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

Chipping away at access to justice Features

Levels of discord and agitation amongst those expressed by
providing publicly funded legal advice and
representation appear to have increased daily
providers generated
by self-interest or 14 ‘OUTSIDERS’ - MAKING AN
IMPACT AT THE BAR?
since the publication of Lord Carter’s review of are they founded in It is becoming increasingly common for
legal aid procurement in July 2006.1 A disparate genuine fear about barristers to examine the way in which
group of legal aid providers have been united in the impact the their sets are run.
With so much competition at the
their opposition to the radical proposals for reforms could have Bar, maintaining and enhancing the
reform. Groups representing private practice on the ability of the reputation of chambers is vital.
and the not-for-profit (NFP) networks have found most vulnerable in
By Anil Shah, Managing Director, LPA
a common cause and the Law Society, hardly a society to access Legal Recruitment
bastion of radicalism, is acting as the front for justice?
the What Price Justice? Campaign.2

Most providers suggest that the Lord Carter’s

An independent
view
MICHAEL MACNEIL, 16 MEDIATION’S
FAME
NEW CLAIM TO

approach threatens to leave thousands without
legal representation, and therefore could
deny them access to justice. One of the few
organisations to publicly welcome the proposals
has been the Bar Council.3 But even this
welcome is accompanied by caveats asking for
further appraisal and consultation prior to the
introduction of further competition.4
Emotions are running high, but are the concerns
Policy Director -
Legal Action Group
This article
attempts to answer
that question from the perspective of the Legal
Action Group (LAG): a national charity committed
to improving access to justice, particularly for
the vulnerable and socially excluded. LAG does
not represent any particular interest
group: our concern is with the quality
and access to justice for the users and p.6
In the last five years mediation has
grown in popularity in all areas of the
law, hailing from the introduction of and
amendments to the Civil Procedure
Rules, and case law that urges
consideration of the process, such as
Dunnett v Railtrack [2002], Halsey v
Milton Keynes NHS Trust [2004] and
Birchell v Bullard [2005]
By Professor Karl Mackie, Chief
Executive, CEDR

36 RUNNING A BUSINESS
Barristers are under pressure at
The National DNA Database: crime solving tool the moment, for a wide variety of
reasons. We complain vigorously about

or violation of civil liberties? government interference in the funding

By Sir Bob Hepple QC, FBA, Emeritus
Master of Clare College and Emeritus
Professor of Law, University of
Cambridge
DNA profiling has had a dramatic impact on
the detection and prosecution of crime. But this
rapidly developing technology has also given rise
to many concerns, for example the indefinite
retention of DNA samples from those who are
not charged or are acquitted; the irrevocability
of consent given in fraught circumstances by
victims and witnesses; the presence of biases
towards particular groups such as young males
and black ethnic minorities; and the possibility of
revealing sensitive personal, medical or familial
information.
Where does the proper balance lie between the
right to privacy and the need to fight crime?
Are we being turned from a nation of citizens,
presumed to be innocent, into a nation of
suspects? Subtle, but important, changes are
taking place in the relationship between citizens
and the state. Yet there has been little public
debate on these issues either inside or outside
parliament.
The lack of data on public attitudes to issues
such as these was recently highlighted by the
House of Commons Select Committee on Science
and Technology.1 There have been calls for a
full public debate on the collection and use of
bioinformation by the police, particularly on the
uses of the National DNA Database (NDNAD).
2 In response to these concerns,
the Nuffield Council on Bioethics p.37
has established a Working Group to
of litigation, and significant changes
in the rules governing our profession,
but one of the major reasons for
the pressure might be just plain bad
management
By Bill Braithwaite QC, Head of
Exchange Chambers
News
p.20 Government plans threaten to leave
thousands without legal aid advice
p.21 ICLR to Sponsor New Legal
Research Award
Editor: Nigel Simmonds
0870 766 2715
email: info@barristermagazine.com
Publishers: Media Management Corporation Ltd
Publishing Director: Derek Payne
Design and Production: Alan Pritchard
Cambridge Printing Park Tel: 01223 423000
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g The Bar Standards Board strategy
The Bar Standards Board launched its strategy on 20th November 2006. It is the result of considerable
thought and consideration within the Board about the values the profession should espouse, the values
that it should seek to promote within the profession and the challenges that face it. It is also the
Board’s first opportunity to get itself known as a new body in the Bar’s world.
The Board was established following Sir David
Clementi’s recommendations that the Bar
Council should separate its regulatory and
representative functions. The Bar Council
has delegated its regulatory functions to the
Board. The Board comprises 15 members
– 8 barristers, 7 lay appointed on merit.
Its chair is Ruth Evans, a lay person with
considerable experience in consumer affairs
and professional regulation.
The Strategy document is the key to the
Board’s approach to the challenges facing
it. It sets out first the Board’s mission. It
then looks at the values it wishes to promote
within the Bar and the values it proposes to
espouse as a regulator. It then considers the
challenges and sets five strategic objectives
for meeting them.
The Board’s tasks cover the following areas:
the education and training requirements for
practice at the Bar, the rules of conduct
governing barristers, monitoring compliance
and handling complaints and discipline.
The Board has decided that its mission is to
be recognised as promoting and safeguarding
the highest standards of legal education and
practice in the interests of clients, the public
and the profession. This shaped much of our
approach the strategy. It is what the Board
is about.
Next the strategy sets out the crucial values
that the Board wishes to promote for the Bar.
These are:
1. Access to Justice – barristers
provide a vital service for those
needing advice or representation;
2. Independence – the courts
and clients need advice which is
impartial;
3. Integrity – again, courts and
clients need to be able to rely on
the absolute integrity of those
advising and appearing in court;
4. Quality and value for money
– the Bar has always prided itself
on its excellence and this must
be maintained at a cost which
represents value for the consumer;
5. Diversity – the profession needs
to reflect the diversity of the
society it serves
6. Redress – where things go
wrong, they should be put right.
The strategy then sets out the principles by
which the Board will work. It will
1. Work in the public interest –
placing the public interest at the heart
of its work.
2. Be independent and evidence-
based – ensuring that decisions
are reached on the basis of the best
available evidence.
3. Be transparent – with reasoned
decisions and processes open to
scrutiny
4. Be accountable for its
performance and expenditure
- accounting for progress against the
goals it sets and working in a way
which is cost-effective..
5. Consult and work in partnership
with others - consulting interested
and relevant parties before adopting
any policy.
6. Operate risk-based regulation –
concentrating on those areas where the
public is most at risk and not imposing
disproportionate regulations.
7. Encourage diversity – promoting
and adopting processes and procedures
that are free from discrimination.
8. Value our Staff.
The main challenges facing the Board in a
changing environment are considerable. The
Board felt that they included:
1. Establishing its credibility as an
independent regulator of barristers.
2. Devising and introducing targeted
quality assurance processes.
3. Addressing concerns on competition
grounds about restrictions in the profession’s
rules and also the Alternative Business
Structure r e g i m e
proposed in the Legal Services Bill.
4. Ensuring that its complaints and
disciplinary procedures are efficient, provide
transparent and fair outcomes, protect the
public and carry public
confidence.
5. Improving access to the profession from
a representative and diverse cross-section of
society.
the barrister 03
Based on these we have developed objectives
under the following headings:
Protecting Consumers
Under this heading, the Board will be
developing tools to identify risk and assure
quality of barristers’ performance. It will
also be reviewing its complaints system. It
will be important to introduce mechanisms to
identify areas of risk and poor performance
and to prevent these turning into complaints
of misconduct. Where complaints do arise,
we need to be sure that our complaints
procedure is fair to complainants and
barristers, provides swift redress, appropriate
sanctions and holds the confidence of all
stakeholders.
We have, we believe, a good complaints
procedure but there is always scope for
improvement and, to this end, our new
Complaints Commissioner, Robert Behrens, is
conducting a strategic review of the system.
The Board will be looking to implement his
recommendations in the course of 2007.
Access to Justice
Our objective is to promote accessible
and flexible high quality legal services in
a competitive market. As part of this we
are carrying out research into the attitudes
about the perceptions of clients and
barristers about the way in which barristers’
services are provided and in the light of
this be reviewing the Code of Conduct. At
the same time, we are looking at our rules
governing public access.
Independent Regulation
There will inevitably be suspicion that the
Board will be little more than a new version
of the old system. It will be a major task
to win the confidence of stakeholders that
we will be regulating independently and
according to best practice. We believe that
the principles we have espoused will go a
long way to accommodate these concerns.
We will be establishing a Performance and
Best Value Committee to ensure that we
adhere to our principles and run our work
efficiently and economically. We have also
established a Consumer Panel to provide us
with advice from the point of view of users
of the Bar. That panel has already met and
promise to be challenging and to provide
some valuable, informed views. We will also
 04 the barrister

be developing a communications strategy

which aims to project our identity as a new,
modern independent regulator. Above all,
however, it will be way in which we conduct
our consultations and our rule making that
Call any of the countries
will determining our success here. below for the price of a
Excellence and Quality UK national call
This is a central aim. The Board must maintain
and improve the quality of the Bar. This aim
covers our education and training work. We Right Here! Right Now!
will be reviewing the Bar Vocational Course
and the Training Regulations to ensure that You can begin using this service immediately.
entrants to the profession have the right level
of training to offer services to the public and 1) Just Dial the relevant access number for the
employers. This will be particularly important country you wish to call (See below)
in the new environment. We need to ensure
that the courses provide the skills needed by
2) At the prompt dial your international
barristers in the 21st century and is a course destination number in full (including 00)*
that attracts outstanding candidates. 3) That’s it ! you’re connected.
In addition we will be looking at mechanisms to
Access number 0870 794 8065 (weekdays)
assure the quality of barristers’ services. This
has attracted a substantial amount of attention Access number 0844 570 8065 (weekend 5p)
in recent days and it should be stressed that
the Board’s thinking is at its earliest stage. Algeria; Andorra; Antartica; Antartica, Mobile; Argentina;
There will need to be full consultation with the
Argentina Buenos Aires; Armenia; Athens; Australia; Austria;
Bar and other stakeholders before anything is
implemented. Nevertheless, there is a clear Bahamas; Bangkok; Belgium; Bermuda; Bolivia; Brazil; Brazil Rio
demand, stemming from the Carter review De Janeiro & Sao Paulo; Brunei; Brunei, Mobile; Bulgaria; Canada;
for such mechanisms to be developed. The
Board will need to develop a scheme which
Canada, Mobile; Chile; China; China, Mobile; Christmas Island;
is sensitive to the different needs of the Bar Christmas Island, Mobile; Cocos Island; Colombia; Colombia,
and its various clients. It will need to be Mobile; Costa Rica; Costa Rica, Mobile; Croatia; Cyprus; Cyprus,
proportionate and risk-based. It is, however,
one of our early priorities.
Mobile; Dominican Republic; Finland; French Antilles; Georgia;
Panama; Paraguay Asuncion; Iceland; Indonesia; Indonesia
Diversity Jakarta; Ireland; Israel; Israel, Mobile; Istanbul; Jamaica; Japan;
The Board’s aim here to develop a strategy
to ensure that consumers have access to a Korea South; Korea South, Mobile; Kyrgyzstan; Liechtenstein;
Bar reflecting the diversity of our society. Luxembourg; Macao; Macao, Mobile; Malawi; Malawi, Mobile;
We need to begin this by carrying out some Malaysia; Malaysia, Mobile; Mariana Islands; Mariana Islands,
proper research about the profile of the Bar to
see where work needs to be done to promote Mobile; Mexico; Mexico City; Mexico Mexico City; Mexico Mexico
this diversity. We also wish to continue the City, Mobile; Mexico, Mobile; Monaco; Mongolia; Mongolia, Mobile;
Council’s work in promoting recruitment and Moscow; New Zealand; Nigeria; Nigeria Lagos; Peru; Peru Lima;
career development procedures, which will
guarantee that barristers’ professional careers Puerto Rico; Russia; Russia Moscow; Russia Moscow, Mobile;
develop on merit and without discrimination. Russia, Mobile; San Marino; San Marino, Mobile; Santa Cruz; Saudi
Arabia; Serbia and Montenegro; Singapore; Singapore, Mobile;
These aims present a challenging programme.
The Board is well aware that its decisions will Slovenia; South Africa; Switzerland; Taiwan; Taiwan, Mobile;
not always be popular, but we want to be sure Thailand; Thailand Bangkok; Thailand Bangkok, Mobile; Thailand,
that our process for reaching them is open, Mobile; Turkey Istanbul; Uruguay; US Virgin Islands; US Virgin
transparent and carries confidence. Even if
individuals disagree with our decisions, we Islands, Mobile; Venezuela; Zambia; Zambia, Mobile; Zimbabwe;
hope that the reasons for them will be clear Ghana; Gibraltar; Greece; Guadeloupe; Guam; Guam, Mobile;
and understandable. This approach will help
Hong Kong; Hong Kong, Mobile;
us in our ambition to be a successful front-
line regulator in the new environment and to
satisfy our stakeholders – the Bar, consumers, Visit:
the new Legal Services Board – that regulation
is safe in our hands.
www.cheapcallsdirect.co.uk
for many more destinations
Mark Stobbs, Director, Bar Standards Board
 06 the barrister

potential users of legal services.
p.1
At the outset it is important to
be clear about LAG’s agenda: we
want sustainable legal and advice services.
We believe that the ability to access justice is
a fundamental right in a democracy. As such
personal income, wealth and characteristics
should not matter one iota. But this is no
more than a theoretical right unless the state
enables those of modest means, the vulnerable
and others that society disadvantage, to gain
to quality. But sadly, all is not as it seems.
The major problem with the review is
its politically convenient starting point:
budget pressures result from ‘…systemic
weaknesses in the way legal aid services
are procured and therefore inefficiencies
in the way those services are delivered’. 9
Of course, improvements to efficiency are
possible but it is also vital to address the
inadequacy of current budget provision.
LAG’s mission statement, Access to justice:
A
Carter’s review was to make immediate
savings and, crucially, introduce levers to
enable a major reconfiguration of services.
The proposals beg many questions. Will the
market-based approach deliver a sustainable
supply base? Will firms merge to form larger, N
more efficient organisations? Will this happen
at the right time? Will there be new entrants
e
to the market? Or, will cartels dominate M
the market? The claim that the proposals
will damage an already precarious level of
provision is backed by extensive research. 12

