's death was
extremely unlikely - no-one would expect B to
suffer anything more than a bruise or slight
cut. No serious injury is foreseeable, let alone
death. The element of luck is so great that
many criminal lawyers are unhappy about
holding A criminally liable and punishing
him for killing B. A does not deserve to be
treated as a manslayer.
In favour of the present position, it is said
that we cannot entirely control the outcome
of our actions and thus must recognise the
possibility that something unexpected might
occur. The fact that A threw a punch means
he effectively crossed a moral threshold and
cannot complain when he is held criminally
liable for the consequences. Moreover, whilst
we would not normally expect a single
punch to result in the victim’s death, we are
subconsciously aware that the unexpected
does occasionally happen. On the other hand,
the main argument against the existing law is
that although a moral threshold was crossed,
there is still the problem of the significant gap
between what was foreseen or foreseeable
(namely some relatively minor injury), and
what the puncher is held liable for (namely
causing death). Furthermore, there is
the quite separate argument against the
current law, that the offence of involuntary
manslaughter is being stretched too far. At
the upper end of the spectrum there are those
who only just avoid a murder conviction –
cases such as Hyam, where the defendant set
fire to a house knowing that death or serious
harm to any occupants was highly probable,
would now be treated as examples of reckless
manslaughter. Is it really justifiable to treat
one-punch killers as guilty of precisely the
same offence? The reckless manslayer
displays a far higher level of moral blame
for killing his victim. Of course, the sentence
for the one-punch killer will be more lenient,
but that misses the point: he should not be
formally and publically labelled in the same
way.
Obviously, the precise circumstances of a
homicide will vary from one case to another,
and some activities are inherently much
more dangerous than others. Compare,
for example, driving – which is invariably
a potentially fatal activity – with punching
someone in the face. Even one-punch cases
will differ from one another in this respect.
The precise degree of risk – the degree of
dangerousness – will fluctuate from one
instance to the next. It may be possible
for experts to provide an arithmetical
calculation of the likelihood that in a given
set of circumstances someone would die,
but it would be profoundly unsatisfactory to
identify a particular statistical probability
as representing the boundary between
what was and was not legally acceptable.
Any such figure would be wholly arbitrary
and thus indefensible. In deciding whether
a defendant should be criminally liable for
killing another, we should look at the nature
of the risk created by what the defendant
did and the victim’s death. Only if the gap
between the two is sufficiently close might
liability be merited.
What should be the bottom line
manslaughter?
In deciding how close it should be, one of our
most eminent criminal lawyers, Professor
Andrew Ashworth (Oxford University),
recently argued that the defendant should, as
a minimum, be aware of the risk of causing
serious harm, albeit not necessarily fatal harm,
(see “’Manslaughter’: Generic or Nominate
Offences?”, in C.M.V.Clarkson and Sally
Cunningham (eds) Criminal Liability for Non-
aggressive Death (2008) Aldershot: Ashgate,
chapter 11). That would create a symmetry
between murder and manslaughter – murder
only requires an intent to cause (non-fatal)
serious injury, and it seems that will still be
true after the government has completed
its review of the homicide law. Professor
the barrister 15
Ashworth’s suggestion would also recognise hand, wraps up the criminality in a single a bridge which struck a train as it passed
that we do not have complete control over word, merging the defendant’s act with the beneath and killed the guard (DPP –v-
the outcomes of our actions, that there is ultimate consequence and that fails to reflect Newbury and Jones [1977] AC 500). There
almost inevitably an element of luck as to the the true limitations of the defendant’s moral is no material distinction between throwing
precise consequences of what we do, as well culpability. stones at windows (or trains) which result in
as bringing a sense of proportion between the death and throwing a punch at a person, with
risk and the ultimate outcome for which the A final suggestion the same outcome.
defendant is held liable. But the gap between
what was foreseen or foreseeable and the In the writer’s view this proposal is a step If therefore, the prevailing wisdom is that it is
victim’s death would obviously be reduced. in the right direction, but it is unnecessarily right to convict the one-punch killer of some
Clearly, many one-punch killers would not and unjustifiably narrow. Some academics sort of homicide offence (rather than just
foresee a risk of serious harm, some might. have argued that it is right to convict one- the common assault which the single punch
Consider a very sober defendant and very punch killers of manslaughter because the would normally constitute), then it should be
inebriated victim. The defendant throws a punch is of the same family of wrongs as of committing “an unlawful and dangerous
single forceful punch at the victim who is causing death, namely they are both crimes act causing death”. The adjective “dangerous”
overtly unsteady on his feet and off balance. against the person. But whilst that is true, here would mean that the defendant’s act
The victim falls heavily backwards, cracking its significance is purely descriptive: there is created a risk of causing serious, though not
his head against a brick wall, fracturing his no significance in the similarity of a punch necessarily fatal, injury. Conviction should
skull, and he dies shortly afterwards. In those and causing death to the defendant’s moral also depend on the defendant being aware of
circumstances it would not be reasonable culpability. The justification for holding the the risk when he throws the punch. The gap
for a jury to infer that the defendant knew defendant liable for killing the victim is that between what was foreseen and the harm
that the victim might be seriously injured. he should not have thrown the punch because for which the defendant is held criminally
The chances of causing serious harm might of the risks it created. A defensible argument liable would be much less than the law
not be that high, but the defendant might be for holding the one-punch killer criminally currently allows, but the moral basis and
aware, at least subconsciously, of the risk liable for killing must surely be founded on thus the rationale for this offence would be
nonetheless. moral blameworthiness, and not simply on considerably stronger.
an (albeit understandably) emotional reaction
The Irish Solution to the fact that someone has been unlawfully
killed. Throwing
In a relatively recent report, the Irish Law a punch creates
Reform Commission shared the writer’s a risk – a risk
reluctance to treat all one-punch killers as which is likely to
manslayers and suggested a new crime cause relatively
be created for these cases called "assault minor injury but Your home is an individual expression of yourself and
Creating the way you live. Conquest can enhance your study,
causing death"; (see Irish Law Reform one which, as we office, kitchen, living room or bedroom so that it
the perfectly reflects the ‘true you’. We’ve been providing
Commission, Homicide: Murder and know, might in perfect
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Involuntary Manslaughter, [ LRC 87 – 2008] exceptional cases, home over 4 decades and our reputation for customer
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puncher should not have thrown the punch more serious
in the first place, the Commission was harm. But the
concerned that ordinary people would not point is that such
for
want to put him in the same category as a risk might arise
other, more deserving, manslayers. In this from other forms
respect the Commission were supported by a of seemingly minor
small-scale study the writer conducted in this wrongdoing; it is
country about ten years ago; (see “Further not confined to
Evidence of the Relationship Between Legal minor assaults
and Public Opinion on the Law of Homicide” against the
[2000] Criminal Law Review 814 at 819, person. Thus, an
820). At the same time the Commission act of criminal
thought that people would want the fact that damage such as
someone had been killed to be reflected in the throwing a stone
offence. Substituting a conviction for assault at a window might
causing death would obviously separate out create the same
the one-punch killers from more serious kind and level of
cases, and structuring the new offence in this risk – recall the
way would show much more accurately and two teenage boys
precisely what the defendant had done – he who pushed a
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 16 the barrister
After the War on Drugs: Blueprint for Regulation
safer products, safer behaviours, and safer
using environments – the precise opposite of
what has happened under prohibition.
“If you have had a policy in place for half a century and all it has done is increase the number of Five basic models are proposed; medical
drug addicts and the number of tribes associated with drugs, then it’s time to rethink that policy.” prescription and supervised using venues for
Lord McCluskey, former solicitor general for Scotland the highest risk drugs and most problematic
users; a specialist pharmacist sales model,
combined with named/licensed user access
By Steve Rolles, Head of Research, Transform Drug Policy Foundation and volume sales rationing for mid-risk drugs,
by freeing up limited drug-policy resources
for proven public health interventions.
Unfortunately, as the sacking (as ACMD
chair) of Professor David Nutt shows, there
remains resistance from some politicians to
accept evidence of what actually works and
an unwillingness to engage in this debate. We
believe the way forward is through the UK
Government commissioning a comprehensive
the barrister 17
an Impact Assessment before it comes before
Parliament, but this was not the case when
the MDA was enacted. As we stated during a
private meeting with the Prime Minister, we
believe it is time to correct that anomaly.
