the barrister
#37
ESSENTIAL READING FOR BARRISTERS
3 rd J une 2008 – 31 st J uly 2008
TRINITY TERM ISSUE
From BVC to Pupillage – Routes, Obstacle
Courses, or Blocked Paths
It seems unlikely that those seeking to qualify and
practise as barristers, and indeed the profession
itself, have ever confronted a set of more serious,
complex, and in some cases contradictory chal-
lenges than they do at present.
Over recent years, BVC enrolments have been
growing steadily (driven in part by demand from
those from the very ethnic and socio-economic
backgrounds, that Bar must encourage into the
profession if its laudable policies on access and
diversity are to succeed).
However, pupillages have been declining, and
markedly so. Initially this may initially have been
caused by the introduction of mandatory fund-
ing for pupils. However, in recent years it has
Settlement gives Legal Aid Providers certainty
and stability for the future
The Law Society and Legal Services Commission
(LSC) recently concluded a negotiated settlement
of the litigation brought by the Society to
challenge the contract signed by legal practices
in April last year.
This settlement stems from the significant
success achieved by the Law Society in the
original litigation before the High Court.
Succeeding on almost all points raised, the Law
Society appealed the point that was lost. In reply,
the LSC appealled all the points that the Law
Society had won. The hearing before the Court
of Appeal was regarded as so significant that the
Lord Chief Justice sat.
The Court found for the Law Society with a costs
order in their favour.
It is perhaps significant that the LSC, in defeat,
indicated that they had anticipated that result.
This caused many practitioners to question
why the LSC chose to pursue expensive appeal
proceedings if the outcome was “anticipated”.
As a result of inaction on the part of the LSC in
E st . 1999 price
£3.00
www.barristermagazine.com ISSN 1468-926X
Features
almost certainly 3 Law and Society – Which is to
be Master?
been attributable In 2008 the Inner and Middle Temple
to some of the fun- celebrate the 400th anniversary of the
damental and long grant, by Letters Patent from James 1, of
all the freehold land around the Temple
term uncertain- Church. 1608 therefore marked the start
ties which face of the modern history of the Bar – at
the “independent” least that part of it which has grown up
Bar. These include, South of the Strand!
most notably: the By Mr Justice Aikens, Hon. Fellow, St
post-Carter chang- John's College, Cambridge
12
es to Legal Aid; the All or nothing? - An overview
increasing number of restrictions on parents
Richard de Friend
of solicitors with decision-making powers
Director, College of Law,
higher rights (and Parents with parental authority are
London, Bloomsbury
the likelihood that overridden easily once the welfare
the SRA will make principle and public policy are
considered. The child is ultimately
it even easier to acquire them); and, as p.38
protected – whether by the state or by
their call on the welfare principle.
By Penny Booth, Professor of Child
and Family Law and Moyra Throssell,
Post Graduate student Staffordshire
University Law School
14 Fit for Purpose? The Review of
Low Template DNA
response to the Court of Appeal judgment, the The use of Low Copy Number (LCN)
Law Society issued Judicial Review proceedings DNA in forensic science, and the criminal
justice system, has been affected in
- with costs escalating, a bold but confident
the wake of Justice Weir’s ruling in
decision. the trial of Mr Sean Hoey (The Omagh
Bombing Trial) ; “I am not satisfied that
It was therefore welcome that the LSC and the the publishing of two journal articles
describing a process invented by the
Law Society finally sat around the table together authors can be regarded, without more,
with the Ministry of Justice and brought this as having "validated" that process for the
expensive litigation to an end. purpose of its being confidently used for
evidential purposes.”
By Professor Allan Jamieson and Dr
The negotiations secured the following:
Rhonda Wheate, The Forensic Institute
• An increase of 2% on all legal help fixed fees
and underlying hourly rates from 1st July 2008. News
• Care level 2 fee increases from £347 to £405.
• A 5% increase in controlled legal representation p.20 BVT could result in a shortage of
(CLR) fees and rates for mental health. criminal lawyers
• A 5% increase in CLR fees and rates for p.21 LSC publishes 'route map' for civil
immigration. legal aid
• A delay in implementing private law family
litigators’ graduated fees. editor: nigel simmonds
0870 766 2715
• A closed list of CLACS and CLANS planned for email: info@barristermagazine.com
the period ending April 2010. publishers: media management corporation ltd
• A moratorium by the LSC in not seeking publishing director: derek payne
to recover historic unrecouped payments
p.4 Design and Production: Alan Pritchard
on account (UPOAs) over 6 years old and email: info@soinspire.me.uk
Printed by: Newnorth, Milton Keynes

Law and Society – Which is to be Master?
By Mr Justice Aikens, Hon. Fellow, St John's College, Cambridge
I
n 2008 the Inner and Middle Temple
celebrate the 400th anniversary of the
grant, by Letters Patent from James
1, of all the freehold land around
the Temple Church. 1608 therefore
marked the start of the modern history
of the Bar – at least that part of it which has
grown up South of the Strand! To mark this
important anniversary the two Inns are hold-
ing a year long celebration. The “intellectual
backbone” to the celebrations is being pro-
vided by a series of five symposia, or public
meetings, under the general title: “The Law
and Society – which is to be Master?”. The
world – renowned Greek charitable organi-
sation, The Alexander Onassis Public Benefit
Foundation, has generously sponsored the
series. Why are we holding these symposia
and what do we hope that they will achieve?