W
access to the justice system. Of course, we agenda for action, 10 makes it clear that This may be the intention, but the difficulty
understand that equal access to justice is an delivering sustainable legal and advice with the blunt approach suggested and the
aspiration; and one with associated financial services requires a combination of political unrealistic timetable is that it allows only
costs. and resource decisions; not a blurring of one opportunity to restructure provision. Let
the picture by over-focussing on one factor us be clear, this is a major gamble with
y
LAG recognises that the current system is within the system. an essential service for huge numbers of
far from perfect and that change as well as people. w
additional money is required. We consider all Gambling on the market w
proposals by asking whether they bring our Fixed fees – a perverse incentive h
aspiration for equal access to justice nearer. Despite laudable written aims, the Carter
If they do, we support them: even if this review has produced a management Apart from being sceptical of applying
means disruption for those working in the accountant’s approach towards provision. It market-based pressures to essential services B
system; many of whom share our ethos. Our is not designed to meet the needs of those (look at what is happening to the NHS), it is f
view of the Carter proposals has been framed who find it difficult to access justice. At best suggested that the antidote to inefficiency y
by analysing the risks associated with the it seeks to redistribute funds from criminal is the introduction of fixed fees. With no
u
proposals: how these may affect the provider defence services to other categories but the additional money and inadequate fee levels
base and, therefore, the availability of legal evidence given for rising costs in criminal then there can only be one m
advice and the quality of that advice. defence services are much more complex conclusion: corners will have to B
than indicated. For p.8
Carter: the wrong starting point example, there is
no recognition of: …
Lord Carter’s report concerning legal aid targets to bring more O
procurement is the latest in a long line crimes to justice; the s
of initiatives predominantly focussed introduction of new
o
on controlling the legal aid sector. In the evidential provisions
last three years alone, the Legal Services regarding hearsay C
Commission (LSC) has published no less than and previous
19 consultation papers. 5 Indeed, the only misconduct; re-trial "
constant for the legal aid system has been following acquittal
d
change and the incremental development of in certain serious
control mechanisms by the LSC. cases; increasing u
s e n t e n c i n g w
A cursory reading may produce some powers; increasing w
agreement with Lord Carter’s objectives. d i s c l o s u r e
t
Surely we all agree with the report’s summary obligations of
of the review objectives as, ‘…securing value defendants; and
for money without compromising quality increasing police "
and access to legal advice.’6? Reading the investigative b
Carter report alongside the LSC/ Department powers. The
t
for Constitutional Affairs (DCA) consultation review should
paper Legal aid: a sustainable future 7 , and have responded w
the LSC’s earlier strategy, Making legal rights to research
a reality, 8 makes it is clear: fewer, larger, highlighting the
A
providers are seen as the way forward. The implications of
plan is to phase market restructuring with crime and policing i
the eventual aim of competition based on policies on the legal s
quality, capacity and price. aid budget, over
which the LSC had
If it would work, who could disagree? Do we not control, but it Y
not all agree with the need to demonstrate did not. 11 b
value for money? LAG, as an organisation
'
campaigning for excellence in our publicly Pessimists would
funded legal services, would welcome argue that the t
initiatives to enable continual improvements intention of Lord d
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 08 the barrister
be cut. This will result in lower
p.6 quality services and, an economic
incentive for providers to take on
the easier cases to the detriment
of those in most need. It is perverse that,
however inadvertently, providers will be
motivated to act for relatively articulate and
educated clients, with cases capable of early
resolution, rather than those with more
complex needs.
Fixed fees are likely to impact
disproportionately on a wide cross-section
of groups. For example: those residing in
rural areas, black and minority ethnic (BME)
communities, people with mental health
issues, disabled people; all those who are
seeking to get their voice heard, often against
decisions made by state institutions.
Leaving aside this crucial error of basing
policy proposals on the mistaken notion
that a homogenous BME community exists,
even the evidence available indicates that
the move to fewer, larger, providers would
disproportionately impact on BME controlled
firms 13 and the client groups they serve.
14 Although a one-size-fits-all approach to
BME communities will not work 15, even
within the review’s restricted framework,
the proposals are both disproportionate and
unjustified.
It is difficult to achieve justice for those with
additional needs within a rigid fixed fee
regime. Obviously, it takes longer to deal with
people with issues that require adjustments
to a standardised approach: for example,
communication needs. There is a need for
sufficient flexibility in the procurement
system and funding formula to cater for
particular communities and needs.
Increasing pressure to drive down costs
must affect quality. The economic incentives
will be for providers to deal with cases as
quickly as possible, and with inadequate
case funding, it is difficult to see how quality
can be maintained, yet alone improved.
This is particularly disappointing as many
in the sector have engaged in a drive to set
standards and improve the quality of advice
provided. It is also possible to anticipate that
peer reviewers will empathise with those
who are trying their best to provide a service
with inadequate funding. Gradually, lower
standards among the profession may become
acceptable.
Despite our scepticism and the opposition
of many providers, it is safe to assume the
market-based approach will not be jettisoned.
The process of transition is vital and we have
recommended that, as an absolute minimum,
there is a need to:
• set a more realistic timetable for
reform – one that allows sufficient time
between phases for further research,
impact assessments and revisions to the
proposals;
• adopt an inclusive approach, connecting
local service providers, relevant
government departments and, crucially,
involving service users, rather than the
limited mechanisms for stakeholder
engagement proposed by Lord Carter. 16
This would greatly improve the reform
process; allow for ongoing incremental
change at a suitable pace; and, from our
perspective, enable impact monitoring on
different communities.
Conclusion
During the last few months government
ministers have made speeches that are
replete with references to the vital nature
of the legal aid system, likening free access
to justice as integral to the Welfare State as
the NHS or state education 17. The speeches
also make it clear that fixed fees will be
introduced. Reading between the lines, the
rationale appears to be that with the Treasury
refusing to release more money then reform
is necessary to ensure that some type of legal
aid survives. But what form will provision
take, and what services will be available?
The Carter review objectives were to ensure
access to justice, deliver greater value for
money and a sustainable supplier base. At
the time of writing the government’s response
to the consultation process is imminent.
Equal access to justice requires a political
will to make it happen and we can but
hope that there will be significant changes.
Otherwise history will see the Carter reforms
as yet another mechanism that, perhaps
unintentionally, chipped
away at the ability of
citizens to access quality,
publicly funded legal
services: a key element
underpinning our version
of democracy.
Michael MacNeil
Policy director –
Legal Action Group
1Legal Aid – A market-based approach to
reform, Lord Carter’s Review of Legal Aid
Procurement, July 2006
2Visit: www.lawsociety.org.uk
3What lies ahead, in Solicitors Journal Guide
to the Bar, Solicitors Journal, Vol 150 No 41,
27 October 2006
4Counsel, November 2006, p6
5Visit www.legalservices.gov.
6See note 1, p21, para 35
7CP13/06, July 2006, available at www.dca.
gov.uk
8March 2006, see: www.legalservices.gov.uk
9See note 1, p3, para 6.
10See www.lag.org.uk
11See Demand Induced Supply? Identifying
cost drivers in criminal defence work, a
report to the Legal Services Commission,
Professor Ed Cape and Professor Richard
Moorhead, University of the West of England
and Cardiff University, July 2005.
12Legal Aid Reforms Proposed by the Carter
Report – Analysis and Commentary, LECG
Ltd, 25 September 2006.
13Draft impact assessment – criminal
proposals: regulatory, equality, rural, legal
aid and competition, p10, available at: www.
dca.gov.uk.
14Fifth Annual Diversity Report 2005, LSRC
Research Paper No. 13, Legal Services
Research Centre, LSRC, September 2005.
15See the Community Legal Service: access
for all? Consumers’ Association, 2000, p33.
16See note 1, recommendations 6.3 to 6.5,
p16
17For example see the speech by Lord
Falconer on 7 November 2006, Legal Aid
– The Way Forward, at www.dca.gov.uk/
speeches/
lawtel_ihl_master2 11/23/06 4:24 PM Page 1

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 10 the barrister
Pathways To The Profession
By Professor Nigel Savage, Chief Executive of The College of Law
“
I know from personal experience”
Cherie Booth QC said recently,
“how difficult it is to enter the
profession from a non-privileged
background. The problem was not
just lack of money although this was
a big obstacle, but also the lack of contacts
– family or friends who could help to find
you work experience and mini-pupillages.”
As we know, she made it and so did Baroness
Kennedy. But how many excellent would-be
barristers have fallen by the wayside? Can
the Bar Council, Barristers’ Chambers, Inns
of Courts do much more than they already
do to help?
Thirty years or so years younger than Cherie,
Rothna Shah, a very bright student from Leith,
is in her third year of a Law degree course at
Edinburgh University. The secondary school
she attended is in a poor district of the city
and she says it was lucky to have 30 students
in its sixth form of whom perhaps 10 went to
university. Her father works hard to support
his eight children, running a small business
delivering Asian food and other materials.
But she admits: “Although I have always
wanted to be a lawyer, and my parents have
always been ambitious for me, I doubt if I
would have made it to this university without
the Pathways to the Profession scheme
run by the university and sponsored by the
Sutton Trust.”
She says: “Through Pathways I was able to
attend various workshops and presentations
which better informed me of what life as
a lawyer would be like. I was also given
links to mentors and tutors every time I
needed advice and information. I have also
been given some very useful lawyer contacts
including an in-house lawyer. Without all
this help I don’t think I would have stayed
the course.”
The Pathways scheme, so far unique to
Scotland, has been running for a few years
and targets students from non-professional
families who will often be the first in their
family to go to university, when they enter
their sixth forms and encourages them to
consider a legal or medical career. If they
do they are given mentors, in the form of
other further advanced law students, careers
advice and introductions to law firms and
Chambers. Over the last two years 176
Pathway students have entered the university
and of these 103, including Rothna, are
studying Law. They still have formidable
obstacles to overcome, not least how they
are to support themselves while they do their
training. Rothna says somehow or other she
will find the money.
Last year the Sutton Trust, set up in 1997 to
improve social mobility in the UK, published
research on the educational backgrounds of
the UK’s top solicitors, barristers and judges.
This found that three out of four top judges,
more than two-thirds of top barristers and
more than half the partners at leading law
firms had attended private schools which
educate just 7% of the population. Recently a
Bar Council survey found that although there
were more Bar students (38%) from ethnic
minority backgrounds and 86% came from
universities other than Oxbridge, a very large
proportion (30%) are saddled with debts of
over £20,000. A survey by The College of
Law of 1865 of this year’s students, mainly
on Legal Practice and Bar Vocational courses,
found that 25% of them expected to have
similar debts by the time they finished their
course. As the Government has found with
tuition fees, students from working class
home are more averse, understandably, to
running up large debts. And as the Bar
Council acknowledges, they have reason
to be cautious, since there are not nearly
enough pupillages to guarantee them work
at the Bar.
Coming from a not too privileged background
myself and having left school at 16, I have
always wanted to do something to help.
The College of Law is an excellent base
for this, offering training for barristers and
solicitors, and being a charity, unlike some
of its competitors, it is not concerned with
shareholder values. With some 4,000 full-
time students, we are the largest trainer
of would-be solicitors and have to be a
broad church in terms of admitting them.
Furthermore we have oversubscribed week-
end and evening courses for part-time
solicitor students on five sites across the
country and have for the last 10 years run a
Law degree correspondence course with the
Open University. In the forefront of e-learning
we aim to extend ourselves more widely in
the future.
But I have always known there was more
we could do. In 2001 I attended a meeting
with Cherie Booth and Sir Peter Lampl, the
entrepreneurial philanthropist who set up
the Sutton Trust, to work out how we could
attract more students from poor backgrounds
to the Law. The result was one of the first
summer and winter schools to introduce
students from inner London boroughs to a
possible career in the Law via a winter school
at the London School of Economics followed
by a summer course at the College.
Then last year seeing the success of the
Edinburgh scheme, which was singled out
for a best practice award by Universities
UK, the College decided to invest £1.25m
over five years and to put its money where
its heart is. This will enable the Pathways
Scheme to be set up and to be targeting
schools around each of our five centres – in
London, Birmingham, Guildford, Chester and
York - working with universities in those
parts of the country which will be selected
on the basis of their commitment to widening
participation and the reputation of their law
course.
The scheme is aimed at future solicitors
and will be managed by the Sutton Trust
which is putting a further £250,000 into
the project. By 2010 we estimate that we
could be admitting 750 Pathways students
each year. Most of these will have come from
schools with a large proportion of children
on free school meals and which do not
send many students to university. Assuming
about 6,000 Law students continue each
year to start training contracts as solicitors,
this works out as a significant 12.5% of the
total number enrolling each year with the
Law Society.
We shall be asking leading law firms to
help us in terms of meeting these students,
providing mentors, offering them work
experience and considering them for training
contracts. For those students wanting to
become corporate or commercial lawyers,
the financial obstacles are not so formidable.
We are already working with a number of
top firms (incuding Allen & Overy, Clifford
Chance and Linklaters) on firm-specific LPCs.
The partnerships we have with these and
other firms mean that all their postgraduate
course fees are paid for.
When it comes to students keen to do Legal
Aid work we have a similar scheme with
the Legal Services Commission, which will
provide some help with course fees. We still
need to find some form of funding help for
those students attracted to the universities
through the Pathways scheme who wish
to work for High Street and other small
firms who cannot fund them through their
courses.
The Pathways scheme will cover Bar
students. But they could be lost to the Bar
if the profession does not respond to them
in the same was as solicitor firms are likely
to do. We will need help from Barristers
Chambers. We shall be asking them if they
would consider providing mentors, offering
Pathway students special pupillages and
organising events, perhaps sponsored by
the Inns, where they can meet barristers,
benchers, judges and law lords. Perhaps
the Inns could look favourably on them for
 the barrister 11
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 12 the barrister
"Quashing convictions" - an abuse?
By James Welch, Legal Director, Liberty Human Rights
“The Home Office consultation paper “Quashing Convictions – Report of a review by the Home
Secretary, Lord Chancellor and Attorney General” seeks views on how, but not whether, section 2
Criminal Appeal Act 1968 should be amended “to ensure that the plainly guilty would not have
convictions quashed because of a procedural irregularity, where the Court of Appeal were satisfied
that the appellant committed the offence.”1
L
iberty’s view is that the section 2
should not be amended, indeed,
that in making its proposals
the Government is seeking
to undermine an important
constitutional safeguard.
Before its amendment by the Criminal Appeal
Act 1995 section 2 provided that an appeal
should be allowed if (a) the conviction was
unsafe or unsatisfactory, (b) a wrong decision
had been made on any question of law, or
(c) there was a material irregularity in the
course of the trial, subject to the proviso that
the Court could dismiss an appeal if it was
satisfied that no miscarriage of justice had
occurred.
The Royal Commission on Criminal Justice
considered the section in its report published
in 19932. It concluded that the Court of Appeal
seldom distinguished between “unsafe” and
“unsatisfactory”, that there was considerable
overlap between the three paragraphs and
that the proviso was arguably redundant.
The majority recommended replacing the test
with a simple test, whether the conviction “is
or may be unsafe.”
The 1995 Act gave partial effect to the
Commission’s recommendation. Section 2
now provides that the Court of Appeal should
allow an appeal against conviction “if they
consider that the conviction is unsafe.” At
the Bill’s second reading the then Home
Secretary, Michael Howard, stated that the
new test “clarifies the terms of the existing
law” and “restates the existing practice of the
Court of Appeal.”3
Notwithstanding, the paper evidently
considers that the 1995 amendment was
meant to change the test and that the courts
have failed to recognise this. It points to
divergent authority from the Court of Appeal
on the effect of the amendment. In the 1997
case Chalkley4 Auld LJ expressed the view
that the amendment had made an important
change to the test to be applied by the Court
of Appeal. While noting that this would
be subject to whatever the courts made of
Article 6(1) once the Human Rights Act came
into force, he stated that the Court now
had “no power […] to allow an appeal if it
does not think the conviction unsafe but is
dissatisfied in some way with what went
on at the trial.” By contrast, in Mullen5
Rose LJ, considering the Court entitled to
refer to Hansard in view of the ambiguity of
the term “unsafe”, echoed Michael Howard
in concluding that the amended form of
section 2 was simply intended to “restate
the existing practice of the Court of Appeal.”
Lord Woolf CJ endorsed Rose LJ’s approach
in Together6.
In the light of these and subsequent cases the
paper concludes that the Court of Appeal’s
view is now settled and that the Mullen
interpretation has prevailed. The concern
that the paper addresses is that this permits
the Court to quash a conviction, in the words
of the Mullen judgment, “notwithstanding
that there is no criticism of the trial judge or
jury, and no challenge to the propriety of the
outcome of the trial itself.”
The paper cites the report of the Royal
Commission in support of its argument that
allowing an appeal in these circumstances
does not serve the public interest. It is,
however, somewhat disingenuous to claim
the Commission’s support in this way;
the authors of the paper are applying the
Commission’s conclusions to circumstances
that it did not contemplate.
In its report the Commission considered a
range of broad sets of circumstances that
may lead to an appeal against conviction.
Of these the two that are clearly relevant to
the paper’s concerns are appeals founded
on errors at trial and those based on pre-
trial malpractice (such as the fabrication of
a confession or the suppression of evidence)
or procedural irregularity. The Commission,
no doubt rightly, took the view that similar
considerations applied in relation to both.
The majority view was that the Court of Appeal
should consider whether notwithstanding the
irregularity or malpractice the conviction was
safe. If so, the appeal should be dismissed.
If on the other hand the defect rendered the
conviction unsafe the conviction should be
quashed. Where the conviction might have
been rendered unsafe a re-trial should be
ordered.
The minority view, expressed in Professor
Michael Zander’s note of dissent, was that
there may be circumstances where an error
at trial, even though it might not render the
conviction unsafe, could justify ordering a
re-trial. As for pre-trial irregularities, while
these would normally give grounds for a
re-trial, the Court of Appeal’s role as the
guardians of PACE and its codes could make
it appropriate to quash a conviction outright
where there had been grave malpractice.
The majority responded that it was wrong
to punish police malpractice in this way. It
could not be “morally right that a person
who has been convicted on abundant other
evidence and may be a danger to the public
should walk free because of what may be a
criminal offence by someone else.” It was
also illogical to give the Court of Appeal
the power to throw the case out where the
trial judge should merely have excluded the
tainted evidence under section 78 PACE.
Unsurprisingly, the paper adopts the majority
view, arguing that punishing the public by
quashing a conviction where there is strong
evidence of guilt brings the criminal justice
system into disrepute.
The problem with the paper’s reliance
on the report of the Royal Commission is
that the Commission does not appear to
have considered appeals where the issue is
whether the prosecution was an abuse of
process. Both Mullen and Togher were such
cases.
Consideration of the facts of Mullen is
instructive. In 1990 the defendant was
convicted of conspiracy to cause explosions.
Shortly before the events that led the police
to seek to arrest him he had flown with his
family to Zimbabwe. Some two months
later he was summarily deported from
Zimbabwe and was immediately arrested
on his arrival in the UK7. Only some time
after his trial did it become clear that, rather
than seek to extradite him, the British police
and intelligence services secretly encouraged
the Zimbabwean authorities to deport him
and had colluded in the deportation being
effected in such a way as to deny him access
to a lawyer. The British authorities had
thereby acted in breach of both Zimbabwean
and public international law.
It is in this context that Rose LJ made the
statement about the Court’s powers to quash