Of course, the devil is in the detail and
inevitably different social environments will
require different approaches in response to
the specific challenges they face. The book

D
rug prohibition in various
forms has been in place
for over 100 years now, its
historical roots traceable
back to the temperance
movement. This punitive
criminal justice-led approach, premised on
the understandable but simplistic concept
that drugs are a threat, therefore we must
fight them, and thence that drugs are bad,
therefore we must prohibit them, was
enshrined as global policy under the UN
single convention on drugs 1961. The UK’s
domestic response was the Misuse of Drugs
Act 1971, which, 39 years on, remains the
central plank of UK drug policy.
all tiers of the criminal justice system. The
prisons crisis - with over half of prisoners
inside for drug, or drug-related offending
– being the most high profile, but the same
stress being carried through the police,
courts and probation systems.
The vast sums generated by the illicit
trade, particularly in producer and transit
countries, are frequently used to corrupt
state institutions, police, judiciary, and
politics, as well as providing a ready source
of funding for armed insurgency (fuelling civil
war in Colombia for example) and terrorism
(most obviously the Taliban) that can in turn
become a very real domestic UK threat.
such as amphetamines, powder cocaine, and Impact Assessment of the Misuse of Drugs does not seek to provide all the answers – but
ecstasy; various forms of licensed retail, and Act 1971 (MDA). An Impact Assessment rather to move the debate beyond ‘should we
drugs in society. Therefore we must choose
licensed premises for sale and consumption would compare the economic, social and end the drug war?’ to ’what will the world
the policy approach that delivers the best
(familiar with pubs and Dutch-style cannabis environmental costs and benefits of current look like after the war on drugs’? Criminal
outcomes from our limited criminal justice
coffee shops); and unlicensed sales for the policy, and all the alternatives, at the national Justice professionals who work daily on the
and public health resources; in terms of
least risky products such as caffeine drinks, level, and the UN should carry out a similar coal face of the drug war, and who can bear
minimising harms associated with drug
or coca tea. exercise at international level to incorporate witness to its consequences at first hand,
production supply and use. The evidence
impacts on producer and transit countries. represent a vital expert voice of reason in this
from the failure of prohibition demands that
Regulation cannot produce a drug free world debate, and we hope this book will provide a
we meaningfully explore the options for legal
or indeed a harm free world – in the short To ensure this process is one behind which basis for more proactive engagement. Please
regulation.
term it can only seek to reduce the problems everyone genuinely interested in evidence- contact us to find out more.
that stem from prohibition and the illicit based policy can unite, the alternatives
Transform has now produced a detailed
trade it has created. Neither can it address modelled need to range from stepping up ‘After the War on Drugs; Blueprint for
discussion of how the legal regulation of drug
the underlying drivers of problematic drug prohibition, leaving things as they are, Regulation’ available in hard copy or free pdf
markets could operate, proposing specific
use although it is argued it would create a far through Portuguese-style decriminalisation, download from www.tdpf.org.uk
models for a range of currently illicit drug
better environment for doing so in the future, to legal regulation, for which Blueprint could
products, and providing the rationale behind
by removing political obstacles and moving to be a guide. In the UK, it is now a statutory
them.
a more rational evidence-based footing, and requirement for all new legislation to undergo

For a policy that has the very specific aim of
creating a ‘drug-free’ society, criminalising
drug production, supply and possession
has been a remarkable failure on its own
terms. Consistently under the legislation, use
and related harms have risen, drugs have
become cheaper and more available, and
illicit production has easily met the growing
demand.
Worse still, this policy approach, (one that
we must remember is fantastically and
increasingly expensive), has delivered a series
of catastrophic consequences associated
with the sprawling international illicit trade
controlled by violent criminal entrepreneurs,
now turning over in the region of $300
billion each year, around five billion pounds a
year in the UK alone.
The criminal justice community, despite
sitting centre stage amidst this unfolding
legal and policy disaster, has been
remarkably unengaged in the reform debate,
the occasional outspoken individuals rarely
if ever matched by any concerted efforts by
the many professional bodies in the field.
This silence is no longer a tenable position; it
gives tacit support for a demonstrably failing
policy and legal infrastructure. Prohibition is
not immutable; it is a policy choice.
On the domestic front this prohibition-fuelled
crime has placed an intolerable burden on
It is vital not to forget that our domestic
response to drugs, not the use of drugs per
se, is inadvertently helping to destabilise
countries across the world. Widespread
human rights abuses and environmental
destruction in sensitive ecosystems can be
added to litany of prohibition’s disastrous
secondary consequences.
Much of this analysis will be of little surprise
– there is a growing consensus that the ‘War
on Drugs’ has been a counterproductive
failure. In the UK we have seen a succession
of thoughtful and detailed analysis emerging
form high level policy forums highlighting
precisely this including: The Police
Foundation (2000), The Home Affairs Select
Committee (2002), The Prime Minister’s
Strategy Unit Drugs Report (2003), The Royal
Society of Arts (2006), The UKDPC (2007).
A historical stumbling block in the debate has
been the fact that no clear vision of a post
prohibition world has been available. The
question ‘how would it work?’ has thus been
met with a lack of clarity, with myths and
misrepresentations filling the void.
Transform Drug Policy Foundation argues
the choice is clear; drug markets can remain
in the hands of organised criminals and
street dealers or they can be controlled
and regulated by the government. There is
no third option under which there are no
‘After the War on Drugs: Blueprint for
Regulation’ considers the menu of options for
controls over products (dosage, preparation,
price and packaging), vendors (licensing,
vetting and training requirements), outlets
(location, outlet density, appearance), who
has access (age controls, licensed buyers) and
where and when drugs can be consumed. It
then rationally explores options for different
drugs and different using populations to
suggest the regulatory models that will
deliver the best outcomes on key health and
wellbeing indicators. Lessons are drawn
from successes and failings with alcohol and
tobacco regulation in the UK and beyond, as
well as controls over pharmaceutical drugs
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180x125-IQ-SMA-en-UK.indd 1 28.10.09 10:24

 18 the barrister
Controlling the Beast: how to manage the media
around cases
By Clare Rodway, Managing Director of specialist professional services consultancy Kysen PR
L
itigation PR is the art of
managing media coverage
around cases, either to
influence the outcome (eg
by encouraging early or
favourable settlement in the
case of civil cases) or to manage the impact
of the litigation on the client’s ongoing
reputation. It is sometimes referred to as
a ‘dark art’, understandably putting many
legal practitioners off the concept. However,
this description misrepresents what this
discipline is about: there is an entirely ethical
way to run litigation PR programmes, so
there is no need for clients to be deprived
of the benefits that good media handling in
these situations can offer: the benefit of an
additional tool in their litigation armoury;
the benefit of protection to reputation; and
the benefit of ensuring their side of the story
is clearly heard and understood by those
audiences most important to them.
So not a dark art: more like PR in a strait-
jacket - the key difference with litigation
PR being that it operates in such a highly
regulated environment because of the various
court reporting restrictions and sub judice
rules and so forth.
If you are persuaded to engage with litigation
PR tactics, here are four Golden Rules to help
you on your way:
Rule 1 Understand the media’s point of
view. If you are looking to use the media to
present your client’s side of the story in the
best possible light, you need to be very sure
how the media will view the case and assess
the relative merits of the different sides of the
argument. Misjudge this and you may have a
high-profile PR disaster on your hands.
Are you able to assess the newsworthiness of
your case? Can you separate out the headline
issues? The press will make its assessment
in regard to this on the basis of the following
criteria:
• Is the case linked to a current hot
topic, eg City bonuses, corporate/investment
fraud or the banking crisis?
• Is the sum of money involved
substantial?• Is the case symptomatic
of a wider trend, eg sexism in the City?
• Is the claim particularly unusual or
shocking?
• Does the case hinge on an
interesting legal point?
• Is the claimant/defendant well-
known?
And which side of the case are you on? The
side of David? (the press will love you). Or
Goliath? (you are going to have to work hard
to win them round). What do you do if you
are not on the obviously ‘right’ side of the
story? The short answer to this is to add value
to the process for the journalist, if you can’t to
the story. For example, a good way to curry
favour with the press is to provide helpful
information and documents to journalists
in good time. What can you do to help
untangle technical information? Another
idea is to offer to provide witness statements
as your client is cross-examined, saving the
journalist the bother of attending court on
that day. And of course any report based on
your client’s witness statement rather than
their performance under the strain of cross-
examination is always going to help promote
their side of the story over the opposition’s!