a conviction even where the appellant’s
guilt was clear. This was clearly a case
where the state’s actions were “so unworthy
or shameful that it was an affront to the
public conscience to allow the prosecution
to proceed.”8 Had the trial judge been
aware of the circumstances of the appellant’s
return to the UK he would have stayed the
proceedings as an abuse of process. If, as the
majority of the Royal Commission considered,
it is illogical for the Court of Appeal to
exercise powers in respect of deficiencies
in a prosecution that are not available to
the trial judge, it is equally illogical to deny
the Court powers to address an abuse of
process that are available to the judge at
first instance. (In Togher, by contrast, the
Court was not persuaded that in the light of
subsequent events the prosecution was an
abuse of process and the appeal failed.)
Liberty’s concern is that the consultation
paper is a stalking horse. Once the Court of
Appeal’s power to quash a conviction outright
where there has been serious malpractice on
the part of state authorities is removed, the
next step will be to take that power away
from the courts of first instance. The power
to stay proceedings as an abuse of process
is an important constitutional safeguard. It
must not be restricted or removed.
the barrister 13
The current test under section 2 has the 1 Quoted from the Partial Regulatory Impact
benefits both of simplicity and flexibility. It Assessment.
rightly permits the Court of Appeal to allow
convictions to stand where there has been 2 CM 2263, 1993
an irregularity that clearly would not have
affected a jury’s decision. Importantly, it 3 HC Debates 6th March 1995, col. 24.
has allowed the Court to assimilate the test
of fairness under Article 6 (see Lord Woolf
CJ in Togher, endorsed by the House of 4 [1998] 2 Cr.App.R. 79
Lords in Forbes 9.) While we may take
issue with individual decisions of the Court 5 [1999] 2 Cr.App.R 143
of Appeal and the way that certain lines
of caselaw have developed (one thinks of 6 [2001] 1 Cr.App.R 33
appeals after a plea of guilty, an issue raised
by Chalkley and touched on in the paper), the 7 Surprisingly, the paper is unashamed about
framework, section 2, is sound. It does not referring to this as a “rendition”.
need amending.”
8 Lord Steyn in R v Latif [1996] 1 W.L.R.
104
James Welch is Legal Director of Liberty
9 [2001] UKHL 40

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 14 the barrister
‘Outsiders’ - Making an impact at the Bar?
By Anil Shah, Managing Director, LPA Legal Recruitment
I
t is becoming increasingly common
for barristers to examine the way
in which their sets are run. With
so much competition at the Bar,
maintaining and enhancing the
reputation of chambers is vital.
Whilst everybody can see the benefit of having
a defined marketing and business strategy, as
well as an effective administration, individual
barristers are often too busy with their own
practices to devote the required time to
defining and implementing strategic goals
of the set as a whole. In response to this
problem, there is a marked trend of sets
recruiting Chief Executive Officers and other
professionals to manage the business-side
of chambers. In some cases, the individuals
considered have business experience gained
from outside the legal sector altogether,
bringing with them a fresh and unbiased
approach to the management of the set.
Some sets, which have already taken the step
of recruiting from the ‘outside’, have exciting
success stories to tell.
Competitive advantage should be at the
forefront of chambers’ strategy. If you think
that you can rely on your traditional methods
of delivering services, or your flexibility on
price, then think again! This is what most of
your competitors are also thinking, and with
the changes facing the legal profession as a
whole, and the Bar in particular, you’ll need
to come up with a smarter strategy in order
to maximise the opportunities that present
themselves and to avoid being left behind.
So how can you create a competitive
advantage?
Each Set has to formulate a unique strategy
that is right for them. Making the best use of
resources, principally people, is the starting
point. Members of Chambers will on an
individual basis undoubtedly exhibit a variety
of skills such and qualities such as technical
ability, leadership or commercial acumen;
but the strategy has to harness all those
skills so that chambers benefits collectively
from their timely deployment. The person
ultimately responsible for executing the
strategy has to be able to get members to
adapt and evolve with the changing market
place so that they work together, whenever
appropriate, to drive the business plan
forward and enhance chambers’ standing.
The implementation of the Legal service
Reform as set out in the Clementi report
encourages increased competition in a way
that has never been seen before and makes
this approach important than ever.
A Chief Executive will typically take control of
Chambers strategy. Their main objective will
be to increase the bottom line year on year.
Ann Buxton, one of the pioneering CEOs to
make an impact at the Bar comments:
“Strategy is very important. Historically
Chambers was pulling in different directions,
and it required a catalyst, in this case
the appointment of a CEO, to provide the
necessary focus. Once Chambers had
universally bought into the idea of having
a CEO with a defined business plan, then
we embarked upon a course of action that
created greater stability, an increase in
turnover (along with increase in individual
members’ billings) and an increase in the
quality of instructions from clients. Factors
contributing to the success of this approach
included changing the way in which barristers
and other staff worked together. Improving
the quality of support staff through a more
concerted recruitment initiative, along with
internal training for existing staff, have been
vital and we have seen a rise in the number
of graduates recruited for operational staff
whether they be specialised in HR, IT, or
marketing. This has led to a positive culture
change in Chambers with lower staff turnover
rates and increased productivity”.
Image and branding are essential aspects
on which to focus in order to differentiate
a set from its competitors and attract more
instructions. For the marketing to work,
however, members of chambers themselves
need to feel comfortable with the image
and brand representing them, so that they
embody it in front of clients rather than give
the impression that it was imposed on them
and that they are indifferent to it. Part of the
problem with having a strong brand is that it
is very easy for clients to spot inconsistencies
in it.
James Tuke, Head of Intendance Research
makes the following observations:
“Since 2002 we have been monitoring the
way in which chambers use their websites.
There is certainly evidence to suggest that
chambers employing a CEO, arguably being
more commercially aware, are more focused
on their marketing ‘message’ and hence see
an effective website as an essential part of
their communications strategy. As part of
research to be published next year we are
looking at the impact of the Government’s
Legal Services Reform on the Bar and early
responses suggest that Chief Executives are
also more open-minded to the changes that
now appear inevitable.”
The role of a CEO in chambers can vary from
set to set: from those who are more focused
on the management of the operational areas
of Chambers with less emphasis on strategy,
to those who are focused heavily on strategy
with full responsibility for the operational
areas as well. CEOs will typically report to
the head of chambers and will also sit on the
set’s management or executive committee.
Business planning is usually the responsibility
of the CEO and their success or failure can
be determined most starkly through a rise
in turnover accompanied by a decrease
in (or at least effective control of) costs.
Barristers who experience an increase in
their receipts and a downward trend on their
contribution to chambers are all too happy to
sing the praises of their CEOs and to assist
them in whatever way they can. Business
development skills are also very important.
To implement a comprehensive business
development strategy, all members should
be trained and then involved in marketing
themselves and cross-selling their clients.
This is where strong man-management skills
come into play. It takes strong leadership
to get people of an independent disposition

to buy into the idea of pooling resources for
their own, and the greater good.
Although not every set which recruits a
chief executive to run chambers has positive
experiences, it is can often be because of a
lack of awareness in chambers of how to
attract and select the best candidates, and
how to get the best out of them when they
take over. There are, however, now so many
examples of success stories of chambers
which have gone down the chief executive
route that the trend for hiring is experiencing
a notable upturn.
7 Bedford Row has benefited from having
taken the decision to hire their first CEO back
in 2001. Head of Civil, Derek Sweeting QC,
comments:
“The emergence of CEOs at the Bar is
essentially a consequence of the need for
professional business management in large
sets of chambers; clerking has become
a specialist function in itself which does
the barrister 15
not routinely produce the financial and Anil Shah
managerial skills necessary to run a multi- anil.shah@lpalegal.com /
million pound business. One of the key anil.shah@partnersandteams.com
benefits has been the introduction of fresh [dd: +44 (0)20 7269 6804]
ideas and initiatives; the Bar is now real Anil is Managing Director of LPA and heads
career option for those in management in up LPA Partners & Teams.
other professional services or commercial With over fifteen years' experience he enjoys
organisations." strong relationships with the major City, US,
regional and international law firms.
Modern CEOs at the bar will typically have
had a career in industry and/or have held a
similar post in a law firm. Few senior clerks
have made the transition to a CEO’s role as
yet, but there are signs that a new generation
of clerks is emerging and that they could
be the CEOs of the future. Ultimately, each
set must determine what skills it needs to
provide a solid platform for growth, taking
into account the skills it already possesses,
but also the challenges that lie ahead.

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 16 the barrister
Mediation’s new claim to fame
In the last five years mediation has grown in popularity in all areas of the law, hailing from the
introduction of and amendments to the Civil Procedure Rules, and case law that urges consideration of
the process, such as Dunnett v Railtrack [2002], Halsey v Milton Keynes NHS Trust [2004] and Birchell
v Bullard [2005]
By Professor Karl Mackie, Chief Executive, CEDR
W
hen it comes
to celebrity
defamation, be it
a cinema, sports,
political, music
or broadcast
personality involved, a dispute can take two
paths – one ends with a public airing in the
courts and the other with an out-of-court
settlement. The psychology behind both of
these may seem obvious – in one scenario the
injured party wants to ‘clear’ their name and
in the other, in this celebrity obsessed society,
they want to preserve what little valuable
privacy remains in their life. I believe that
mediation, where an impartial third party
helps parties in dispute negotiate a mutually
agreed settlement, is capable of achieving
both of these objectives while delivering other
benefits.
Defamation and mediation
In the last five years mediation has grown
in popularity in all areas of the law, hailing
from the introduction of and amendments
to the Civil Procedure Rules, and case law
that urges consideration of the process,
such as Dunnett v Railtrack [2002], Halsey v
Milton Keynes NHS Trust [2004] and Birchell
v Bullard [2005]. This is equally true for
defamation actions, where both celebrities
and certain professionals, such as in private
medical practice, can feel that their reputation
is their career. Cost and time considerations
similar to other legal actions come into play
for claimants and defendants as an incentive
to mediate, as well as concerns about cost
sanctions for refusal to mediate pre or post-
issue. Of course defamation has its own
unique psychological and litigation dynamics
too. Parties may want to clear their name in
public or stand up for rights of free speech or
privacy. On the other hand changes both in
compensation levels available and litigation
funding options can alter the cost-benefit
equation of taking an action through to full
trial. And lawyers, courts and mediators alike
may find that celebrity egos have a unique
perspective on negotiation techniques or
‘defamation jurisprudence’ (though of course
defamation actions extend into the world of
the ‘common man’ too).
The number of defamation cases in general
appears to be on the increase:
• One of the chief causes for an
increase in high profile cases is
the increasing internationalisation
of celebrity ‘products’, and the
pursuing of claims by celebrities
in the jurisdiction most favourable
to their case, for example the
successful suit of the Hollywood
actress Kate Hudson against the
National Enquirer’s UK edition in
2006. Other case examples in recent
years include Roman Polanski’s
action against Vanity Fair in London,
the Barclay Brothers’ claim against
News International (The Times) in
Paris and the Filippo Simeoni/Lance
Armstrong case in Rome.
• Another cause for a growth in
defamation cases is conditional
fees which are creating a growth of
non-celebrity libel cases (although
there is nothing to stop a celebrity
from benefiting from the use of
conditional fees with their legal
team too). A prominent reverse-
celebrity case was in 2003, when a
Bluewater retailer successfully sued
Victoria Beckham for slander over
comments on the authenticity of her
husband’s signature.
• Finally, ‘celebrity culture’ is a growth
industry - fed by a competitive media
industry, and the upsurge of instant
fame entertainment vehicles such
as Reality TV and the World Wide
Web.
Mediation can help public figures, musicians,
actors, sportspeople, presenters and MPs to
avoid the time, cost and general frustration
of a court trial and, importantly, it has a
settlement rate of around 80 per cent with good
mediators. Yet when it comes to celebrities
in defamation cases, I believe mediation’s
growing popularity has an overarching
theme and that is the balance of privacy that
mediation can bring back to a case that is, in a
major sense, already about the over-exposure
of an issue. Of course redress and public
acknowledgement by a defendant may also be
important for claimants. These too can be
a part of a resolution achieved in mediation,
by way of agreed public statements after the
mediation.
In both the Hudson and Beckham cases you
might argue that the defendant had more to
gain in reputation from participating in the
mediation process but disputes can reflect
negatively on both parties and make the
control offered by mediation very attractive.
Case study: Tabloid couple settle on a
better future
This year CEDR mediated a case for a well-
known celebrity couple and ‘tabloid regulars’
who were fed up with damaging reports in
the media and wanted to end the current
defamation on their own terms.

Crucial to the settlement was an agreement
between the parties on two elements of
privacy, which were how the current issue
could or could not be reported, and an
undertaking as to how future stories would
be considered. This agreement satisfied both
parties and was in addition to a financial
settlement. It is unlikely that a resolution
on these terms – within the parties’ control
- would have been possible in a courtroom,
where any decision would have been imposed
by a judge.
Mediation becomes glamorous
CEDR has handled an increasing number
of celebrity-related mediations involving
performers, celebrity businessmen, agents,
athletes and sporting bodies over the last
five years, which is a sign that the appeal of
mediation has genuinely spread far and wide.
I am the first to admit that initially there was
uncertainty around the mediation process
until lawyers and parties realised its low-
risk qualities as a process that only becomes
binding if and when the parties formally
the barrister 17
agree a settlement. Over time the process has can be highly useful. Very few people, let
become more de-mystified and its credibility alone celebrities, politicians, personalities or
increases as more lawyers experience its sportspeople, are ever completely comfortable
benefits and the relatively negligible cost for in a formal court or arbitration tribunal
their clients. environment, whereas being able to put the
parties at ease in a non-confrontational way
Chris Walsh, writing in World Sports Law is the key to a mediator’s role.
Review, November 2005, quoted my colleague
Eileen Carroll, Deputy Chief Executive of “Experience dictates that clients
CEDR, who was forthright in her view that overwhelmingly respond constructively to
celebrity disputes are eminently amenable that approach. Importantly, the mediator
to mediation in enabling a highly trained can create this environment by having a
independent mediator with a proven track ‘carte blanche’ with which to operate and
record to employ a specialist professional by not being restricted by rules of legal
approach to resolve deadlock negotiations. procedure or evidence.”
She pointed out that:
“The dynamics of a mediation suit celebrities,
and sportspeople in particular, who are Case study: Radio gaga
generally driven, competitive individuals Confidential and emotional defamation
who enjoy the fact that mediation enables dispute settles in one day
them to take back control of the process from Amount in dispute: £200,000
their lawyers and other advisors.” Time between referral and mediation:
5 months
In the middle of a conflict situation this control Length of mediation: 1 day
element should not be under-appreciated and Cost: £3,000

a ilyy Cases THE LAW REPORTS

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 18 the barrister
A dispute arose following a radio broadcast
that offended and upset a group of individuals
whose feelings were extremely volatile. The
parties were deeply entrenched and much
work was required by CEDR Solve to bring
the parties to mediation. This was a highly
emotional case and it was important to
assure the parties, particularly the individuals
concerned, of the complete confidentiality of
the mediation procedure. Although the parties
were unlikely to have any further contact,
the individuals affected wanted to know that
there would be no repetition, that changes had
been introduced by the broadcaster to prevent
similar situations arising and that damages (a
less important, but not insignificant, feature of
the dispute) would be paid.
Mediation was particularly suitable to this
dispute, as there were a number of personal
issues. The parties were motivated as much
by non-monetary solutions as by the purely
financial compensation. It was important for
the individuals to feel that they had been heard
and listened to, something not often possible in
'court-step' settlements. The mediator enabled
them to communicate their complaints, satisfy
themselves with the response and then eased
the parties into agreement over damages on a
group basis. A final settlement including costs
was reached after one day of mediation.
Why might mediation have the x-
factor?
Well-known people, from all fields, in a
celebrity-obsessed world have to protect their
reputations more than ever before. In addition
to the direct costs of legal fees and time arising
from disputes, the indirect costs to the value of
their ‘industry’ reputation can be even higher.
Mediation can provide a comfort zone within
which solutions can be explored in relative
legal safety – for example, where termination
packages, reputational property rights, or the
prospect of an apology are being explored.
Thus, a celebrity or their legal adviser may
think about the following, in exploring the use
of mediation:
• Mediation is adaptable but not
a ‘soft’ option
Mediation works in celebrity cases
because it can allow for ‘star egos’
and offers a non-confrontational
process run by a neutral. Mediators
can of course be chosen from specific
backgrounds if that is
important in a particular case; yet
whoever mediates, the
practised through encouraging an
objective and neutral process cannot
be underestimated. The psychology
of the process can offer ‘a day in
court’.
• Happy endings
It can look beyond the right and the
wrong of the matter to the parties'
long-term goals, often
solutions that are only constrained by
the imagination of the participants;
for example future contracts, joint
promotion and exclusivity deals – in
addition to privacy clauses.
• Mediation can add value to a
damaged reputation
In any situation where there are
strong personalities there will be
differences, tensions and problems
to solve, however reasonable that
personality may be. Having one’s
‘day in court’ can be very important
to a wronged party – but this must
be weighed against how the rest
of the world will perceive the
celebrity to appear. Being subjected
to cross-examination by a QC is
not (with the possible exception
of some politicians) an experience
many enjoy or come across well in.
Whereas in a confidential mediation
an agreement can help both parties
save face.
Case study: A sporting chance
Emotive defamation dispute
governance improvement
A well-known sports team manager was
alleged to have used abusive
towards the officials of the sport’s professional
organisation, in breach of its regulations. It
then refused to provide representatives for
any matches involving that team. In the
course of investigations the allegations were
repeated to the media. The manager claimed
that repeating the comments to the media was
defamatory. He claimed these comments had
thought a damaging impact both on his reputation and
in terms of other teams declining fixtures with
fairness his team because of his alleged behaviour.
The parties decided to approach CEDR Solve to
attempt mediation. This was a highly emotional
dispute and pre-mediation contact between
the mediator and the legal representatives of
the parties helped to create a calm climate
for the mediation, and to clarify and establish
procedures for the conduct of the mediation.
Parties agreed to have a joint initial meeting
finding
that enabled each side to see the emotional
importance of the dispute. The venting
of emotions was a necessary part of this
mediation.
Following a series of private meetings with
the mediator and each party, a settlement
agreement was reached. The parties' legal
representatives played an important role
through their co-operation, being both
pragmatic and realistic.
The settlement incorporated agreed protocols
for the sports organisation, the establishment
of procedures for complaints and the creation
of a working party, which would include the
manager as a member, to improve standards
and communications.
The parties were "impressed" with the
mediation and satisfied with the achieved
solution. Everyone was able to shake hands at
the end of the day and look forward to a future
working relationship, in contrast to the end of
a day in court.
Of course, not every mediation succeeds in
settling a case, but at least parties can feel
comfortable that they have given their best
shot at an economic yet thorough attempt at
resolution – leaving celebrities free to look
provides
forward to an era of televised trials!
The barrister magazine
language
cannot accept responsibility
for information supplied
by other parties, views
expressed may not
necessarily be that of
the editor or publishers.
 the barrister 19







  









 
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 20
NEWS
ROUND
UP
the barrister

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 NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Government
NEWS NEWS NEWS plans NEWS threaten
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There will
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NEWS NEWSforNEWS many parents
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NEWS NEWS care,NEWS
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NEWS fighting
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reform legal
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can occur NEWS
at any NEWS
stage of NEWSa career.NEWS NEWS NEWS NEWS NEWS NEWS Kinsella, NEWS said: NEWS NEWS NEWS
‘The international NEWSofNEWS
experience NEWS
the Working
NEWS NEWS that,
"It is important NEWS NEWStoNEWS
in addition NEWSpeople
encouraging NEWS fromNEWSa wideNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Group's members has allowed us to analyse these proposals from
NEWS
range ofNEWS NEWSinto
backgrounds NEWS NEWS NEWS
the profession, thereNEWSare policiesNEWS andNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS
practicesNEWS
in placeNEWS that willNEWSmake them NEWS want NEWSto stay NEWS NEWS NEWS NEWS
in the profession a uniquelyNEWS comparative
NEWS perspective.
NEWS NEWS In commenting
NEWS NEWS to theNEWS
House
NEWS
"OpeningNEWS up theNEWS professionNEWS NEWSfrom
to people NEWS NEWS
diverse NEWS NEWS NEWS
backgrounds of Lords, NEWS we haveNEWS soughtNEWSto putNEWS forwardNEWS effective
NEWS and realistic
NEWS
NEWS NEWS NEWS
and educational NEWSwill
establishments NEWS bringNEWSinnovation, NEWS NEWS
creativity andNEWS NEWS proposals NEWS NEWS NEWS NEWS NEWS NEWS NEWS
for reform.’
NEWS NEWS
further skills for NEWS
firms to NEWSbenefit from."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 NEWS NEWS NEWS
 21
NEWS
ROUND
UP
the barrister

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 NEWS NEWS NEWS NEWS NEWS NEWS NEWS
ICLR launch
NEWS NEWS NEWS THENEWS BUSINESSNEWS NEWS LAWNEWS REPORTS NEWS, NEWS the new series will offer prompt and accurate coverage of all cases affecting
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
business professionals and those who advise them. The series will be issued in paper-back every month to annual subscribers, and anyone
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
interested can request the first part free by emailing us on postmaster@iclr.co.uk or going online at www.lawreports.co.uk
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 NEWS NEWS NEWS NEWS NEWS NEWS NEWS
ICLR NEWS
NEWS to Sponsor NEWS NEWS New NEWS LegalNEWS ResearchNEWS NEWS Award NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
At the end of each academic year the Incorporated Council of Law Reporting Busfield Prize will be awarded for the best performance in the skill
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
of Legal Research [on the BVC]. The reward is in memory of Miss K. Busfield who bequeathed the funds to support students just starting their
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
careers in Law.
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 NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
IMPORTANT
NEWS NEWS NEWS CHANGES
NEWS NEWS MADE NEWS TONEWS
CRIMINALNEWS NEWS NEWS JUSTICE NEWS DELAYED
NEWS NEWS IS NEWS JUSTICE
NEWS NEWS DENIEDNEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
MEANS
NEWS NEWS TESTING
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS SAYSNEWS ILEXNEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS
Vera Baird QC MP, the Legal Aid Minister, announced important NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
New proposals to allow the public and press greater access
NEWS NEWS NEWS NEWS NEWS NEWS
changes to the new means test for legal aid in the Magistrates' NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
to family court hearings could lead to painful delays for the
NEWS
Court. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
children and families concerned in these emotionally sensitive
NEWS
The newNEWS means NEWStest wasNEWS NEWS
introduced on 2NEWS
October NEWS NEWS
2006 and aboutNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
cases, according to the Institute of Legal Executives (ILEX). ILEX
NEWS NEWS NEWS NEWS NEWS NEWS
60,000 representation orders have been granted. However, in someNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
believes that this would be unacceptable for those personally
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
areas there have been concerns as to how means testing is operating. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
involved in the 400,000 such cases occurring each year, given
NEWS
The changesNEWS aimNEWS
to addressNEWStheseNEWS
concerns. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
that many of the individuals involved are likely to be already
NEWS
They will:NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
experiencing stress and anxiety over their circumstances.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
* Guarantee that representation orders will start from the date a NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS
completeNEWS form isNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
first submitted Family courts rule on issues such as adoption, contact with children,
NEWS
* Improve NEWS NEWS
the Early CoverNEWS
SchemeNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
residence orders and putting children into care. There are two
NEWS NEWS NEWS NEWS NEWS NEWS
* Provide greater flexibility around a partner's signature NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
different types of case held in a family proceedings court; public law
NEWS
* Improve NEWS NEWS
application NEWS NEWS NEWS NEWS NEWS NEWS NEWS
forms NEWS NEWS NEWS NEWS NEWS NEWS NEWS
cases when local authorities will ask for action in relation to children
NEWS
Legal AidNEWSMinister,NEWS NEWS
Vera Baird, NEWS NEWS NEWS NEWS NEWS NEWS
said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS
they believe to be in danger, and private law cases when families are
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
"It is to the benefit of everyone, not least the client, that where a caseNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
arguing about which parent a child should live with upon separation.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
can appropriately be dealt with at first hearing that it happens. This is NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS
a centralNEWS NEWS
part of the NEWS NEWS
Government's NEWS NEWS
aims to streamline NEWS
criminal justice.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Family courts currently sit in private, and it is thought that this
NEWS NEWSimportant
It is therefore NEWS NEWS NEWS are
that solicitors NEWS NEWS
prepared NEWS NEWS NEWS
to represent NEWS NEWS NEWS NEWS NEWS NEWS NEWS
contributes to their decisions not being externally understood
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
clients at the first hearing and part of that is providing the necessary NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
nor trusted. As such, the government is currently consulting on
NEWS
incentive.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
proposals to increase media and public access so as to make the
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
courts more transparent. These would allow the media the right to
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
attend proceedings for the benefit of the public (although the court
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
retains the ability to exclude them where appropriate and place
TOUGH
NEWS NEWS ENFORCEMENT
NEWS NEWS NEWS OF NEWS
REFERAL NEWSRULES NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
restrictions on reporting of sensitive evidence). The proposals
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
ON THE WAY
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS also allow attendance by others either on their application to
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
the court, or by the court’s request. The proposals aim to ensure
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
that reporting restrictions provide anonymity for those involved
NEWS
A programmeNEWS for NEWS toughNEWS NEWS of
enforcement NEWS NEWS
the rules onNEWS
referralNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
in family proceedings (adults and children), whilst allowing for
NEWS NEWS
arrangements NEWS
has NEWSbyNEWS
been agreed NEWS
the Solicitors NEWS NEWS
Regulation AuthorityNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
restrictions to be increased or relaxed, as the case dictates.
NEWS
– the new NEWS NEWS
body that NEWS
regulates the NEWS
profession NEWS NEWS
in England andNEWS
Wales. 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
CheckingNEWS that solicitors Whilst welcoming in principle the government’s proposals for
NEWS NEWS are NEWS following
NEWS theNEWS
rules andNEWSprinciples
NEWS willNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
become NEWSa priorityNEWS
for the NEWS
investigation teams of theNEWS
SRA. This will beNEWS NEWSgreater transparency in family courts, the Institute of Legal
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
allied to NEWS
an information Executives (ILEX) fears that the existing acknowledged judicial
NEWS NEWScampaign
NEWS NEWS to help solicitors,
NEWS NEWS their clients
NEWS andNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
those involved in referral arrangements to understand the principles resourcing difficulties may be further compounded by the additional
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
of the rules. In particular, solicitors will be reminded of their duty to
NEWS NEWS NEWS NEWS NEWS NEWS NEWS
pressure and level of administrative complexity by accrediting
NEWS NEWS NEWS NEWS NEWS
ensure that clients know about any referral fees.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
press and public. Causes of delay already include obtaining of
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
first court dates; Children and Family Court Advisory and Support
NEWS NEWS NEWS
”This profession has got NEWS
to getNEWS NEWS
its house NEWSonNEWS
in order referralNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Service (CAFCASS) delays; and the need for additional judges and
NEWS NEWS NEWS NEWS NEWS NEWS
arrangements. We know there are huge commercial pressures here, NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
judicial continuity. In terms of judicial power for example, there
NEWS
but the keyNEWS NEWSthat
principles NEWS NEWS
solicitors NEWS
should NEWS NEWS
act independently andNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
is only one full-time Family Proceedings Court district judge in
NEWS
in the bestNEWS NEWS
interests of NEWS NEWS
their clients mustNEWS NEWSsaid
be upheld,” NEWS PeterNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
England and Wales.
NEWS
Williamson,NEWS chairNEWS NEWS NEWS
of the Solicitors RegulationNEWS NEWS NEWS NEWS NEWS
Authority. NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
”It’s clear
NEWS NEWSfrom NEWS
our ownNEWS researchNEWS that NEWS
there are some NEWS
NEWS shockingNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
breachesNEWS
NEWS of theNEWS
rules. NEWS
A minorityNEWS of solicitors
NEWS NEWS are undermining
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
public confidence
NEWS NEWS NEWS in the profession.
NEWS NEWS We oweNEWS it to NEWS
clients and
NEWSto theNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
conscientious majority of solicitors, to put a stop to this,” he said.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
”We’ll be reviewing progress during 2007. If our twin-track approach
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
of tough enforcement and information campaign does not work,
NEWS
we will NEWS
have to NEWS
considerNEWSbanningNEWSreferralNEWS
fees andNEWS otherNEWS
referralNEWS 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
arrangements.”
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWSRegulation
The Solicitors NEWS NEWS NEWS
Authority will NEWS NEWS NEWS
also investigate whetherNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS
criminal NEWS
sanctions NEWScan beNEWS NEWSthere
used where NEWS NEWS
is non NEWSonNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
compliance
NEWS
the rules. 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 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
What’s Going On At The Association of Personal
Injury Lawyers (APIL)
“APIL has always been an organisation open to both solicitors and barristers and the involvement of the
bar is vital in supporting the rights of injured people.” Mike Napier CBE
By Denise Kitchener, Chief Executive, Association of Personal Injury Lawyers
T
he Association of Personal
Injury Lawyers (APIL) was
established in 1990 by a group
of barristers and solicitors
working for claimants and is
dedicated to improving the
services provided to people injured by the
negligence of others. APIL is an international
organisation and achieves its objectives
through its exchange of information, education,
and campaigning and lobbying activities.
APIL has a membership of around 5,000,
comprising practising solicitors, counsel, legal
executives, academics and students. Barrister
representation is an integral part of APIL’s
membership and as Mike Napier CBE stated in
his keynote address at the annual conference
on 7th April 2006:
“APIL has always been an organisation open
to both solicitors and barristers and the
involvement of the bar is vital in supporting
the rights of injured people.”
APIL’s first president of the organisation was
a QC and in ensuing years APIL has enjoyed
the benefit of a further two bar presidencies.
APIL’s constitution stipulates that its executive
committee of 18 must include at least one
barrister elected by the membership. Currently
we have two. APIL’s executive oversees all of
the activities of the association, promoting
policy to key opinion formers, responding to
consultation papers, and working with other
associated bodies and charitable victims’
organisations.
To further increase its services, APIL has
recently set up a new membership group
for barristers. Whilst counsel are invited
to any regional group meeting or special
interest group meeting they wish, APIL
has now provided a separate forum for its
barrister membership to get together to share
information and ideas. The first inaugural
meeting was held in October and four meetings
are planned already for 2007. Appropriate
speakers are invited to these meetings, which
are then followed by an open forum of general
discussion and an informal chance to chat.
Early 2007 will see the introduction of another
new membership group for the newly qualified
and, with the halving of APIL’s membership
fee for barristers of up to five year’s call, it is
anticipated that these other two new services
will encourage more junior barristers to join
APIL and participate in its activities.
Just over a year ago, APIL embarked on a
major national campaign for members of the
public, providing the information that injured
people will need, guidance about whether they
have a claim at all and, if they do require legal
advice, pointing them in the direction of an
accredited, regulated professional.
Through our research, the public have told
us, and confirmed again in a MORI survey,
that they want to go to regulated, accredited
lawyers but they do not know where to find
them. The scoping study from the Department
of Constitutional Affairs looked at the whole
issue of quality kitemarks and what they
mean to people looking for legal help. Most
are poorly placed to distinguish one lawyer’s
services from another’s and few consumers
are in a position to know the type of legal
services they need, or indeed whether they
have received a good service after the event.
APIL has responded to these issues by
introducing a quality kitemark of competence
and skills, supported by our code of conduct
and consumer charter. But offering accredited
legal help to people is one thing, what is
crucial is that people know what it means,
what they want and where to find it.
Members of the public are asked to look
out for the quality kitemark – the accredited
logo - and seek out APIL accredited lawyers.
“No logo – no go” is the foundation of the
campaign.
APIL has circulated half a million leaflets
and posters to citizens advice bureaux,
libraries and legal advice centres nationally
and a nationwide press public information
press advertising programme is in place.
In addition, APIL accredited members are
promoting the logo through their individual
offices and giving talks to local CABx.
Injured people can access details of our
members through our consumer website
www.apil.com, Yellow Pages and Thomsons
directories, and our telephone helpline, which
is shortly to become a 24 hour service.
This is a long term campaign to generate
recognition of the APIL logo, giving people the
assurance and protection they need through
APIL’s accredited membership.
The accreditation scheme is governed
by an independent academic council of
representatives from the Bar Council, the
Law Society, academic institutions and other
jurisdictions.
APIL’s individual accreditation provides
a kitemark of expertise at varying levels
according to experience and length of time
working in the field of personal injury. It
also provides a clear learning path for those
wishing to progress through the levels to
fellowship, or senior fellowship which is the
highest accolade and reserved only for the very
few lawyers who have made an outstanding
contribution to personal injury law.
Senior litigators, fellows and senior fellows
will have a minimum of 5, 10 or 15 years’
experience respectively of handling personal
injury claims and have applied for accreditation
giving the necessary evidence to confirm their
experience. Members at all of these levels
have experience of taking their cases to court
or are proven mediators and negotiators,
fighting for full and fair compensation. And,
more importantly, all accredited members are
committed to accruing 16 hours of continuing
professional development training in personal
injury each year, thus making sure that
accredited members are fully up-to-date and