And for lawyers speaking on behalf of their
clients on the steps of the court, do you know
what it takes to be a good spokesperson? A
study of any one week’s TV news items will
show an array of the good, the bad - and the
very worrying. It’s worth taking the time
to look and learn, to see what works and
what clearly doesn’t. Evasive or aggressive
behaviour never looks good on camera – and
will never win friends amongst the printed
press guys either. Hiding your client under
a jacket is also ill-advised. And of course
running away from the cameras is never good
either (but you’d be surprised how often you
see this). Good spokespeople are clear, direct
and confident in putting their side forward
and good at putting their point across in a
way that engages with people. These are the
ones who make the most positive impression
on the public, regardless of the outcome of
the case in the court. The best do all of this,
wrapping up their comments in dramatic
sound bites. Unforgettable of course in this
category was Ian Hislop’s famous quip on the
steps of the court when he lost a defamation
suit against Sonia Sutcliffe. His quote of “If
this is justice, I’m a banana” understandably
grabbed all the headlines, despite the fact
he had lost in court. Public reaction was so
strong, that Ms Sutcliffe volunteered to drop
a zero off the end of her payout. The perfect
example of how winning your case in court
is not the same as winning in the court of
pubic opinion. Another good example of a
loser in court winning in the headlines was
Catherine Zeta-Jones in hers and Michael
Douglas’s case against Hello magazine. On
the steps of the court after losing one of the
various stages of the case, Ms Zeta-Jones
answered a question from a journalist saying
‘It ain’t over’. Again, this was the story that
dominated all the papers, rather than the
victor’s at that stage.
Rule 2 No-one wants a Phyrrhic victory
Remember that legal and commercial
arguments must be tightly aligned at all times
and teams responsible for these different
aspects should work closely together. I Why join STEP?
have seen an opposition legal team crumble
when a perfect legal argument which relied
on undermining the brand value of the
client company (to show a certain threshold
had not been met and thus a legal liability
not triggered) clearly upset the board when
printed in detail in the national broadsheets,
resulting in a call for settlement within
hours of the paper hitting the streets. The
way to avoid such a disaster is to ensure
you have factored in from the very start of
your planning process all the legal/liability
and marketing/promotional issues that are
important to the client and their brand.
Rule 3 Get the detail right
This should be an easy one for lawyers! But
you need to make sure your PRs understand
the detail of the rules. I have seen horrible
mistakes by the other side. For example
in one case, assumptions were made by a
PR team that a judgment had been handed
down in court and was ‘public’, because it
was scheduled to at a particular time, and
arrangements were made with a leading legal
weekly magazine for it to be posted on their
website. That morning a severe traffic jam
delayed the start of the day’s proceedings,
which meant the judgment was not public
when the magazine posted it online. This
ended up in a high-profile contempt of court
charge.
Rule 4 Be constantly on the look-out for
how the game is changing
A new thread that needs to be factored in
to any good litigation PR strategy is social
networking. The impact of social networking
phenomenon twitter certainly took Trafigura
and their legal team at Carter-Ruck by
surprise: the nature of the twitter meant
that news of Carter-Ruck’s super-injunction,
attempting to gag reports of a parliamentary
question relating to their client, reached mass
audiences at the speed of light; the reaction
of the public was intense and volumous; as a
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For more information about STEP call +44 (0)20 7340 0500
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the barrister 19
result the super-injunction had the opposite a good understanding of how the courts and
of the desired effect - rather than suppressing cases work
the story, it became headline news in a
mainstream media storm kicked off by the
• Hire in specialist PR help if you
realise you are having to deal with other
social networks. What can be done to avoid journalists covering the case
such disasters? The best advice is to make • If you are not on the ‘right’ side of
sure you are plugged in to these networks, the case in the journalist’s eyes, (ie David’s
and that you encourage your clients to do rather than Goliath’s) then find creative ways
so, before an issue arises: should you need to win busy journalists over by being the
to push a counter-message out fast, you need most helpful party in the case to them
to have an established presence on these • Only ever release court documents
networks and have a loyal following of people to journalists when you have actual
who are used to listening to what you have to knowledge they have been handed down in
say. Moreover, be on the lookout for how new court and are ‘public’ – don’t assume.
developments may be changing the picture
again. Clare Rodway is Managing Director of
specialist professional services consultancy
A few tips to leave you with: Kysen PR - www.kysenpr.co.uk. The author
• Assume there is no such thing as recently addressed the London Solicitors
‘off the record’ unless you have a track record Litigation Association on this topic, together
of working successfully with a particular with Paul Cheston, Court Correspondent at
journalist and trusting them The Evening Standard, at an event hosted by
• Work with established court Lovells
reporters where you can, as these will have
high ethical/professional standards as well as
24/11/08 09:19 Page 1
Becoming a full member of STEP enables you to:
■ Use the designation TEP to showcase your specialist expertise
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■ Become more involved within the industry, with opportunities
to speak at conferences, join special interest groups and sit on
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How to join STEP
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our Advocacy Route. Apply by submitting three opinions
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 20 21
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New professor
NEWS NEWS NEWSof NEWS lawNEWS launches NEWSfirst NEWSmajor NEWS NEWS studyNEWS on impact
NEWS NEWS of Asbos NEWSon NEWSyoung NEWS offenders
NEWS NEWS Senior
NEWS Government
NEWS NEWS NEWSLawyer NEWS NEWS Joins NEWS NEWS NEWS NEWS UniversityNEWS NEWS of Southampton
NEWS NEWS NEWS law NEWS NEWS
NEWS
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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
University’s Exchange
NEWS NEWSChambers
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS professor NEWS NEWS calls NEWSfor more NEWSresearch
NEWS NEWS into NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWSstudyNEWS NEWS NEWS NEWSover NEWSAsbosNEWS NEWSthat NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
newly appointed
NEWS NEWS
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NEWS NEWS
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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS UniversityNEWSof Southampton
NEWS NEWS Professor
NEWS in Health
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Alison Graham-Wells, NEWS
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NEWS to be more
NEWS research
NEWS
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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
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He says, “DNA evidence is important in the investigation of crime,
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Called toNEWS
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Alison joined theNEWS
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in July 1994NEWSand hasNEWS NEWS NEWS
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community NEWS(MTIC) NEWS NEWS Team,
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NEWS NEWS
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practicalNEWSaction to NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
tackle crime
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS positiveNEWS
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for fundamental human NEWS
rights  NEWS NEWS NEWS NEWS NEWS NEWS NEWS
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the public.” NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
 
 22 the barrister
The Case for Improving your Website
Prompted by several changes to the Bar, in addition to a universal increase in the use of the
Internet, chambers have had to adapt their external communications to suit the new legal –
and media – landscape.
By James Tuke, founding director and Head of Research, Intendance Ltd
F
actors such as the increase
in public direct access,
the consequences of the
Legal Services Act, and
changes in management
structure are encouraging
chambers to review how they present
themselves to the outside world. In short,
they have become more outward-looking and
aware of the effects that changes will, and
are having on the services they provide.
Furthermore, like all service sectors, the
ability of clients and consumers to make
informed choices has increased the need
for all sets to market themselves and their
expertise better. Online communications
don’t just help this shift towards a more
modern Bar, they are a fundamental part of
this change.
Benchmarking the Bar
There is no doubt that the majority of
chambers’ websites have improved markedly
over the past few years. Yet how much have
they improved as a profession, how much
does the standard fluctuate, and how does
the profession compare to law firms, its more
progressive cousin? Intendance is renowned
in the legal sector for the Fast Fifty, our law
firm website benchmarking report. Earlier
this year we adapted the scoring system
specifically to suit the Bar, and ranked the top
30 barristers’ chambers websites, as listed in
The Lawyer’s Bar Top 30 (by turnover) 2008.
We first assessed barristers’ websites back
in 2004, when 5% of sets had no online
presence whatsoever. Naturally, there has
been significant progress since then. This
year’s report – The Intendance Top 30
Chambers’ Websites 2009 – shows that the
whole sample can at least be found on the
web, and indeed, that the best chambers’
websites have started to give their law firm
cousins a run for their money.
Two sets stood head and shoulders above
the rest of the sample – No5 Chambers
and Landmark Chambers. Both achieved a
consistently high standard across all four
websites categories: Content, Usability,
Design and Marketing. We always stress
the importance of paying equal attention
to all four categories because they are
interconnected. Deficiency in one can spoil the
overall performance of a site. For example,
promoting specialist expertise through an
online library of thought leadership is highly
beneficial for any set, but if it can’t be
easily found then it is next to useless. Thus,
navigation and page layout – elements of
Usability and Design – must be organised
and designed in an appealing, user-friendly
way to ensure they can be found and digested
as easily as possible. If this content can be
marketed effectively online, it can act as a
magnet for a set, pulling in interested parties
and making the website, and therefore the
chambers, a favoured choice for matters
relating to that type of work.
Visual presentation enhances
communication
An interesting aspect to arise from the report
is the considerable gulf between the best and
worst sites, with the highest score being 71%
and the lowest 34%. This difference – 37%
- suggests that this is an immature sector
in terms of overall web development. The
equivalent difference figure for the top 50 law
firms is much lower at 23%, showing a more
advanced general standard.