equipped to give the best advice on handling
individual cases.
APIL’s corporate accreditation scheme ensures
that solicitors firms or sets of chambers have
met specific quality standards. At the request
of and in consultation with counsel, APIL’s
solicitor scheme has been adapted so that
it is appropriate for barristers, providing
chambers with the opportunity to identify
themselves as experts to instructing solicitors,
expert witnesses and others. In addition, it
enables instructing solicitors, who also have
corporate membership, to make it clear to
their clients that barristers instructed by
them are also accredited. Upon acceptance,
chambers are permitted to use the APIL
accredited logo in their marketing materials.
Accreditation is for a period of three
years. Within the period of accreditation,
the accredited organisation is required to
confirm annually to APIL that it continues to
satisfy the accreditation criteria as follows:
The organisation:
- The organisation is listed on the
register of chambers maintained by
the General Council of the Bar
- The organisation is listed by the
General Council of the Bar as
the practising address of those
barristers who are named in the
application
- Accreditation is of a set of chambers
at a single location. If a set of
chambers operates from more than
one location, it must apply for each
location
Supervision:
- There must be at least one accredited
member within chambers who has
achieved senior litigator status
or above and who has personal
responsibility for providing advice
and guidance on personal injury
work within the organisation
- Each accredited member provides
mentoring and advice to no more
than ten other accredited members
- The organisation runs an “open
door” policy, such that junior
barristers have access to more
senior barristers for advice and
mentoring
Client care:
- Training on customer care is
provided to all staff with “first
point of contact” responsibilities,
including clerks, telephonists and
receptionists and the appropriate
evidence is available or the
chambers has attained the LSC
quality mark for the bar
- Accredited members and clerks
attend an APIL recognised client
care course at least once every five
years
Keeping up-to-date:
- Accredited members undertake
a minimum of 16 hours APIL
recognised training annually,
including attendance on at least
one APIL recognised personal
injury update annually
- Accredited members devote a
minimum of three hours per month
reading current and relevant case
reports
Quality assurance:
- The organisation has properly
documented processes and systems
in place for turning papers around
in a reasonable time
- the organisation has “leaders”
which enable a second opinion to
be brought to bear on a matter,
where this is appropriate
Monitoring:
- An undertaking from the
organisation that it will comply fully
with APIL monitoring to ensure
compliance with the criteria
Client care, supervision, quality assurance
and training are all crucial elements of the
accreditation scheme.
To comply with the training requirement
criterion, accredited members can attend
events run either by APIL, in-house, or by
other commercial and not-for-profit training
providers. Other providers must be APIL
recognised, each applying annually for
the barrister 23
accreditation as a provider, and then on a
course by course basis.
APIL’s training division currently runs almost
300 CPD accredited events each year. These
take the format of two hour long regional
group and special interest group meetings
giving one CPD hour. Special interest groups
include clinical negligence, brain injury and
occupational health. APIL’s four regional
forums last a little longer and usually provide
for 2 ½ to 3 hours of CPD. The forums
provide an update on procedural, damages
and funding matters, as well as the local
perspective.
APIL’s first web cast on CFAs for barristers
only was held in July.
APIL also runs much larger training events.
The majority last a full day but it also runs two
major residential conferences annually – an
annual conference and a clinical negligence
conference.
APIL’s philosophy is to challenge what has
been learnt and therefore most events are
interactive, including workshops and question
and answer sessions. All training events are
accredited by the Bar Standards Board.
APIL is determined that through its activities
it will champion the rights of injured people.
APIL was set up expressly to, among other
things, promote full redress for injured
people and to develop expertise in the
practice of personal injury law. In the last
few years APIL has seen the continued rise of
unregulated, unqualified claims management
companies – which don’t have that expertise
– approaching often vulnerable people at a
time when they most need proper help and
guidance. Injured people need qualified,
specialist, regulated help from the very
beginning. APIL has risen to this challenge
and its barrister representation is crucial
in this respect, relying on the wealth of
experience, knowledge, skills and expertise
that barristers have at hand.
Denise Kitchener Chief Executive,
Association of Personal Injury Lawyers
 24 the barrister
"How to get away from Rumpole and Judge John Deed"
Education for legal literacy
“
Legal rights and responsibilities
permeate and enhance all
aspects of citizenship”1 yet
there exists great public
uncertainty and ignorance about
the nature and function of the
law and legal system in this country. Or
rather, there is both legal ignorance and
legal misinformation to contend with, the
latter stemming perhaps from rumour, poor
advice from family or friends or even law
related television programmes. Effective
legal education provides both the knowledge
and the confidence to use it. But how can this
be delivered and is there a role for Barristers
to get involved and share their expertise?
Legal education has been central to the work
of the Citizenship Foundation since it was
founded in 1989. Its predecessor, the Law in
Education Project, was initiated by solicitor
Andrew Phillips (now OBE) and funded by
the Law Society. This landmark project
was designed to engage both teachers and
students in law-related matters particularly as
citizenship education was not then statutory.
It did this by helping non legally trained
teachers handle the subject more confidently
in class and to introduce students to their
legal rights and responsibilities and the role
of law in democratic society. Concepts such
as rights, duties, responsibilities, justice, law,
power, and authority were introduced in a
way that encouraged, for the first time, the
development of knowledge and understanding
of the law as well as engaging students
critically with the content and purpose of the
legislation, and encouraging critical thinking
and democratic discussion.
In its subsequent work the Citizenship
Foundation has endeavoured to establish legal
understanding, otherwise known as legal
literacy as an entitlement, not just for young
people, but for everyone. Effective citizenship
requires people to be informed and engaged
and possess knowledge of their legal rights in
everyday situations as well as something of
the legal principles underpinning them. Law
affects nearly every part of our lives and as
an entitlement, people should be able to have
an understanding of laws they may be at risk
of breaking through ignorance.
Clearly the law is a huge subject, but legal
literacy, a real and effective understanding
of how the law and legal system works in
this country doesn’t necessitate a detailed
understanding of all laws and statutes.
What it does require however is a base, an
understanding of what law is and how it
can be used. Skills such as seeking evidence,
and an understanding of concepts such as
justice, fairness, reasonableness and duty
of care can be carried around by citizens
and used to facilitate their everyday lives.
Rather than knowledge of how to remedy
every legal issue they may face, (the role of
the legal professional) legal literacy would
both empower people to seek a remedy and
facilitate their search for it. It would provide
an understanding of the best recourse
for different disputes, how to use the law
effectively as a tool, and where there may be
a more appropriate course of action.
Prior to 2002, it had not been common
practice to teach law in schools as part of a
basic social education. Where GSCE and A’
Level law, were (and still are) taught, the focus
was predominantly academic in nature with
content often largely based around criminal
law. While this kind of learning is valid it had
not previously led to equal access to the kind
of knowledge which could enable all students
to gain an understanding of their rights and
responsibilities, or of civil law, which “for
most people, for most of the time,…has the
greater impact on their lives.” 2
When citizenship education was made
statutory for Secondary schools in September
2002, the focus was on law as a practical
and enabling subject. Focus was shifted to
both everyday situations and to practical
skills. Defining the law as a cornerstone of
democratic society which affects everyone’s
lives helps students to understand how it
is relevant to them and furthermore how
such an understanding could provide the
confidence and tools to deal with everyday
problems they face, whether it relevant
to buying faulty goods, problems with a
landlord or employer or understanding the
legal context of pirate DVDs.
The citizenship curriculum requires
students to learn about (inter alia) “the
legal and human rights and responsibilities
underpinning society and how they relate
to citizens, including the role and operation
of the criminal and civil justice systems; the
work of the courts in making and shaping
the law; and the rights and responsibilities of
consumers, employers and employees.”
Initially there was (and still is) a certain
degree of apprehension and reluctance from
many schools and teachers, who also faced
student preconceptions about the subject,
where they claimed that it was either dull,
boring and irrelevant, or that what they had
learnt from watching television was accurate
and sufficient knowledge to put to practical
use.
Yet, as understanding of the importance and
relevance of the subject has increased in the
classrooms, evidence shows that teachers
still don’t feel confident in teaching it.
Considering that many of the topics covered
at the practical level, are highly pertinent to
the personal lives of teachers as well as their
students, we are given an idea of the general
lack of confidence in the public generally. Law
remains in fact the area in which teachers
feel least confident in teaching.
Recognising this, the Citizenship Foundation
has developed a number of projects
designed to get trained professionals into
the classroom. For example our recently
re-launched Twinning: Lawyers in schools
programme pairs solicitors from law firms
and legal departments of companies with
local schools to deliver a specially written
programme on topics such as rights and
responsibilities, consumer law, employment
law, human rights, police powers, and youth
justice.
Similarly, one of our flagship projects, the Bar
National Mock Trial Competition,
run in partnership with the
Bar Council enables over 2,000 p.26
15-18 year olds from schools
 the barrister 25
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 26 the barrister

throughout England, Scotland,
p.24
Wales and Northern Ireland to
interact directly with over 300
barristers, judges and other legal
professionals and get inside Crown Courts.
Now in its sixteenth successful year, the
Competition seeks to introduce the legal
system to young people in an innovative and
exciting way. Taking part in a mock trial
provides the real hands on experience that
helps young people gain an understanding of
criminal law, the criminal justice system, and
how courts work.
To enter the Competition, students take on
the roles of lawyers, witnesses, court staff
and jurors and prepare the prosecution and
defence of two specially written criminal
cases. Teams have the support of a local
barrister or advocate and compete against
each other in a live format at Crown Courts
with their performances judged by real
Judges, recorders, senior barristers and
advocates. One of the cases last year looked at
protecting your home against intruders with
reasonable force, while this year participants
are examining the law around misuse of
drugs and criminal damage.
While providing students with an academic
background of the statutes involved, the
active learning aspect provides the practical
understanding of the process. Skills such as
listening, reasoning and of course arguing
come into play as do considering other people’s
experiences and thinking about, expressing,
explaining and critically evaluating views
that are not their own (as required by the
Citizenship National Curriculum).
The Competition relies on the support
of the Bar and is indicative of the Bar’s
commitment to encouraging public
understanding of the legal profession and
diversity within the Bar. Each year, sixteen
regional heats take place around the country
in the autumn before the winning team from
each goes on to the National Final held
in March. Each regional heat relies on a
Regional coordinator who matches volunteer
barristers with participating schools and
recruits Judges, recorders, senior barristers
and advocates to act as judges for the heats.
Volunteer barristers help teams prepare for
the competition and support them on the
day of the Regional Heat. They commit to at
least one school visit to watch the team in
action and advise on how they could improve
by giving tips on the roles of barristers,
witnesses, court staff and judges as well
as guiding on court procedure, statements,
evidence and strengths and weaknesses of
cases.
Last year nearly 80% of schools taking part
had a barrister helper and in the evaluation
100% of these schools highly valued their
input, agreeing that this was key to their
preparations. Speaking about the students
energy and enjoyment when taking part in
a heat, a volunteer barrister noted last year:
“Enthusiasm and eagerness are qualities
rarely associated with the courts and to
observe them in the Mock Trial Competition
is ample reward for prior endeavour.”
Among the judges at the final last year was
Stephen Hockman QC, Chairman of the Bar
Council, who commented: “The Mock Trial
Competition is a valuable opportunity for

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 the barrister 27
young people to gain an understanding of the Of course, there are many routes to legal 1Thorpe, T (2006) in Learning about the

law. The participants have worked extremely
hard and performed to such a standard that
I can see some star advocates of the future
among the competitors”.
The competition relies on a vast number
of committed people from the Citizenship
Foundation and the Bar Council of England
and Wales, and also the Faculty of Advocates
in Scotland, the Bar Council of Northern
Ireland, the Inns of Court and the Circuits,
and Her Majesty’s Courts Service. In
particular, the dedicated work of the chair
of the working party Christopher Kinch QC
(Trustee of the Citizenship Foundation) and
Carole Atkinson deserve recognition and
have helped the Competition to continue to
achieve its overall goals:
• To improve knowledge and
understanding of the law and to
improve citizenship skills
• To improve knowledge and
understanding of the role and
operation of the Crown Courts
• To increase contact with the legal
profession
literacy of which this is just one. The Law: Education for Legal Awareness in
Breslin,
Foundation aims to produce a range of
T & Dufour, B, Developing Citizens, Hodder
materials suitable for community related Murray, London: p115
projects, written guides (notably the Young 2ibid p118
Citizen’s Passport, a guide to the law) and
resources. Equally there are a number of
other organisations producing excellent
resources and tools for legal literacy such
as BANES and the Galleries of Justice/Rizer
project.
Dan Mace, a Trustee of the Citizenship
Foundation and Vice Chair of the Public Legal
Education and Skills Task Force led by Dame
Professor Hazel Genn QC, ties up the work
of both saying “The ground breaking work
of the Citizenship Foundation feeds directly
into the promotion of legal education which
the task force is reviewing. We know that
over 1 million problems go unsolved each
year because people don’t know their basic
rights or how to seek help. The Citizenship
Foundation is happy to work with the Bar to
reduce this number by raising awareness of
the role and rule of law.”

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 28
NEWS
ROUND
UP
the barrister
Young offenders: a new approach
There are a number of ways in which the sentencing framework could be amended better to meet the
particular needs of cases involving young offenders. For example, a juvenile equivalent of the custody
minus or other form of suspended sentence should be available in the youth court
By Rob Allen, Centre for Crime and Justice Studies, Kings College
R
eforming youth justice has
been one of New Labour’s
top priorities but a number
of recent reports have cast
doubt on whether the current
system for dealing with young
offenders in England and Wales is fit for
purpose. Last year, Council of Europe Human
Rights Commissioner Alvaro Gil Robles
concluded that juvenile trouble-makers are
too rapidly drawn into the criminal justice
system and young offenders too readily
placed in detention. He argued that greater
attention to alternative forms of supervision
and targeted early intervention would more
effectively straighten the errant, rehabilitate
the convicted and consequently reduce youth
crime. Earlier this year, Lord Carlile’s Inquiry
into the treatment of children in penal
custody recommended severely restricting
physical intervention, stopping the strip
searching of children and an end to prison
segregation. Most recently, research on Anti-
Social Behaviour Orders (ASBOs) found the
prohibitions they contain are experienced by
many young people as unreasonable, and are
“often met with ridicule or incomprehension.”
There is no doubting the seriousness of
the problems facing young people today. A
well publicised survey by the Institute for
Public Policy Research has given support to
the widely held fear that British youth are
on the verge of mental breakdown, at risk
from anti-social behaviour, self-harm, drug
and alcohol abuse. The IPPR’s call for a
broad rethink of youth policy fits well with
more focussed concerns about the way we
deal with children in conflict with the law.
”From Punishment to Problem Solving – A
New Approach to Children in Trouble” argues
for a fundamental shift in the way we respond
to young people who offend - away from
emphasis on cops, courts and corrections and
towards tackling the roots of delinquency.
Such an approach comprises four key
elements – first, greater prevention, with
an emphasis on addressing the educational
and mental health difficulties underlying
much offending behaviour; second, placing
limitations on the way we criminalise young
people and introducing more appropriate
forms of prosecution and courts; third, a wider
range of community-based and residential
placements for the most challenging young
people combined with a phasing out of prison
custody; and finally new organisational
arrangements within government, with the
Children’s Department in the Department
for Education and Skills taking over lead
responsibility from the Home Office.
Prevention
With the UK at the bottom of the league table
of child well-being in the EU, mainstream
services to support children and their
families require much greater investment.
There is a particular need to tackle exclusion
and truancy, which are associated with
offending, and to address the growing
incidence of mental health problems. On
the education side, we need to expand
restorative justice programmes in schools
and ensure a proper range of provision
is available for young people with special
educational needs. We also need a much
expanded mental health sector so that needs
can be identified early and suitable help
provided to young people and their families.
Criminalisation
The age of criminal responsibility in England
and Wales is lower than most comparable
countries and since 1997 there has been a
steady increase in the proportion of young
offenders prosecuted rather than diverted
from prosecution. Indeed the 22% rise in
young people under 18 sentenced by the
courts since 1997 is almost twice the increase
seen across all age groups in that period.
There is a strong case for raising the age of
criminal responsibility to 14 with civil child
care proceedings used for children below
that age who need compulsory measures of
care. Diversion from prosecution should be
more positively encouraged, with much more
widespread use of initiatives such as restorative
conferencing which can bring home to young
offenders the consequences of their actions
and give victims a say in the proceedings.
There are strong arguments too for specialist
prosecutors to be introduced with the aim
of actively diverting children and identifying
cases where local authorities should
investigate the need for care proceedings.
Initial decisions about young people aged 14
to 18 charged with criminal offences should
normally be brought before a Young People’s
Prosecutor (YPP). As well as having regard to
the evidence and the public interest, the YPP
would be required to consider the interests
of the young person and actively look at
ways of diverting cases, for example through
conditional diversion programmes. The YPP
would have the power to make an order
requiring a young person to appear before
a Youth Offender Panel and undertake any
resulting contract for up to a year. The
prosecutor would also have the power to
require the local authority to investigate the
need for civil care proceedings where the
young person does not appear to be receiving
proper care and supervision.
Where the YPP considers there is no
alternative to prosecution for 14 to 18-year-
olds, their case should be brought before
a specially constituted youth court. Where
there is a plea of guilty, the court should
consider whether to order a family group
conference in every case prior to sentencing.
Based on the Northern Ireland model of
conferencing, the aim of this would be to
encourage the young offender to assume
responsibility for their wrongdoing, make an
apology to the victim and do what they can
to put things right.
Where such a conference is held, the youth
court should be required to take into account
any agreements made when considering
sentence. The court should also have the
power to transfer the case to a civil family
court for consideration.
All cases involving young defendants who
are presently committed to the Crown Court
for trial or for sentence should, in future,
be put before the youth court consisting, as
appropriate, of a High Court Judge, Circuit
Judge or Recorder sitting with at least two
experienced magistrates. The only possible
exception should be those cases in which
the young defendant is charged jointly with
an adult and it is considered necessary, in
the interests of justice, for them to be tried
together. The youth court so constituted
should be entitled, save where it considers
that public interest demands otherwise, to
hear such cases in private, as in the youth
court exercising its present jurisdiction.
Serious and persistent offenders
The use of penal custody in England and
Wales has remained high in international
terms, despite attempts to introduce
alternatives at the remand and sentencing
stage. Although the Youth Justice Board
has aimed to bring coherence to the range
of secure establishments, there is still a
jumble of responsibilities across government
departments. Prison establishments, in
particular, are ill-equipped to meet the
complex needs of young offenders. There

is a need therefore to find urgent ways of
reducing the numbers in custody, for example
by making local authorities financially
responsible wholly or in part for the sizeable
costs involved in locking up young people.
There are a number of ways in which the
sentencing framework could be amended
better to meet the particular needs of cases
involving young offenders. For example, a
juvenile equivalent of the custody minus or
other form of suspended sentence should
be available in the youth court. A definition
of custody as a last resort needs to be
worked out by the Sentencing Guidelines
Council. It should be based on limiting
custodial sentences to offenders convicted
of serious violent offences where there is a
significant risk of further harm, and to those
convicted of serious non-violent offences,
who are highly persistent offenders and who
have repeatedly shown themselves unable
or unwilling to respond to community-based
sentences.
More fundamentally still, a new form of
residential sentence could be introduced to
run alongside and potentially replace the
Detention and Training Order. Courts would
be able to make a residential training order,
a new indeterminate order of up to two
years or in the case of grave crimes, five
years. A residential training order should
only be made in cases where the offence is
so serious that the young person should be
removed from home and the young person
has failed to comply with community-based
orders. The residential training order should
generally be served in open conditions in
an appropriate placement designated by
the local authority and accredited by the
Department for Education and Skills (DfES).
Such establishments might include residential
schools, adolescent mental health units,
children’s homes or foster care placements.
In addition, the youth court should be able
to rule that a residential training order
or part of it should be served in a closed
establishment.
The Youth Justice Board needs to be given
more of a leadership role in respect of the
way secure establishments are provided and
run, phasing out prison custody for 15 and
16-year olds and transforming facilities for
17-year-olds. A fundamental review of closed
and open residential options available for
young offenders should be carried out, with
consideration being given to creating a new
youth residential service to coordinate them.
Governance
The key principle for responding to children in
the barrister 29
conflict with the law should be to assist them
in growing up into well-adjusted and law-
abiding adults. This principle resonates much
more strongly with the essential outcomes
for children pursued by the Department
for Education and Skills – being healthy,
staying safe, enjoying and achieving, making
a contribution and achieving economic well-
being – than it does with the overarching
aim of the Home Office, which is public
protection. While there is a case for retaining
the Youth Justice Board as a specialist body
overseeing youth justice arrangements, it
should be sponsored by the DfES.
From punishment to problem solving – A new
approach to children in trouble by Rob Allen
is published by the Centre for Crime and
Justice Studies and available at
http://www.kcl.ac.uk/depsta/rel/ccjs/2006-
punishment-to-problem-solving.pdf