On a positive note, I think it’s only a matter
of time until the poorest performers close the
gap on the top performers, and this report
highlights many areas in which they can
remedy the situation. The most obvious and
pressing area is the poor standard of web
design. While I wouldn’t advocate wacky
designs with flying wigs and gowns, a well-
conceived visual concept that chimes with
a set’s identity is worth the expense and
the effort. Indeed, a fellow contributor to
these pages – Andrew Butler from Tanfield
Chambers – has written about managing
his set’s website redesign. Having gone
through the recommended process of site
audit, ‘brand’ identification and subsequent
redesign and build, the result is a stylish,
modern and distinctive web presence that
reflects Tanfield’s values. The key theme
that rang true from his article was the
benefit of hiring and allowing experienced
professionals to advise and lead your web
strategy. If anyone should understand the
concept of the independent expert, surely it
is members of the Bar.
The web is a great leveller
Another positive point to emerge from the
report is the equality of the web. The report
showed little correlation between chambers’
size and online performance. Therefore, as
long as a reasonable budget is set aside,
it is perfectly feasible for a smaller set to
outshine a larger one. Though the vast
majority of clients still gain access through
a solicitor, direct access to barristers is a key
part of the legal reforms. In pursuing better
access to justice for consumers, regulators
have established a pretext for better online
communications. Whether the most affluent
or reputable chambers consider themselves
secure enough without the help of an
improved online presence misses the point;
while the ultimate aim of effective web
strategy is to enhance reputation, it is just as
much about maintaining it.
Learn from your audience’s behaviour
Chambers are characterised by many
variables: their bank of legal knowledge,
specialist practice areas, clerking skills, their
case record, and so on. These differentiating
aspects are many, but too often these
advantages are not communicated effectively,
or they miss their target. I mentioned earlier
that information such as cases and articles
which demonstrate knowledge and success
are pointless if they can’t be found. In many
ways, search engines are the Internet;
without them we would be blind to what
is out there. Thus, chambers must keep in
mind that websites are constant works-in-
progress that need nurturing. One way that
helps keep a website in prime condition is
using web analytics software to record how
visitors behave on your site. Google Analytics
is a popular, free package that gives detailed
data on user movements, such as pages
viewed per visit, average visit duration, and
homepage bounce rate (percentage of visitors
that leave the homepage without viewing
another page). This data gives you vital
clues as to where your site might be failing,
making improvements easier to plan and
implement. Web analytics also establishes
which keywords – for example, criminal/
barristers/ London – visitors are using to
find your site, which in turn can be applied
to your search engine optimisation strategy.
the barrister 23
Change demands digital excellence web design, development and online
communications. Formed in 1999,
Recent sector developments further Intendance has evolved into four inter-
reinforce the argument for improving your related divisions: Research, Systems, Design
website. The front page of The Lawyer’s 9th and Online Marketing. For more information
November issue carries an article on Outer on Intendance’s services, please visit
Temple Chambers’ launch in New York, www.intendance.com.
following a previous expansion to Abu Dhabi
in 2007. Whether expansion is regional or
international, a professional web presence is
imperative in order to support such growth.
Again, legal reforms and other developments
at the Bar – such as Civil Procedure Rules
that promote alternative forms of dispute
resolution – have paved the way for a variety
of re-structuring possibilities, the most likely
of which is the consolidation of smaller
chambers into partnerships with each other,
or with law firms.
The same issue of The Lawyer highlights
another potential development that, if taken
up by the Bar, would necessitate better online
features. The supply of information about,
and the actual process of, recruitment online
has become increasingly important as the
web becomes the primary communication
channel for younger audiences. Again, law
firms have led the way in this respect. News
that Linklaters is considering scrapping its
printed graduate recruitment brochure is
an interesting move, and one that is in
keeping with burgeoning ‘green’ attitudes.
No profession can afford to ignore the ethics
involved, and printed materials that can be
covered online, such as those for recruitment
or pupillage, are likely to be phased out. The
more advanced your online communications
are, the easier it will be to adapt to a digital
future.
James Tuke is a founding director of
Intendance, and Head of Research. James
can be contacted on 020 7242 7160 or at
james.tuke@intendance.com
Intendance is a London and Paris-based
company specialising in all aspects of
 24 the barrister
Mental health and justice: making rights a reality
By Paul Farmer, Chief Executive, Mind
T
he criminal justice system is
currently failing victims and
witnesses with mental health
problems. Last year, the
influential House of Commons
Justice Committee published
their report into the Crown Prosecution
Service (CPS)1 and identified mental health
as a key area of weakness. They highlighted
lack of support provided to victims and
witnesses with mental health problems
during the court process and an “institutional
reluctance around being prepared to believe
people with mental health problems as
credible witnesses”, as I described it when
I was called upon to give evidence to the
Committee’s inquiry. In this article I outline
the considerable barriers to justice faced by
people with mental health problems, and
what needs to change to ensure the justice
system upholds everyone’s right to seek legal
redress for crimes committed against them.
Experiences of the criminal justice system
The Committee’s findings echo Mind’s own
investigations into people’s experiences of
the justice system. Our ‘Another Assault’
report, published in 2007, demonstrated
that people with mental health problems
experience shockingly high rates of crime
and victimisation in the community. Yet this
group is often reluctant to report crimes, or,
when they do so, they receive a substandard
service from criminal justice agencies,
including the police, the CPS and legal
professionals.2 Our research found 71 per
cent of respondents had been victimised in
the community at least once in the past two
years. 30 per cent of those did not report
what had happened to anyone at all. Of
those who did report a crime, 64 per cent
were dissatisfied with the response of the
authorities.
The barriers to justice are threefold. First,
poor police relations deter victims from
coming forward to report crime. Second,
a lack of mental health awareness among
police and prosecutors prevents vulnerable
victims from being identified and supported.
Lastly, people with mental distress are often
perceived as unreliable witnesses, so cases
may be dropped before they reach court, or
witnesses face intrusive (and often irrelevant)
questioning about their mental health history
which may affect the outcome of the trial.
The latter issue – misperceptions about the
impact of mental distress on credibility and
reliability – is at the root of the discrimination
faced by victims and witnesses with mental
health problems. The High Court recognised
this in 2009 in a ground-breaking case
which found the CPS to be in breach of the
Human Rights Act, because it discontinued
a prosecution on the basis of poor decisions
made about psychiatric evidence.3
The CPS in breach of the Human Rights Act
The ground-breaking hearing, known as FB
v DPP, concerned a victim of serious physical
assault (FB) who saw his case dropped
because he had a diagnosis of schizophrenia,
despite identifying the assailants and having
physical evidence of the extent of the crime.
The prosecution was discontinued on the
advice of counsel, in light of a brief medical
report which generalised about the likelihood
of such a mental health condition affecting
FB’s perception or recollection of events. The
judge dismissed this reasoning as either a
misreading of the psychiatrist’s report or “an
unfounded stereotyping of FB as someone
who was not to be regarded as credible on
any matter because of his history of mental
problems.”
The conclusion of the judge is telling:
“The decision to terminate the prosecution
on the eve of the trial, on the ground that
it was not thought that FB could be put
before the jury as a credible witness, was
to add insult to injury. It was a humiliation
for him and understandably caused him to
feel like a second class citizen. Looking at
the proceedings as a whole, far from them
serving the State’s positive obligation to
provide protection against serious assaults
through the criminal justice system, the
nature and matter of their abandonment
increased the victim’s sense of vulnerability
and of being beyond the protection of the
law.”
If the experience of being a victim of crime
was not distressing enough, FB then endured
a traumatic encounter with a justice system
which was effectively closed to him on
grounds of his mental health history. The
barriers to justice faced by FB in this case
are sadly all too common, as the judge
acknowledged when he cited Mind’s Another
Assault report during the hearing. Mind
the barrister 25
finding this information was passed to the witnesses with mental health issues’ and made where possible before the trial or in
defence. Disclosure of mental health history forthcoming guidance for prosecutors on use a closed session. Legal professionals should
in open court does not only have implications of psychiatric evidence. This high level work also make greater use of existing tools, such
in terms of potentially skewing the outcome is timely and welcome, but now we need to as Special Measures, to support victims and
of the trial – it is an unjustifiable breach see a culture change within the CPS on the witnesses to manage the court process and
of privacy and potentially harmful to the ground. give their best evidence.
continues to hear shocking testimonies about
individual, their family and friends, given
inappropriate and discriminatory use of
the extent of stigma towards mental health, It is not just incumbent on the CPS to take Above all, there needs to be an urgent change
psychiatric evidence to deny victims and
and the damaging effects this can have on this forward. All legal professionals have in attitudes among all justice professionals,
witnesses access to justice.
people’s lives well beyond the courtroom. a responsibility to support victims and towards a system that treats someone with
witnesses with mental health problems and a mental health problem as an equal citizen,
Misuse of psychiatric evidence
Recommendations for change to avoid – and actively challenge – misuse of with equal access to justice.
In one case, an out of control motorcycle
psychiatric evidence. Mind would like to see
mounted the kerb and ran into a woman
I regard access to justice as a basic human thorough training for police, lawyers and the Paul Farmer, Chief Executive, Mind
walking along the pavement. The case of
right in our society. We all expect that if we judiciary on the interplay between mental
dangerous driving was discontinued after
are the victim of a crime, we will be taken capacity, credibility, reliability and different 1 House of Commons Justice Committee
the pedestrian’s mental health history was
seriously by the criminal justice system and mental health conditions, and greater use of (2009) The Crown Prosecution Service:
brought into it in her disfavour. As she had
that we will be supported as a witness. It is pre-trial interviewing and witness profiling Gatekeeper of the Criminal Justice System.
attempted suicide in the past it was suggested
extraordinary – and entirely unacceptable – techniques to assess these issues before court Ninth Report of Session 2008-9. HC 186.
that she may have put herself in the way of
that so many people find themselves excluded proceedings begin. London: The Stationary Office.
danger intentionally, even though there was
from that system simply because they have a 2 Mind (2007) Another assault: Mind’s
no evidence of this. The case was dropped
history of a mental health problem. The Government and the CPS needs to campaign for equal access to justice for
and the pedestrian received no compensation
consider introducing tighter rules on the people with mental health problems. London:
for her injuries.
Thankfully, the tide is now turning. The use of psychiatric evidence, in the same Mind.
Director of Public Prosecutions has way as restrictions have been placed on 3 R (FB) v Director of Public Prosecutions
Another case reported to Mind underlines
acknowledged the CPS’s failings and pledged evidence about sexual history and ‘bad (EHRC intervening) [2009] EWHC 106
both the lack of support provided to
to take action to remedy them. Mind has been character’ to discredit a witness. Where
victims and witnesses with mental health
pleased to be involved in the development of psychiatric evidence is disclosed, decisions
problems in the courtroom and the use of
a new CPS policy on ‘Supporting victims and about its relevance to the case should be
psychiatric evidence to discredit a victim
or witness. A woman with experience of
anorexia and agoraphobia was assaulted
by her neighbour. The magistrate’s court
deemed the incident so serious that it issued
a court order preventing the neighbour from
returning home. The case was sent to Crown
Court, and the defence barrister asked a
series of questions pertaining to her mental
health and whether she had previously been
detained under the Mental Health Act. The
victim gave evidence for two hours in total,
during that time experiencing a severe panic
attack. Following the hearing the defendant
was found not guilty, a judgement in stark
contrast to the decision in the magistrate’s
court. The victim told Mind:
“If I’d had a broken leg or cancer this would
not have been brought up to use against me
as the victim in all this. […] At no point did
the barrister representing my daughter and
myself, nor the judge, put a stop to these
inappropriate and irrelevant questions.”
Mind has heard other reports of people’s
case notes or psychiatric reports being
used as evidence – and often passed to
the defence without question – where this
information has no direct relevance to the
case. Examples include a victim of assault
whose history of depression was passed to
the defence although this was not a factor
in the case, and a victim of fraud who
had attempted suicide ten years previously
 26 the barrister
Splitting the Legal Aid Fund
By Steve Hynes, Director, Legal Action Group.(LAG)
O
nce again the
government has
ordered a report on the
legal aid system. The
New Labour period in
government kicked off
with Sir Peter Middleton’s report in 1997.
Most recently we had Carter and before
that the Fundamental Legal Aid Review. If
they are defeated in the general election this
year, Labour will be bowing out with another
report on legal aid this time by Sir Ian Magee.
Magee is examining whether to separate
the Criminal Defence Service (CDS) and the
Community Legal Service (CLS). He is due
report this month. Both LAG and the Access
to Justice Alliance have campaigned for the
separation of the funds, provision for which
was included in the Access to Justice Act
(1999), but until now not implemented. LAG
believes if Magee recommends separation, it
has to be more than just a paper accounting
exercise as the temptation will always be
for governments strapped for cash to take
money out of the CLS to pay for the CDS
whatever the administrative arrangements
for the respective funds.
Access to lawyers paid for by the
state spread from murder trials to most
criminal cases over the last century. Legal
aid became increasingly available in the
magistrates courts in the 1960’s and the
right to representation in the police station
was brought in by the Police and
Criminal Evidence Act in 1984.
As successive governments have
Number
of cases
increased the demands on the
Amount
criminal justice system this has
spent
(£million)
ratcheted up the cost of criminal
legal aid. It is right that the state recognises
that when a person’s freedom is at stake
access to independent legal advice is essential
to ensure a fair trial. The problem is that due
to the cap on the overall budget which was
introduced by the Access to Justice Act, the
demand led criminal legal aid budget is fed to
the detriment of people’s civil legal rights by
raiding civil legal aid.
LAG recognises value for money in the legal
aid system is important, but it does seem to
us that the government and LSC have become
obsessed with the notion lawyers are making
too much from the system. They are fond
of drawing comparisons with continental
Europe to show that England and Wales
spends more per head of population on legal
aid than other European countries.
A report commissioned by the government,
written by Roger Bowles and Amanda Perry
of York University, which was published in
October last year confirmed the headline
figures for greater expenditure on legal aid
(though the Dutch do spend slightly more on
criminal legal aid).
What the government are less keen to
highlight from the Bowles and Perry
research is that it argues the relatively high
costs of legal aid seem to be offset by less
expense in our courts system compared to
the rest of Europe. Inquisitorial systems in
Europe have more of the costs loaded in
00/01 01/02 02/03 03/04
116,000 115,000 123,700 124,000
422 474 569.3 645
the barrister 27
Spending on Crown and Higher Courts create a charitable foundation. This would Magee comes up with.
Cases mean government giving up a large degree
The bare figures do not indicate that the LSC of control, but the foundation could join-up
has been any more successful in controlling the statutory and other funding streams for Steve Hynes is the Director of the Legal Action
these costs than the previous administrative civil legal advice and public legal education. Group. He is the author with the journalist
the investigation of the case rather than in
arrangements (see table above). Cutting fees In such an integrated system a ring fenced Jon Robins of the recently published book on
court based adversarial hearings. Apart from
has been the only game in town. In October civil legal aid fund could be focused on legal aid policy, “The Justice Gap- What ever
Sweden, there are lower crime rates in other
2005 the government negotiated a deal with specialist casework. It would have to happened to legal aid?” available in legal
European countries, and far fewer people
the criminal bar to reduced hourly rates and continue to prioritise what it spends its cash bookshops or at www.lag.org.uk.
accused of a crime in all other countries are
expanded the use of the graduated fees in on. Protection of children as well as other
brought to trial compared to England and
Crown Court cases to save cash. According to vulnerable groups would have to be top
Wales. Both significant factors also in driving
the LSC these measures had worked through of this list, as would the defence of civil 1 Legal Aid: Funding Reforms- MoJ
costs in England and Wales say Bowles and
by 2007/08. If the cuts proposed in the liberties. This leads me to a final important Consultation Paper pub 20th August
Perry.
paper Legal Aid Funding Reforms1 are point.
implemented these would further reduce
A separate CDS fund would be better
expenditure per case, but the proposals, At the heart of the legal aid system there is
able to argue that the costs of providing
especially the one to reduce fees to the level a dichotomy. The state pays for legal aid to
its service need to be met by the treasury
of those paid by the CPS, have proved hugely ensure equality before the law. In criminal
when legislative and procedural changes
controversial. law this means paying for the defence of
lead to greater numbers of cases in the
people accused of a crime by another arm of
criminal justice system. The legal aid impact
Civil legal aid developed in a piecemeal the state and it is often the role of civil legal
test, which was supposed to address this
fashion primarily out of the demand for aid to help uphold peoples’ rights against
issue, has proved woefully inadequate in
divorce driven by war and social change. emanations of the state. Put crudely the job
doing so. According to LSC Chief Executive
Its major priority has now shifted to child of the legal aid system is largely to bite the
Carolyn Regan, speaking at the Legal Aid
protection cases. Over the years successive hand that feeds it.