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 30 the barrister
Expert Witnesses in Rape Trials
By Sally O’Neill QC
O
ne of the proposals in the
recent Consultation Paper
produced by the Office for
Criminal Justice Reform was
there should be the power
to adduce general expert
evidence in rape trials. The background to
the report is the continuing concern over the
low conviction rate for rape cases and it may
be of some significance that the title of the
report is “Convicting Rapists and Protecting
Victims – Justice for Victims of Rape”. The
aim of the report is to “improve the outcome
of rape cases by further strengthening the
existing legal framework and improving
our care for victims and witnesses.” Insofar
as this proposal is concerned, the aim is
expressed as wanting to ensure that “courts
hear evidence from experts that will better
inform juries about the realities of rape and
the psychological impact of sexual offences
upon victims and address certain myths and
stereotypes concerning how a victim might
be expected to behave.”
The point is made that currently in a criminal
trial “any omission, discrepancy, error,
delay in reporting, unbecoming or puzzling
behaviour that the victim may exhibit before,
during or after the alleged rape, will be used
by the defence as a basis for questioning
that person in order to make him or her
appear unreliable and untruthful”. Whilst
nor apparently seeking to stop such probing
and testing of the evidence by the defence,
it is suggested that the explanation for such
behaviour may be grounded in the common
psychological reactions that occur if a person
has suffered a traumatic event or been in an
abusive relationship and that this is relevant
knowledge which should be before the jury
when they are making decisions on the
credibility of a witness.
The explanation which is given for the
anticipated role that such evidence would
play is that the expert would explain to
judges and jurors alike that “such apparently
problematic features of a person’s evidence
are common and should not necessarily lead
to the conclusion that the victim/witness
is lying or unreliable. The court would be
informed of the acknowledged psychological
reactions that occur after a prolonged
relationship of abuse and/or after a deeply
traumatic event. Such reactions can affect a
victim’s ability to give a coherent, consistent
account of their experiences and cause
behaviour which, to an onlooker, is puzzling
as it does not match the expectation of how
“genuine” victims act or react.”
It may seem to some that this is a benign
proposal, which may help the jury assess
a witness’s credibility more fairly and that
that can be no bad thing. It is pointed out
that this type of evidence is commonplace
in the USA. It may be that some find that a
more persuasive argument than others. The
difficulty with the proposal, however, as is
so often the case, is how it would work in
practice.
To those of us who have both prosecuted
and defended in such cases, the particular
difficulties arising in cases involving just the
complainant and the defendant are well-
known, particularly when there is drink
involved. They are difficult decisions for the
jury to make, perhaps made more difficult in
the knowledge that a conviction will mean a
lengthy custodial sentence for the defendant.
Why should any proposal, which may make
their task easier be rejected?
The first point is that the care and
consideration, which juries give these
and indeed all cases does not seem to be
acknowledged. A new juror may come into
a case with a pre-conceived idea of guilt or
innocence but once they become involved in
a case, it is clear from the verdicts which we
see day after day in the criminal courts that
they do try each case on its facts as opposed
to prejudice.
The second point is that expert evidence
is admissible only when it relates to a
matter, which is outside a jury’s knowledge.
Expert evidence can often be confusing and
sometimes form a distraction from the real
issues in the case and although juries are
told they can accept it or reject it as with all
evidence, expert evidence does undoubtedly
complicate the criminal process and should
only be admitted when it is necessary. The
intention of this proposal is to simply ensure
that the jury is made aware of possible other
explanations for why a complainant should
have behaved in such a way. Why is it better
or necessary for such a reminder to come
from an expert? It is not intended that the
expert should comment on the particular
facts of the case, just in general terms but
an expert called by the prosecution on such
a topic is very likely to be met with an expert
called by the defence. It is not hard to see the
situation arising in which one says to the jury
that it is not uncommon for a complainant
not only to delay in reporting but also not
to give a full account when they do report
the allegation and for the other to say it is
more common for allegations to be made
at the time and for there to be reasonable
consistency. How is the jury to be helped by
this?
There is a considerable body of research,
which supports the claim that many people
allow myths and misconceptions to affect their
judgement when considering the credibility of
a complainant making an allegation of rape.
If there is the need in a particular case to
remind the jury firmly that they must not let
pre-conceived ideas affect their judgement,
for example, that they must not assume that
because a complaint is not made at the time,
it is less likely to be true, then surely the best
person to do so is the judge when directing
the jury as to how they should approach
the evidence. It is done in other aspects of
evidence such as giving a “Lucas” direction
on the many reasons why a person may lie
and can be a very effective direction.
The proposal is for this type of expert
evidence to be used only in rape cases as
rape is expressed to be a “unique” offence.
Whilst not in any way intending to minimise
the effect of such a serious sexual assault
on a person, it may be thought puzzling
that no other offence is considered to have
such an effect on a witness so that the jury
need help with assessing inconsistencies or
puzzling features of their evidence. Many
criminal offences have serious consequences
for those who are the victims of them and
it is obvious that the effects on them may
be deeply traumatising and affect both how
they report the incident and what they are
able to say about it. Juries can be trusted,
properly directed, to use their common sense
in assessing credibility.
There are many reasons why there is a low
rate of conviction for rape cases. We should
think long and hard before assuming that
this sort of proposal will make a jury’s task
easier and think even harder before we
assume that the only right result in a rape
trial is a conviction.
Thi
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 32
NEWS
ROUND
UP
the barrister
EU Intellectual Property Enforcement Directive –
Devil in the Detail
By Gregory J. Urbanchuk MSc
Historically, when it came to the enforcement
of Intellectual Property (“IP”) rights in the
European Union (“EU”), local rules applied. In
the context of enforcement rules, the remedies
available for infringement were quantified
by reference to the rules of the jurisdiction
in question, which often differed amongst
Member States. The primary purpose of the
EU IP Enforcement Directive (2004/48/EC)
was to create a level playing field for the
enforcement of IP rights across the Member
States by establishing a homogenised set of
enforcement measures.
The changes brought to national IP regimes
by the Directive have not been viewed as
controversial. However, its implementation
has not been entirely clear-cut as c. 50 percent
of the Member States missed the 29 April
2006 deadline for transposition. Further,
absent the establishment of a centralised
system of litigation (e.g., Community Patent
or EPLA) the enforcement measures set out
in the Directive are subject to interpretation
by national courts. These courts may
take divergent views as to the meaning of
undefined terms and the methodology used
to quantify the broadly defined damage
remedies set out in the Directive, which is
contrary to the primary objective of a level
playing field. In addition, implementation
of the Directive is likely to bring some
interesting changes to some of the more
established damage regimes, including those
in the UK and France.
This article considers the challenges presented
by the implementation of the Directive and its
potential impact on the quantification of IP
damages, and considers potential changes
to the damage framework in the UK and
France, which may be of interest.
ARTICLE 13: THE IMPACT OF
UNDEFINED TERMS
The quantification of damages arising from
infringement is set out in Article 13 of the
Directive, which states that:
(1) Where the infringer “knowingly”
engaged in infringing activity
damages shall:
(a) take into account all
appropriate aspects, such
as the negative economic
consequences, including
lost profits, which the
injured party has suffered,
any unfair profits made
by the infringer and,
in appropriate cases,
elements other than
economic factors, such as
the moral prejudice caused
by the infringement; or
(b) as an alternative to (a),
as a lump sum on the
basis of elements such
as at least the amount of
hypothetical royalties.
(2) Where the infringer did not
knowingly engage in infringing
activity judicial authorities may
order the recovery of profits or the
payment of damages, which may
be pre-established.
Article 13 introduces undefined terms
that will require interpretation by national
courts, including the impact of known versus
unknown infringement and the meaning
ascribed to terms such as “unfair profits” and
“moral prejudice”. Until clearer definitions
are provided, it is difficult to assess the
economic impact of these terms on the
quantification of damages. However, it is safe
to say that these terms provide an additional
layer of uncertainty to the quantification of
IP damages.
INTERPRETATIONAL DIFFERENCES:
YOU SAY TOMATO, I SAY TOMATO
The broad definition of damage remedies
(e.g., lost profits, unfair profits, royalties) set
out in Article 13 of the Directive is subject
to legal interpretation, which may differ
between national courts. Interpretational
differences that may impact the quantification
and amount of damages may include (among
others): (1) the measure of profits (e.g.,
incremental, full absorption, accounting); (2)
the method used to apportion profits between
infringing and non-infringing elements;
(3) the consideration of price erosion and
ancillary sales; and (4) the treatment of
design around costs in royalty calculations.
If these differences were to arise they could
create national disparities in the amount of
damages awarded. As a point of interest,
this is contrary to the primary objective of the
Directive, which was to create a level playing
field in the EU.
To understand how the interpretation of a
common set of damage rules could result
in different damage awards, it is helpful
to consider an example related to the
quantification of damages by reference to
an account of the defendant’s profits. A
key economic issue that may need to be
addressed under this damage remedy is the
apportionment of profits between infringing
and non-infringing activities. In the UK case
Celanese International Corp. v. BP Chemicals
Ltd [1999] R.P.C. 203 it was held that the
apportionment of profits should be done by
reference to the relative capital expenditures.
However, an alternative incremental
approach notes that the apportionment of
profits by reference to expenditures may not
be appropriate in circumstances where, on a
relative basis, the infringing technology adds
more value to the total product than other
elements. Accordingly, the methodology
adopted by the courts to apportion profits
may impact the calculation of damages. This
issue is not just hypothetical. As noted below,
an account of the defendant’s profits is a new
remedy in France. Therefore, French courts
may need to address the apportionment of
profits, which could, in theory, differ from the
English courts view.
UK DAMAGE ELECTION: THE END IS
NEAR?
The UK Patents Act 1977 (as amended
January 2005) required a claimant to elect
between an enquiry as to damages and an
account of the defendant’s profits. Once this
election was made the claimant was precluded
from recovery under the alternative remedy.
However, Article 13 of the Directive indicates
that when setting damages the court should
consider both the claimant’s lost profits and
any unjust profits made by the infringer. This
raises several questions that will likely impact
the quantification of damages. Firstly, has
the UK damage election process in effect been
eliminated through the implementation of the
Directive? Secondly, how will national courts
decide between the award of the claimant’s
damages or the defendant’s profits?
DEFENDANT’S PROFITS: NOUVEL EN
FRANCE
Historically, an account of the defendant’s
profits was not an allowable method of
recovery under French law. Implementation
of the Directive in France will allow for the
recovery of damages under this method.
From an economic perspective, the addition
of this new method of recovery could, in
certain instances, increase the amount of
damages awarded to the claimant in France.
SOME FINAL THOUGHTS
Many of the challenges presented by the
implementation of the Directive and their
economic impact on the quantification of
damages are subject to interpretation by
national courts. Until additional court
guidance is provided, an expert economist
can assist the legal team and its client
navigate the grey areas of the Directive as
they relate to the quantification of damages.
An economic expert with experience in
multiple EU jurisdictions can: (1) provide
financial and economic analysis of
untested areas of case law by reference to
judgements in other jurisdictions; (2) provide
assistance with identifying, understanding
and quantifying the impact of different
interpretations of damage methodologies
by reference to historical case law; and (3)
provide guidance on the mechanics and
components of a damage calculation. A
reliable quantification of IP damages requires
the effective integration of economics and
law. Sometimes the most important step in
this process is understanding the devil in the
detail.
Gregory J. Urbanchuk MSc
 the barrister 33

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 34 the barrister
BENJAMIN’S SALE OF GOODS (7th edition) –
The Common Law Library
General Editor: Professor A G Guest QC
Editors: Professor Len Sealey, Professor
Francis Reynolds QC, Professor C J Miller,
Professor D R Harris QC, Sir Guenter Treitel
QC, Professor E P Ellinger, Professor C G J
Morse and Professor Eva Lomnicka
THOMSON SWEET & MAXWELL
ISBN: 0 421 88830 X
Price: £375
BENJAMIN MAKES ANOTHER GOOD
SALE
A book review by Phillip Taylor MBE LL.B
(Hons) Barrister-at-Law
Book Reviews Editor, “The Barrister”.
Just the list of names of the above editors
alone sums up this book – It is a brilliantly
conceived piece of work and the ultimate
statement of the law of sale of goods.
It is not long ago that the first, newly formatted
edition appeared (1974). This seventh edition
remains the key authority in its field today.
To find out a little more about its original
author, Judah Philip Benjamin, the Common
Law Library has produced some interesting
biographical information about the man who
was born in 1811 in the West Indies. Mr
Benjamin’s life makes fascinating reading
and is a welcome addition as a human touch
to the heavier prose of the volume.
Benjamin’s family moved to Charleston and
he attended Yale College as it then was.
Without completing his degree, he was called
to the Bar in America, entering the legal
profession at New Orleans in December 1832.
Then he began writing. Ten years later he
served in the State legislature, and a decade
later was elected to the Senate and re-elected
in 1857. Unfortunately, he chose the wrong
side during the civil war and was Jefferson
Davis’s Attorney General, being known as the
‘brains of the confederacy’ – Benjamin that
is, not Davis!
When Lee surrendered, and with his life
in danger, Benjamin escaped, arriving in
England virtually penniless. A Lincoln’s Inn
man, he published the “Contract of Sale” in
1868 and other works, the most well known
becoming “Benjamin on Sale”. He became a
silk in 1872, and a Bencher of Lincoln’s Inn
in 1875 but retired eight years later, living in
Paris where he died on 6th May 1884.
I mention this history of a remarkable man
because we have, with the seventh edition,
an array of eight current experts, guided
by Professor Guest as the General Editor.
The team have produced the final word
about selling goods in England and Wales
and overseas for the lawyer. It is to the
credit of Thomson Sweet and Maxwell that
they maintain the highest standards of their
publishing house with the contributions of
such an excellent team of leading academics
in the field. Indeed, we have the foremost
thinkers of the early twenty-first century
reflecting on an original work which Benjamin
would, I am sure, being extremely delighted
to see flourishing as the UK deals with the
avalanche of changes which have taken place
since the book was reconstructed in 1974.
KEY RECENT CHANGES TO “BENJAMIN”
So what’s in this book it for us at the
Independent Bar? Quite a few things,
actually, with a thorough and updated text
which supports the most relevant law for the
sale of goods.
Some of the benefits include:
• a comprehensive explanation
of the law of sale of goods,
including terms and conditions,
rights and obligations;
• establishing the formation and
nature of the contract of sale;
• examining the implications
of E-Commerce, including
electronic contracts and
payments, European Directives
protecting the consumer,
Letters of Credit and the eUCP
500;
• discussing the unfair contract
terms in commercial and
consumer sales;
• identifying the remedies
available when disputes arise;
• stating a contemporary view
of the latest developments
in legislation and case law
and their implications for all
aspects of sale of goods;
• incorporation of the new
Sale and Supply of Goods to
Consumers Regulations 2002,
and recent European Union
Directives protecting the
consumer;
• an expert commentary on the
overseas sales of Contracts
(Rights of Third Parties) Act
1999;
• an outline of the implications
of the Consumer Credit Act, in
force from March 2006; and
• an examination of new case
law updates to provide a
better understanding of their
implications from the author
team which conveys the
highest level of insight and
advice for practitioners.
The text offers comprehensive, high level
analysis of case law and legislation regarding
domestic and overseas sale of goods. No other
country in the world produces anything like
the Common Law Library and Benjamin is in
the top three library contenders with Chitty
on Contracts, and Clerk and Lindsell on Tort.
The depth of analysis in the new Benjamin
which is provided by recent case law shows
the practitioner just how the principles have
been applied and gives guidance on how to
tackle any issues that might arise. Judah
Philip Benjamin would be delighted to see
that the finest and highest traditions of
English jurisprudence are being maintained
well into the twentieth first century.
FROM BENJAMIN TO RUMPOLE
Without the least irony, another book arrived
at ‘The Barrister’- received, I hasten to add,
with much eagerness and anticipation- the
fifteenth Rumpole book: “Rumpole and the
Reign of Terror” (John Mortimer, Viking
Penguin £18.99 ISBN 0-670-91621-8). It

is politics by innuendo time again as Sir
John writes a narrative this time rather
than the specific short stories he is normally
associated with.
By my reckoning, Horace Rumpole must be
approaching 100 shortly, which gives new
meaning to the age for retirement, even
under New Labour, as Rumpole would surely
agree. Rumpole clearly should never retire,
as his humorous comments, deliciously and
politically incorrect, remain as relevant and
irreverent now as they did in the 1970s when
he first appeared in print. Many members
of the Bar will have a silent regard for the
cynicism of the ASBO, the ominous SIAC,
and Rumpole’s surprising interest in FLAC
(the Free Legal Advice Centre, or course)
which he did not appear to have considered
before. But Mortimer keeps the best for last
with his attack on the ‘new bureaucracy’ of
the practising certificate, and his view of the
‘control-freakery’ of CPD or ‘being required
to take lessons’ so you ‘score twelve points
a year to stay on as a hack’. Christmas
definitely came early last year, and I just
wonder in my idle moments what Benjamin
would have made of Rumpole!
_________________________________________
__________________
--------------------------------------------------------
---------------------
‘Working in the Family Justice
System
The official Handbook of the
Family Justice Council’
Elizabeth Walsh
Family Law 2006
0 85308 996 5
In excess of 360 pages
Review by Penny Booth Reader in Law,
Staffordshire University Law School.
The use of any book depends on what you
want to use it for. That’s obvious, really.
What is this book for? Well, some books
have just one use and others more than one.
Strangely, some books have a wide range of
uses – like this one does. The book appears
to be what it says on the cover – and that is
something to be pleased about because there
are very many books published in family law
which are not really on the inside what they
‘say on the tin’, to coin a current television
advert. The book covers materials on,
literally, working in the family justice system.
It benefits from being the second edition – a
clearer focus, a maturity in presentation and
material, and a thrust with the Family Justice
Council in mind. All the things you need in
your line of work. What’s not to like?
An issue which some readers may raise is
that the book is not a typical textbook on
family law.
However, the book is not intended to be a
text that covers the whole of the actual law
relating to family – it is a ‘how to’ and ‘who to’
and ‘what if’ and ‘when’ rather than spelling
out what the law says in a textbook-like
manner that, to be straight, you could get in
many textbooks because that is their function
and it is not the function of this particular
book. This book is about the system itself
and provides the reader (or the browser, as
I suspect it will be) with information on who
does what, where and when they do it to
whom or for whom. It certainly won’t replace
the many rules and regulations (nor is it
stated to do that), and it won’t mean protocol
notes can be ignored – far from it. By having
a handy reference book like this you might
find you have more time to pay attention
to those other things that might make your
working life more difficult – think about those
issues you have to think about and use a
book like this as your reference and checklist.
It does provide a guide, though, and a very
useful ‘map’ for those new to the family law
business, whether in court or out of court.
If you are working with families and issues
might – just might – end up in a legal setting
then it seems to me that you need a book like
this. It also, though, acts as a good reminder
for those in the know on what it is they know
about, with references and pointers, some
diagrams and plenty of points that need your
professional attention. Having said that, the
final chapter on ‘Common Knowledge’ might
be a good reminder for those whose common
knowledge sometimes escapes them – or
perhaps I merely speak for myself. Surely I
am not the only one who gets confused and
forgets? The final chapter is arguably one,
which the more experienced and practiced
might not want to spend too much time on,
but it remains vital to the practice of family
law and it is a mistake to ignore the outlined
matters. The less confident (and I include
myself, always) and those new to practice
would feel it a bonus to have to hand.
The Book Contents are clear throughout;
there is a table of statutes, SIs and other
guidance, reference to European and other
relevant legislation and the UN Convention
references that is noted in the text itself.
The list of abbreviations is helpful (don’t you
just hate it when abbreviations you don’t
know get used and you are stuck, and don’t
want to ask?) and serves to remind those
in Family Law (of whatever guise) just how
complex is the provision relating to families
and children. The clarity of the contents list
itself indicates and is reflected in the clarity
of the presentation of the chapters. The
stepped approach and clear sub-titles are a
the barrister 35
gift to the busy. At first glance it may appear
that a relatively short space is allocated to
each topic or sub-topic, but this actually
demonstrates that the book covers a great
deal of ground with focussed information
and spread, references to other resources
and that it acts as a grand reference text for
those actually working in the family justice
system.
Among the chapters is a helpful introduction
outlining current issues and changes in the
arena of family law over the last decade. This
is followed by a chapter giving information on
the Family Justice Council itself – you need to
know! The chapter on the Professionals, and
that following it on The System itself, is
probably of more use to those new to family
law, or who wish to use the text for reference
reading and sourcing. Many already working
in the system, particularly barristers and
solicitors will already know about the contents
of those two chapters, but the book seems
directed at more than just the two practicing
professions of barrister and solicitor so the
latter will bear that in mind. The chapter
on organising principles is vital for anyone
dealing with families – even if matters do
not get to court. The important principles
outlined include welfare, rights ( – human
and otherwise?), whether intervention is
appropriate, the access to information and
evidence – all of those important issues
which it would be easy to forget and for
which this text might even act as a checklist
in itself. That, alone, would be useful and
make acquisition worthwhile.
The appendix includes a list of resources
with helpful and thorough book sources
(some are more for the family members
than professionals) with appropriate relevant
contacts of a huge variety of organisations the
names of which are arranged alphabetically
with contact details, numbers and websites
where these are available – again, the classic
indicator of a useful reference text.
The Family Justice Council is worth attention
so perhaps we all need to read both about
them and what it is they are, themselves,
reading – that, alone, would be a good reason
to buy the book.
Well written and presented. What more?
Overall
The cost?
30 pounds.
What’s it worth?
More than that in your time alone.
Buy one.
Penny Booth
Reader in Law
Staffordshire University Law School
 36 the barrister
Running a business
Barristers are under pressure at the moment, for a wide variety of reasons. We complain vigorously
about government interference in the funding of litigation, and significant changes in the rules governing
our profession, but one of the major reasons for the pressure might be just plain bad management
By Bill Braithwaite QC, Head of Exchange Chambers
The Bar is a notoriously conservative
profession, and for years any chambers
which have taken a progressive approach
to the management of their business have
run the risk that those in authority would
disapprove. In a small profession, even
unspoken criticism can have a real effect.
Now that the pressures are affecting so many
barristers’ chambers, the Bar as a profession
is starting to notice that we are all running
businesses (or should be), and that therefore
we may have to take heed of some normal
business principles. Of course, for many it is
too late; chambers have been collapsing over
the last few years, or merging in an attempt
to avoid dissolution.
One of the fundamental aspects of ordinary
business management is recruitment. It is
frequently, if not universally, considered to
be inappropriate to “poach” barristers from
other chambers, although most businesses
would consider head-hunting to be a normal
part of their lives. Recruitment and selection
of personnel is a specialised business, and
chambers may find that they either have to
take advice from recruitment professionals, or
employ recruitment consultants. That would
necessarily involve individual barristers being
identified as suitable, approached with a
view to moving to join an alternative set, and
possibly even being offered incentives to make
an attractive package. Some chambers have
detailed remuneration packages for pupils,
and that might have to extend to qualified
barristers at all levels of experience.
Interestingly, we have started to see barristers
moving chambers on a more regular basis.
It has been, and probably still is, our
tradition that you join a set of chambers
with a view to staying there for life, but
that may change. It is becoming a matter
of survival to find a chambers which gives
the individual the best chance of building
a career. Therefore, those barristers who
have an understanding of the importance
of running a good business will start to
assess their opportunities. For example, it
may become relevant to examine all aspects
of one’s own chambers, and various others,
in order to assess career opportunities. That
will involve a consideration of management
and administration, including the quality of
the systems of public relations, marketing,
fee collection, staffing, recruitment and
selection. It is already expected by some
chambers that they would want to see an
applicant’s accounts for the last few years,
and also would need to be reassured about
health; all perfectly normal for any business,
particularly one which provides a people-
based service.
Of course, many traditional barristers would
take issue with the notion that chambers
operate a business; we are a profession, and
must not lose sight of that fact. I agree with
that view, but see a very obvious compromise,
which is that we are running businesses
providing professional services. Provided
we all remember that commercial pressures
must not intrude inappropriately, we should
be able to combine good business practices
with high professional standards.
Of course, a weakness of the profession in
this area has always been that all barristers
in chambers are self-employed, and the
conservative view is that therefore each
individual has an absolute right to manage
his or her own affairs with minimum regard
to the overall interests of chambers. More
progressive chambers may now take a more
corporate view, and ask members to put the
interests of the corporation on a par with
their own.
Another traditional perception is that a
tenancy in chambers is a job for life. Part
of the reason for this is the notion that,
because barristers are not partners, there
is no mechanism to ask a member to leave.
An alternative explanation may be that, in
the past, the pressures have never been so
severe that chambers require to operate at
maximum efficiency in order to survive; in
today’s climate, that attitude may have to
change.
Good recruitment may be one of the essential
changes which the Bar must make in order
to continue to provide a service of real
importance. That may mean that “poaching”
becomes an out-dated word, and that head-
hunting develops into a respectable part of
our business/professional world. If it did,
we would gradually create high quality
organisations, offering first rate services.
BILL BRAITHWAITE QC