Practitioner’s Group Conference last year,
governments have altered what it will
only around £15m has been recovered since
pay for, mainly to trim the budget. Lord The potential bear trap for the Magee review
it was introduced. This is despite the 3000
Chancellor Derry Irvine introduced the last is that it undermines the purpose of legal
new pieces of criminal legislation introduced
major changes in scope taking out personal aid by recommending separation of the
under the current government.
injury and bringing in representation in funds at the cost of greater control of legal
immigration cases. aid by the executive arm of government.
Much of the growth in criminal legal aid has
Some independence in the administrative
come from the increasing costs of the crown
In arguing for the separation of the funds LAG arrangements for legal aid is needed as
and higher courts cases. Any separation of
sees a major opportunity to plan civil legal without these immediate political priorities
the legal aid budget will have to tackle the
advice spending. In contrast to criminal legal would be in danger of undermining access
question how best to administer these cases.
aid, other government departments fund legal to justice. The trouble is any alternative that
Until April 2003 they were administered
advice to the public, as do local councils and could do this looks remarkably similar to what
separately by the courts system and so the
to a lesser extent, charitable sources. LAG we already have, that is an agency at arms
most obvious answer for Magee to come up
believes everyone should be entitled to access length from government with independent
with is to revert to this system.
to free basic legal advice regardless of means decision making powers on individual
04/05 05/06 06/07 07/08 and that public legal education should also cases and some degree of autonomy over
be provided as a public service. This should operational policy. It seems unlikely in these
115,600 121,500 120,700 123,519
be the basis of any Community Legal Service cash strapped times the government would
worthy of the name. A radical solution for the want to create two such agencies in order to
682.4 694.5 670.0 676
administration of such a service would be to separate out the funds, but we will see what
 28 the barrister the barrister 29
first year land law students would have been incompatibility'. But courts have been slow desirable to formulate such a rubric, as Dr
Rights and remedies able to tell Hammersmith and Fulham LBC, to explain their reasoning behind choosing Aileen Kavanagh has argued, observing that

s.1(6) of the Law of Property Act 1925 states between the remedial and declaratory ‘such a test is impossible to devise, or, if
Thom Dyke looks at the scope of housing law rights and remedies. that a minor is not capable of holding a approaches. attempted, would be so abstract that it would

I
n a previous article (see ‘A Home
for Rights’, Michaelmas issue,
October 2009) I addressed the
issue of which human rights
provisions are most commonly
engaged by housing law issues.
The next logical step is to ask who will
be affected by these rights, before then
considering what powers the courts have
in respect of supplying an adequate remedy.
Whose right?
Practitioners are faced with an increasingly
complex interrelationship between the
various public and private parties which
become entangled in housing law disputes.
Determining the status of the respective
parties will often have an impact upon
the type of remedy sought, as well as the
tactics pursued throughout the litigation
process. For example, whereas private
sector organisations are amenable to the
Data Protection Act 1998, the public sector
falls under the ambit of the Freedom of
Information Act 2000. This can provide
important avenues for determining the
merits of a claim at the pre-action stage.
Landlords can range from private and
commercial landlords, to local authorities
and Registered Social Landlords (RSLs).
More confusingly for practitioners, the
distinction between public and private
can vary according to the function being
exercised. For instance, a public landlord
will be exercising a public function when
seeking a possession order, but a private
law function when fulfilling obligations in
respect of repair or allowing the tenant
‘quiet enjoyment’ during their tenancy.
This distinction is an important one, as by
virtue of s.6 Human Rights Act 1998, public
authorities will be amenable to challenge on
the grounds of violating Convention rights.
Whilst the law is relatively straightforward
when dealing with functions carried out by
a public body such as a local authority, the
position with RSLs is more complex. Whether
an RSL is a public duty will depend on the
nature of the RSL and the specific function
being performed. This was confirmed in
Poplar Housing and Regeneration Community
Association v Donaghue [2001] EWCA Civ
595. Lord Woolf CJ observed at para 58
that when determining the question of public
function, s.6 ‘should be given a generous
interpretation’, which gave practitioners
a wide scope for argument on this point.
Nonetheless, in YL v Birmingham City
Council [2007] UKHL 27, the House of Lords
held that Convention rights were not engaged
in respect of a private care home, even when
it was acting under the aegis of the National
Assistance Act 1948. The court distinguished
YL on the grounds that it operated on a
private and commercial basis not found in
Poplar.
Further guidance was recently provided by
the decision of the Court of Appeal in R
(on the application of Weaver) v London &
Quadrant Housing Trust [2009] EWCA Civ
587. Conceding that the defendant RSL was
a hybrid authority, the appeal focused on the
question of whether the act of terminating
the tenancy was a private act or not. The
court emphasised that it was crucial to take
the context of a decision into account when
determining its character. On the basis that
the defendant was working closely with the
local authority in providing social housing,
and had received substantial public funding,
Collins LJ held at para 102 that ‘the act
of termination is inextricably linked to the
provision of social housing as part of the
Trust's public function’. However, in his
judgment at para 84, Elias LJ sounded a
note of caution, stating that, ‘it does not
necessarily follow…that every RSL providing
social housing will necessarily be in the
same position as the [defendant]…[and] the
determination of the public status of a body
is fact sensitive’.
In November 2009, following the Court of
Appeal’s decision in Weaver, the Supreme
Court refused permission to appeal, on the
grounds that although “the point is clearly
one for the Supreme Court...this is not a
suitable case on its facts”. The court added
that if a suitable case could be identified, then
consideration should be given to applying for
a leap-frog appeal.
The importance of ascertaining the status of
the parties is not just limited to determining
what type of function is being exercised by
the landlord, as the position of the tenant
may also be crucial. The recent decision
of the Court of Appeal in Alexander-David
v Hammersmith and Fulham LBC [2009]
EWCA Civ 259 underlined the need for clarity
when granting tenancies. The facts of the
case were that the respondent local authority,
acting in accordance with its duty under
s.193(2) Housing Act 1996, had granted
what purported to be a lease to the appellant,
who was 16 at the time. However, as all
legal estate in land. Therefore by virtue
of Sch.1 para.1(1) of the Trusts of Land
and Appointment of Trustees Act 1996, the
written notice purporting to create a lease, in
fact ‘operate[d] as a declaration that the land
is held in trust for the minor’. The difficulty
arose when the local authority served notice
to quit on the appellant, who had been the
subject of a number of complaints from other
residents. By the time the case reached
the Court of Appeal, the court held that the
local authority could not lawfully terminate
the lease, and thereby destroy the subject
matter of the trust. By failing to adhere
to basic legal principles, Hammersmith
and Fulham LBC created a tenancy which
they were unable to terminate. Whilst this
situation is clearly of limited application,
and will naturally expire once the tenant
attains majority, Alexander-David provides
an object lesson for local authorities looking
to properly discharge their obligations under
the statutory homelessness provisions.
Choosing your remedy wisely
The two main powers granted to the courts
under the HRA are contained in ss 3 and 4.
Section 3(1) requires the court to interpret
legislation 'so far as it is possible…in a way
which is compatible with the Convention
rights'. If the statute in question is not
amenable to this interpretative exercise, and
the court is satisfied that the provision is
incompatible with a Convention right, then it
can consider invoking its power under s.4 to
make a declaration of incompatibility. Before
doing so, the court must be of the opinion,
by virtue of s.4(4)(b), that '(disregarding
any possibility of revocation) the primary
legislation concerned prevents removal of the
The leading case concerning the choice
between ss 3 and 4 is Ghaidan v Mendoza
[2004] UKHL 30. The case dealt with an
application for succession to a statutory
tenancy under the Rent Act 1977 by
the surviving partner in a homosexual
relationship. This case concerned two
questions. Firstly, whether Schedule 1
paragraph 2 of the Rent Act 1977 violated
Art 14 when read in conjunction with Art
8. Secondly, if answered in the affirmative,
how should para 2 be interpreted in light of
the HRA? Insofar as it is relevant, Para.2
provides that ‘the surviving spouse of the
original tenant, if residing in the dwelling-
house immediately before the death of the
original tenant, shall after the death be the
statutory tenant’. By a majority of four to
one, the House of Lords chose a remedial
approach, deciding that it was possible to
read the definition of ‘spouse’ to include
same-sex couples, allowing Mr Mendoza to
succeed his partner as a statutory tenant.
However, questions remain about the limits
of the use of s.3 to ensure Convention
compliance. Lord Nicholls stressed this point,
noting at para 33 that any interpretation
must be compatible with ‘the underlying
thrust’ of the legislation, and not require the
courts to undertake ‘legislative deliberation’.