consider the issues raised by the
p.1 use of bioinformation for forensic
purposes, in particular DNA. The
Council launched a consultation in
October to obtain views from both individuals
and organisations. The issues on which
the Council would particularly welcome
comments are summarised below.3
Are the current criteria for the
collection of DNA proportionate to the
aims of tackling crime?
The UK has the largest forensic DNA database
in the world. 4 At the end of December 2005,
the National DNA Database (NDNAD) held
DNA profiles from over 3 million individuals,
about 5.2 percent of the UK population.
On average, the profiles of 40,000 citizens
are added each month to the Database.
Predictions suggest that under present laws,
the Database could soon encompass up to 25
per cent of the male population and 7 per
cent of the female population. 5
The police in England and Wales have
powers, unrivalled internationally, to take a
DNA sample from any individual arrested for
a recordable offence, without their consent.
Victims and witnesses can also have their
DNA samples taken for elimination purposes,
and have no right to withdraw their consent.
The DNA profile is then stored on the
Database indefinitely, whether the person is
charged or not.
There can be no doubt that the Database
has become a significant crime-solving tool.
The detection rates for crimes where DNA
evidence is available are significantly higher,
at 40 per cent, than for those crime scenes
where no DNA evidence is recovered, at 26
per cent. 6 In domestic burglary the detection
rate rises from 16 per cent to 41 per cent
when DNA is recovered from the scene. 7
Recent public campaigns have highlighted
the inclusion on the NDNAD of individuals
who have been arrested but have not been
charged with any offence. These campaigns
have drawn particular attention to the
increasing numbers of children who have
their personal data retained on forensic
databases. By December 2005, there were
24,168 persons under 18 years of age on
the NDNAD who had not been charged or
cautioned for any offence. 8
The legality of the retention of DNA samples
and profiles from individuals who are not
subsequently charged or convicted of any
criminal offence after their arrest has been
reviewed by the House of Lords in R v Chief
Constable of South Yorkshire (ex parte S and
Marper) 9 It was decided that although the
retention of DNA may breach Article 8 of the
European Convention on Human Rights, the
breach was proportionate and justified in
the detection and investigation of crime. The
House of Lords also ruled that there was no
breach of Article 14. The case is soon to be
considered by the European Court of Human
Rights.
Should volunteers be able to
withdraw their consent at a later
stage?
Once volunteers (who may be victims,
witnesses or others helping the police)
consent to their profiles being put onto the
NDNAD, their decision is irrevocable. This
approach is contrary to standard practice in
medical research, and differs from practice
in Scotland and many European countries,
where consent can be withdrawn. 10 There is
also a lack of clarity as to whether the consent
obtained by the police from volunteers can
always be regarded as genuine consent, 11
as it is often given when individuals are
distressed or lack advice.
Who should have access to the
NDNAD?
The law is clear that bioinformation stored
on forensic databases may only be used for
purposes related to preventing, detecting,
and prosecuting crime. The NDNAD is used,
however, for forensic research purposes and
within wider police intelligence systems.
For example, forensic scientists have been
conducting research in an effort to be able
to develop an ethnic inference database for
predicting the likelihood of an undetected
offender having one ethnic appearance as
opposed to another. 12 However, research on
ethnic inferencing is controversial because
the links between genetic differences and
what is known as ‘race’ is complex. There
are no biologically distinct races, and the
relationship between skin colour and ancestry
is complicated and partially determined by
social factors. 13
Is familial searching a warranted
invasion of family privacy?
Scientists are finding new methods of using
DNA profiles for investigative purposes,
the barrister 37
including ‘familial searching’. Familial
searching of the NDNAD is used to identify
possible relatives of a person who left a crime
scene sample, when that person is not on the
Database. There were 78 familial searches
in 2005. 14 There are concerns about the
potential for invading family privacy, and
in particular, the risk of revealing possible
familial relationships that were previously
unknown. 15
Who should be involved in the
oversight of the NDNAD?
The expanding use of the NDNAD for both
investigative and research purposes means
that having oversight of the facility is
increasingly important. 16 The NDNAD is
governed by a Strategic Board comprising
representatives of the Home Office, the
Association of Chief Police Officers (ACPO),
and the Association of Police Authorities
(APA). Two members of the Human Genetics
Commission (HGC) have a role in providing
ethical review. There have been recent calls
for an additional external lay member on
the Board. The Home Office is currently
establishing an Ethics Committee to advise
the NDNAD Strategy Board on new proposed
uses of the Database and research proposals,
and to review the decisions that it makes.
Is the potential for bias within the
Database acceptable?
There have been concerns raised that the
sampling powers of the police have led to
biases in the populations held on the Database.
Some groups such as young males and black
ethnic minorities are disproportionately
represented ( a third of black males in
England and Wales are on the NDNAD).
Such over-representation means that the
impact of the retention of bioinformation on
databases is not equally shared amongst all
citizens. There have been suggestions that
when a person’s bioinformation is present
on a forensic database, it inevitably increases
the risk of suspicion being raised against
him or her, undermining the presumption of
innocence.
How should bioinformation be
transferred between different agencies
and countries?
The importance of co-operation over DNA
technologies and techniques is increasingly
recognised by domestic and international
law enforcement agencies. 17 The European
 38 the barrister
Network of Forensic Science Institutes has
agreed processes to facilitate exchange
of sensitive forensic data according to
internationally-agreed quality standards.
Exchanges of data are currently made on
a case-by-case basis. 18 However, not all
countries have the same safeguards in place
for the protection of the information. 19
Would the collection of DNA from
everyone at birth be more equitable?
It has been suggested that it would be more
equitable to collect DNA from everyone at
birth rather than collecting samples only
from those who come into contact with the
criminal justice system. The Prime Minister
recently has said he wants to see the
maximum number of people on the Database
to help fight crime. This approach would
ensure that the use of bioinformation was
equally applied to all citizens, regardless of
race, ethnicity, age or gender. However, it
could be argued that such an extension of
forensic databases would not only be costly
but would also be disproportionate to the
need to prevent and prosecute crime.
How should DNA evidence be used in court?
Recent successful criminal appeals have
highlighted the continuing risks attending
the use of complex statistical evidence in
criminal courts. Scientific evidence, and the
accompanying statistical data, may not be
properly understood by non-experts involved
in criminal proceedings, such as members of
a jury, or even lawyers and judges. There is
also concern that, while a DNA match cannot
be used in isolation from other evidence in a
prosecution, it may be given undue weight in
the courts.
The Nuffield Council Working Group
recognises that the Database has proved
to be an excellent tool in the crime-solving
process. However, the need for a debate of
the ethical issues raised by police powers to
take, store and analyse the DNA of suspects,
witnesses and victims remains. The Group,
which includes members with expertise in
law, genetics, philosophy and social science,
is looking forward to hearing a wide range
of views on the questions briefly summarised
in this article. We would welcome comments
from both individuals and organisations to
help us develop advice for policy makers. The
closing date for responses is 30 January 2007.
A Discussion Paper setting out the Group’s
findings will be published in autumn 2007.
Sir Bob Hepple QC, FBA, of Blackstone
Chambers is Chaiman of the Nuffield Council
on Bioethics, and Chairman of the Working
Group. He is Emeritus Master of Clare College
and Emeritus Professor of Law, University of
Cambridge. For further information see:
www.nuffieldbioethics.org
1Select Committee on Science and
Technology (2005) Session 2004-05, 7th
Report: Forensic Science on Trial (Norwich:
The Stationery Office).
2See: Select Committee on Science and
Technology (2005) Session 2004-05, 7th
Report: Forensic Science on Trial (Norwich:
The Stationery Office); GeneWatch UK,
The Police National DNA Database, 2005;
Williams, R. & P. Johnson, & P.Martin,
Genetic Information & Crime Investigation,
(2004) Available at: www.dur.ac.uk/
p.j.johnson/Williams_Johnson_Martin_
NDNAD_report_2004.pdf;
Human Genetics Commission Inside
Information: Balancing Interests in the Use
of Personal Genetic Data (Human Genetics
Commission, May 2002).
3For more information and to download
the Consultation Paper see: www.
nuffieldbioethics.org
4Home Office, DNA Expansion Programme
2000-2005: Reporting Achievement (2005)
Forensic Science and Pathology Unit, p.4.
5Williams R, Johnson P (2005)
Inclusiveness, effectiveness and
intrusiveness: issues in the developing uses
of DNA profiling in support of criminal
investigations J Law Med Ethics 33: 545-
558.
6Home Office, DNA Expansion Programme
2000-2005: Reporting Achievement (2005)
Forensic Science and Pathology Unit. p.16.
7Home Office, DNA Expansion Programme
2000-2005: Reporting Achievement (2005)
Forensic Science and Pathology Unit. p.16.
8Hansard Written Answers 8 February 2006
: Column 1269W
www.publications.parliament.uk/pa/
cm200506/cmhansrd/cm060208/text/
60208w25.htm.
9The claimants in Marper & S appealed
against the decision to retain their
fingerprint and DNA samples after they
were cleared of criminal charges. S had
been arrested for attempted robbery,
aged 11, and acquitted. Mr Marper (38
years of age and of good character) was
arrested and charged with harassment of
his partner but his partner did not press the
charge.
10In Scotland, the volunteer may limit
their consent for the use of their prints and
samples to the investigation and prosecution
of that specific offence only. Prints and
samples taken in this way may be checked
against DNA and fingerprints taken from
any crime scene and may be retained
by the police but only with the written
consent of the person from whom they were
taken. If the person does give consent for
their samples to be retained, they have the
right to withdraw that consent in writing at
any time.
11Expressions such as 'informed consent'
are often used but can be somewhat
misleading. The Nuffield Council on
Bioethics has previously reported on the
difficulties in defining, and obtaining, truly
‘informed consent’ (see paragraphs 6.19–
6.20 of:
http://www.nuffieldbioethics.org/go/
ourwork/humantissue/publicationlist
12NDNAD Annual Report 2004/05 p.33.
13See Keita SOY, Kittles RA, Royal CDM et
al. (2004) Conceptualizing human genetic
variation.
Nature Genetics Supplement, 36(11), S17-
S20.; Shriver MD, Parra EJ, Dios S et al.
(2003) Skin pigmentation, biogeographical
ancestry and admixture mapping. Human
Genetics, 112, 387-399;
Parra EJ, Kittles RA, Shriver MD (2004)
Implications of correlations between skin
color and genetic ancestry for biomedical
research. Nature Genetics Supplement,
36(11), S54-S60.
14Joan Ryan MP 9 May 2006, Hansard;
Column 209W.
15GeneWatch UK, The Police National DNA
Database, 2005;
www.dur.ac.uk/p.j.johnson/Williams_
Johnson_Martin_NDNAD_report_2004.pdf
16The NDNAD Custodian has authorised
at least 19 research projects since 1995.
House of Commons Science and Technology
Committee (2005). Forensic science on trial.
Seventh Report of Session 2005-05. HC 96-I.
17PostNote, February 2006 Number
258, Parliamentary Office of Science and
Technology, p.3.
18Since 2004 there have been 519 requests
from foreign countries from information
from the NDNAD. Joan Ryan MP, 5 June
2006, Hansard, Column 278W.
19PostNote, February 2006 Number
258, Parliamentary Office of Science and
Technology, p.4.
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