Lord Roger phrased his approach in similar
language, noting at para 110 that courts
were not able to ‘change the substance of
a provision entirely’. Much effort has gone
into reading the tea leaves of the Ghaidan
decision, but it is far from clear that any set
test has been established to help the courts
choose between declaratory and remedial
action. Indeed it may not be practical or
merely provide some general guidelines or
indications of the factors relevant to that
determination’. But this cautious attitude
surely represents a poverty of aspiration –
the Ghaidan decision falls significantly short
of providing the certainty sought after by
practitioners and would benefit from more
systematic guidance. Until the appellate
courts revisit this question, practitioners
should proceed on the basis that courts will
try to use s.3 wherever possible instead of
s.4, with consideration made as to which
route produces the most equitable result.
Conclusion
Whilst the courts are still a long way from
providing absolute certainty when it comes
to determining rights arguments, the
recent decisions by the Court of Appeal in
Weaver and House of Lords in Ghaidan have
provided some clarification. Nonetheless, the
invitation given by the Supreme Court to find
a case more suitable for determination than
Weaver, should keep practitioners guessing
for a little while longer.
The author is a pupil barrister at Hardwicke
Building.
 30
NEWS
ROUND
UP
the barrister
A new dawn for legal training and education
Daniel Mohacek, Managing Director at CPDcast®, considers the state of the market and looks
at how the flexibility and cost-effectiveness of the internet is finally heralding a new era for legal
training and education.
I
t might be over-simplifying things to
say that learning and development
heads at chambers of all sizes are
cutting individual training budgets,
but there are signs that delivery
and management of CPD-accredited
programmes is, at least, coming under
increased scrutiny.
“Conferences are over”
Whilst this statement might be premature, it's
clear that the conference sector is feeling the
pinch during these financially-constrained
times. The average cost of producing and
marketing a seminar or training day remains
much the same as it's ever been. A reduction
in attendance numbers over last few years
means that the networking opportunities with
solicitors (if indeed attendees believed they
existed before) are markedly smaller than
before. Indeed the cost of multiple location
conference tours is further restricting the
number of events outside the biggest cities.
Conference organisers, unable to make
significant reductions in their overheads,
have had to look for new ways to provide
added value for attendees.
The quality of conference speakers and topics
remains as key as it ever was and should
continue to be something all CPD training
providers strive to maintain. Indeed the
quality of CPD training in the legal sector has
largely out-performed rival sectors for many
years now. But what conference producers
are failing to address is that many barristers
no longer have the time or inclination to
attend their events.
With the pressures stemming from economic
and practice changes being felt by many,
attending a conference means a day away
from chambers or court and the loss of
billable time. Many barristers, self-employed
as they are, will be familiar with a sense of
unease when they attend a training seminar.
And it's not just a matter of cost – barristers
also have a professional obligation to put
court attendance first which necessitates last
minute cancellations.
Faced with a range of training mechanisms
and methods including online CPD offerings,
many practitioners no longer see any value
in attending a conference. And, even though
giving lectures to solicitors is a good way
of getting CPD points, barristers now have
to pay the Bar Standards Board to accredit
their talks – an added burden on top of the
preparation required.
Developing a sophisticated approach
Learning providers everywhere have seen
some significant changes in the way firms
pay for and consume CPD-accredited
training. And on a individual level, people
are increasingly looking at alternative,
internet-based ways of obtaining CPD.
For barristers to keep up with changes in
the law, the podcast format works extremely
well. Set against conferences whose format
has remained largely the same from their
conception, barristers are now reaching
for online tools as their learning media of
choice. Downloadable and portable, people
are turning to podcasts, in particular, as
an up to the minute legal resource for their
commute home or even at the gym. By
contrast conferences on certain areas of the
law tend to be very sporadic and yet another
alternative – live webinars – force legal
professionals to be tied to their screens and
to watch at a certain time and that's before
you work your way through a minefield of
technologies that support the format.
Still, it's the quality contained within the
podcast that remains key. Leading barristers
understand the importance of podcasts as a
self-promotion marketing tool. It's because
podcasts demonstrate both the skills of
public speaking and legal knowledge that
their demand is on the increase. Similarly,
solicitors need to show they're adding value
to the firm and helping promote its work
– here podcasts act as an innovative, cost-
effective communications medium.
Understanding trends
Perhaps the most telling behavioural trends
in CPD consumption can be seen in the
demand for particular content. Anecdotal
feedback across the training industry shows
that modules on insolvency, employment and
insurance mediation are in high demand and
therefore reflective of the areas barristers
are being asked to focus on and, in this way,
for
to help find cures for prostate and gynaecological cancers
The Kerala
advenTure
podcasts act as a handy “aide memoire”.
in india
Having a detailed understanding of the
very latest legal developments is, of course,
20 – 28
absolutely vital in order to advise clients november
properly. The extraordinarily specialised 2010
nature of the UK legal services sector
means that niche areas of the law often get
overlooked by the conference circuit or are
only covered at such a later date as to be no
longer of any use. Here podcasts come into
their own due to their production costs, speed
of turnaround and, for users, portability.
Looking to the future
Much consideration is being given to the
Legal Services Act 2007 which aims to put
consumer interest at the heart of a new
regulatory framework for the industry. It
will also enable legal services to be provided
under radically new business structures with
solicitors and barristers working side-by-side
and doing away with the notion of LLPs. Some
predict an increase in M&A activity as high
street partnerships face the prospect of, say,
supermarkets (which have already jumped
with two feet into the financial services sector)
developing legal advice offerings. Others
point to a much-needed and more business-
like manner of practice management with
increased competition and improved access
to justice all round as a result.
• Hike and camp in Two of Britain’s leading medical men are putting on their hiking boots again for
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utilise audio podcasts as their marketing,
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• Explore and For further information and an application form:
Daniel Mohacek, Managing Director, CPDcast®
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 32 the barrister
lawyer is sufficiently well-trained
p.1 and motivated to provide the
required level of service. Nowhere
is this more true than in the case
of advocacy and advisory services, in the
context of contested litigation, which is the
barrister’s sphere of expertise. Bearing
in mind therefore the practical limits of
regulation, the Clementi review accepted that
it would be inappropriate to insist upon a
single monolithic heavy-handed regulatory
system for the legal profession as a whole.
Clementi accepted, and the Legal Services Act
2007 therefore embraces, the pre-existing
system under which lawyers of different
kinds are regulated by their own professional
body subject to overarching supervision by
the new Legal Services Board. The only
pre-requisite is that the professional body in
question must ensure that its regulatory role
is handled separately from its representative
functions. Thus the Bar set up, as from the
1st January 2006 (when I began my year
as Chairman of the Bar) the Bar Standards
Board now chaired by Baroness Ruth Deech
(matched by the Solicitors’ Regulatory
Authority set up by the Law Society).
In a Press Release issued on 13th November
2009 the BSB announced that it was to take a
series of important decisions about the future
regulatory framework for the Bar. The Press
Release stated in part as follows:
‘The BSB acknowledges that the Bar has
served England and Wales well for centuries.
Its unique attributes are recognised at home
and abroad. The BSB is therefore determined
that, in making any liberalising changes, the
defining and positive attributes of the Bar
– its independence, its excellence, its pro
bono work and its ethical code - should be
preserved in the public interest.’
The BSB might have added the importance
of these qualities being available to solicitors
up and down the country, especially those
firms – some 80 per cent of the total – with
five partners or less.
Given that the Act expressly preserves
the Bar’s right to retain its own separate
regulatory regime, it might also have been
expected that the BSB would support the
Bar’s rejection of partnership as a regulatory
model, and likewise would steer clear of
new entities such as the so-called Legal
Disciplinary Practice involving both barristers
and solicitors. Of course, partnership would
in many ways be a natural model for the
provision of legal services, as is shown
by the fact that solicitors, who make up
some 90% of all legal services providers, do
generally practise in partnership. Through
a partnership the senior members are able
to earn profits on the basis of the activity of
others. By contrast, a barrister must accept
personal responsibility for his own work
under paragraph 306 of the Code of Conduct.
He cannot supply legal services by offering
work carried out by others. Moreover, so
far as the self-employed Bar is concerned,
barristers are bound by the cab rank rule,
one of whose beneficial and civilising effects
is that many barristers in the course of their
professional practice act for clients on “both
sides of the argument”, in other words for the
prosecution as well as the defence, for wives
as well as husbands, for tenants as well as
landlords, for claimants as well as insurers,
and for those wishing to obtain a remedy
from a public body as well as for the public
body against whom the remedy is sought.
Contrary however to some people’s
expectations, the BSB has now on 19th
November 2009 reached the following
decisions among others:
- Barristers should be permitted to
become managers of LDPs, regulated by the
SRA without having to requalify as solicitors.
- Barristers should be permitted in
principle to form barrister-only partnerships,
pending the creation of an appropriate
regulator for such entities, currently not in
existence, and consultation by the BSB in
relation to becoming such a regulator.
- Barristers should be permitted
in principle to practice through other
barrister-only companies and limited liability
partnerships (LLPs). However, further work
is required to determine if the BSB should
regulate these entities.
- The cab-rank rule will apply to
barrister only partnerships, as well as the
self-employed Bar. The BSB considers that
all advocates should be subject to the cab-
rank rule and will be raising this issue with
other regulators.
- The Board should consult
whether or not it should become an entity
regulator of the new legal entities, and, as
part of this consultation, look at whether a
modified cab-rank rule can be applied to
barristers practising as managers of LDPs
undertaking advocacy work.
In its accompanying Press Release, the
BSB reiterated that ‘….having made these
decisions affecting the nature of the supply
of legal services, it is now our intention to
introduce them in a way which safeguards the
independence, quality and ethical conduct of
the Bar while also serving the best interest
of consumers. We trust that these changes
are creative, flexible, permissive in the most
positive sense, measured, in that they do
not represent a ‘free for all’, but amount to
a ‘shot of adrenalin’ for those elements of
the Bar that have been struggling in recent
times, and, most importantly therefore, of
benefit to the users of barristers’ services
and for the legal services market as a whole.’
These decisions by the BSB raise the following
as yet unanswered questions:
1. Will the Bar Council agree to
amend its constitution so that it can become
an entity regulator and if so, which entities
will it decide to regulate?
2. Will barristers in chambers
generally decide to emulate solicitors in
adopting partnership as the predominant
practice model? If so, what effect will that
have upon the ethos of personal responsibility
hitherto integral to professional practice at
the Bar.
3. How many barristers will choose to
practise in an LDP rather than in chambers
on or in a barrister-only partnership and, if they
decide to do so in significant numbers, what
effect will this have upon the viability of the
Bar Council in its regulatory role.
Surprisingly the papers upon which the
BSB based its recent decisions contain no
answers to these questions. Indeed, the
papers proceed on the basis that it was
unnecessary to know the answers to these
questions before deciding how, in the public
interest, the issues raised for decision should
be resolved.
the barrister 33
In the view of the present writer, the Legal role of the Inns into even sharper relief. The
Services Act did not oblige the BSB to Bar Council, through the BSB, must as I have
decide as it has done, and its decisions raise said provide a sensible and cost-effective
question-marks as to the future survival of regulatory regime, but it is the Inns which
the Bar as a separate branch of the legal must provide the training, the motivation,
profession. Much will depend upon whether the inspiration and the example of excellence
the BSB can compete effectively with other upon which the Bar’s success has always
regulators in offering a sensible and cost- been based. It is with the Inns, and through
effective regime under which those lawyers them with the Bar itself, that the future of
can practise who seek to offer advocacy and this historic profession now lies.
related advisory services. On an optimistic
view, advocates will come to see the Bar’s Stephen Hockman QC, Head of
regime as the regime of choice for those who Six Pump Court Chambers
wish to practise advocacy, and the Bar as a
profession will continue to increase in size as
it has done in the past. I suggest however
that only in this way can the future of the
Bar be guaranteed. Those who take the view
that it would be good for the Bar to decline
in numbers and to become an ever-more
specialist meritocracy are, in my view, living
in cloud-cuckoo land. Unless barristers make
themselves available in sufficient numbers to
solicitors up and down the country to provide
the kind of service upon which solicitors wish
to rely, then the Bar will have largely outlived
its usefulness and will gradually (or even
perhaps rather rapidly) wither away.
However as they face the future, barristers
can take comfort from one priceless
advantage. That advantage is inherent in
their identity as barristers - an identity
recognised explicitly in the Legal Services Act
in which a barrister is defined as someone
who has been called to the Bar by an Inn of
Court. Barristers have been questioning the
raison d’être of the Inns of Court ever since I
myself was called to the Bar. The answer to
the question has always been clear, but the
result of the BSB’s decisions is to throw the
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 36 the barrister
EXPERT WITNESS SERVICES
The Impact of the Credit Crunch on the
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By John Frenkel FCA MAE
T
he last time that the
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scaled the dizzy heights of an unprecedented
settlement level of £380,000. Since then
there have of course been many factors that
have helped to propel upwards the levels of
award that are commonplace, such as the
the barrister
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the lowering of the current discount rate to case, we have only recently started to see
2.5%. claims where the immediate timing of the
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 38
NEWS
ROUND
UP
the way to assess damages in the present
climate. I consider the different type of
Claimant whose damages are to be assessed.
Self-Employed – it is quite possible that by
now you will be starting to see accounts for
the self-employed that will straddle the start
of the credit crunch. Sales and profits may
well have reduced from previous years and
the art will be to determine what proportion
of such fall would have occurred anyway
and what proportion is accident attributable.
Many industries will have statistics on
market performance, which may even be
geographical based, and these will help to
show what might have occurred but for the
accident. Alternative approaches will involve
the detailed review and analysis of sales by
customer by week and month both pre-and
post-accident to identify where the changes
are and then apportion such variations
between the accident and the credit crunch.
It should be borne in mind that
determining the multiplicand for any future
loss, it may well be that the latest figures
from the “projected” accounts for 2009
might not be the maintainable profits that
are to be used. Thus the Claimant who will
never work again would not be best served
by having his future losses based on 2009
figures. For long periods of future loss it is
often appropriate for the expert to consider a
range of multiplicands to reflect the changing
economic climate over time and leave it to the
legal team and the judge to decide how long
the various economic periods are likely to
last. The Claimant who can continue to work
post-accident and thus only has a partial loss
of future earnings will equally require his
mitigating earnings to be considered over
time, and again for a range of multiplicands
to be applied to these projected actual future
earnings.
The self-employed Claimant who was just
about to go into business when the accident
occurred will have to be considered even
more carefully than usual. There are some
success stories but they are few and far
between, especially when compared to
the numbers setting out. Never mind that
markets are shrinking and there are more
people chasing less business, the reduction
in the availability of working capital from
the banks is a major setback for fledgling
businesses. There are funds to be had and
the more robust the pre-accident plans the
better the chance the Claimant will have of
persuading the Defendant and the judge of
the merits of his case. Therefore, now more
than ever, it is essential that well-constructed
and well-documented, balanced claims are
submitted on behalf of Claimants.
Employed Claimant – the employed Claimant
would have been at risk of losing his job
anyway. Of course this does not totally negate
a claim, even if his employer were to have
gone out of business. This is because what
the Claimant has lost is his earning capacity.
in So even though there may have been some
gaps in employment but for the accident
because of the failure of the employer, the
Claimant will still have suffered from a loss
of earnings. There are some industries that
have clearly suffered but many employers will
have offered creative deals to the workforce.
For example, I recently had a case involving
a car-worker and at his workplace there
had been a promise, for a defined period,
of no further redundancies in return for no
inflationary increases in wages. All these
types of deals impact on the assessment of
damages and should be considered when
preparing the schedule of loss.
Of particular interest as well is the entitlement
to pensions that employed Claimants might
have enjoyed. The number of employers,
including the state, who offer defined
benefits/final salary pension schemes, (ie
where the pension is assessed with reference
to final salary and the number of years
worked), which are almost invariably more
valuable than defined contributions schemes
(ie where the employer pays a percentage
of the employee’s salary to build up a cash
pension fund for retirement), is declining.
This means that the quantum of pension
losses suffered by Claimants is likely to be
reducing. A recent survey (January 2009)
by the National Association of Pension Funds
concluded that even those companies that
were currently offering defined benefits’
pension schemes might well have to stop
within the next few years as the burgeoning
cost of these schemes escalate. The fall in
investment values and returns on capital
generally, combined with the longer life
expectancies that we are currently enjoying,
mean that these pensions are increasingly
becoming prohibitively expensive. The only
consolation for Claimants in this regards is
that the older state retirement dates that are
being phased in (see www.thepensionservice.
gov.uk.co.uk), means that the multipliers
for their loss of earnings is increasing even
though the multipliers for their loss of
final salary pension schemes benefits are
decreasing!
As ever it is all about the good news and
the bad news. Clearly the bad news is that
Claimants will have to make allowance for
the downward impact of the credit crunch on
the assessment of their damages. The good
news is that the schedules of loss cannot be
properly put together without the input of
us professionals and we will need to think
carefully of all the wider implications of the
troubled times in which we currently live.
John Frenkel
John is the senior partner of Frenkels
Forensics Chartered Accountants, a London
based forensic practice, who this year are
celebrating their 30th anniversary. For more
information please visit www.frenkels.com.
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