During the 400 years after 1608, lawyers –
the judges, barristers and solicitors - have
been central in laying the foundation in
England and Wales of the rule of law and in
creating many legal principles that we now
take for granted. Some examples are: the
supremacy of the rule of law over the wishes
of the Executive (from which, some argue, is
derived the modern remedy of “judicial re-
view of administrative action”); the right to
free speech (but also its curtailment by the
law of defamation); the illegality of slavery in
Britain; the general rule of no imprisonment
without charge; and the right to trial by jury
for serious crimes.
These principles have largely been set out in
the decisions of the judges, which make up
the common law. The common law’s con-
tribution to legal principle is thus unique, be-
cause it is organic. It matures over genera-
tions and rarely changes abruptly. So, in a
lecture in 2006 Lord Justice Laws described
the common law as “an emollient regimen”.
But its critics suggest that it sometimes lags
behind the rapid changes in modern society
and its needs.
However, the law is not an abstract construc-
tion of rules. Laws are made in order to
O
regulate relationships in the real world;
those between individuals and those between
ne individuals and other groups in society; or
society as a whole. The law and society have
developed together, although not always
harmoniously. Sometimes it appeared that
there were clashes between the aspirations
of groups in society and the law – eg. the fa-
mous cases about strikes in the early part of
the 20th century. Sometimes it was clear that
the law had not caught up with advances in
society and had to adapt. A prime example
must be the (reluctant) recognition in Dono-
ghue v Stevenson that the law had to create a
new framework of rights and duties in an era
of mass production and mass distribution of
goods The purpose of this series of symposia
is to explore the interaction between the law
(in particular the common law) and lawyers
and other fields which also fundamentally af-
fect humanity. There are many areas we
could have examined. We chose to explore
the relationships between the law and each
of: science, religion, politics, commerce
and international relations.
When we started to think about the topics to
be considered, we became conscious of two
facts. First, that many of our fundamental
ideas on law and about the other topics iden-
tified - and many of the arguments which still
rage - stem from the ancient Greece. Second-
ly, that many principles from the seventeenth
century have also continued fundamentally
to affect us in today’s world. The first aim of
these symposia is to remind us of this histori-
cal context of the common law heritage.
As an example, take Plato’s view, expressed in
The Republic, that the judges should be “the
guardians of the laws and the servants of
kingly power”. James VI and 1 would have
approved of this idea. But his Chief Justice of
the King’s Bench, Sir Edward Coke, might be
said to have been the true heir of Aristotle’s
view that there must be “constitutionalism”
or a rule of law which binds all; with the mag-
istrate being the guardian of both justice and
equality before the law. Indeed, it has been
argued that the Aristotelian idea of the rule
of law “…has permeated the culture of Brit-
ish constitutional understanding” . Only last
month, the Divisional Court was reminding
us that the rule of law must be paramount in
a democratic society.
Then take the relationship between law and
religion. Plato urged laws to prevent people
suggesting “that God, being good, can cause
harm or evil to any man” – which implies a
control of religious views by law. Aristo-
tle recommended that laws should control
education and should inflict chastisement
and penalties on those who disobeyed (Ni-
chomachean Ethics Book 10). Aristotle’s
writings on religion and science (particular-
ly logic) have remained a basis for modern
thinking.
At the time when James VI and 1 granted the
land to the two Inns, the common law that
emerged from The Temple was fashioning
the modern English constitution. Our consti-
tutional principles have remained largely the
product of the common law, rather than being
confined to statutes or codes. Of course, this
development did not stop in the seventeenth
century, with its famous constitutional cases
which were battles between Coke and his
successors and James 1 and Charles 1. Nor
did it stop in the eighteenth century with such
landmark cases as Entinck v Carrington or
Somerset’s case. In 2006 the House of Lords
had to pronounce on the legality of the Hunt-
ing Act 2004 and the scope of the Parliament
Acts 1911 and 1949, with Sir Sydney Ken-
tridge QC leading the argument that the 1949
Act and, consequently, the Hunting Act 2004,
were invalid. Their Lordships’ decision rests,
ultimately, on the doctrine of the supremacy
of Parliament, a doctrine that originated in
seventeenth century English cases.
Developments in early seventeenth century
England and Europe were important in other
the barrister 03
areas we wished to explore, as a few exam-
ples will illustrate. Sir Francis Bacon, James
1’s Lord Chancellor, remains famous for his
Essays, but perhaps more important was his
work on the development of scientific method
and the use of induction as a means of scien-
tific proof. Hobbes not only fundamentally
questioned the basis and function of state
power. He also challenged the traditional
relationship between Church and State and
foreshadowed Enlightenment notions of re-
ligious toleration. In Europe, Grotius’ great
work on international law, De Jure ac Pacis,
was published in 1625 when the Thirty Years
War was creating havoc across the centre of
the continent. It remains a leading source
of international law today. The economic
doctrine of the era, mercantilism, gave rise
to the English Navigation Acts and Colbert’s
centralised control of economic activity in
France. The battle between regulation and
the later doctrine of free trade and between
state control of commercial activities and
laissez – faire continues in the 21st century.
This brings us to the second main aim of
these symposia: to explore whether or not
the current influence of the law (in particu-
lar the common law) on these five aspects of
society’s activities is for good or ill. The
general question might be: does the law (in
particular the common law) simply reflect
and follow the developments that have taken
place in society in the fields of politics, sci-
ence, religion, commerce and international
relations; or has the law enabled, assisted or
hindered these developments?
In the first symposium, on Law and Science,
the distinguished panel of speakers consisted
of Baroness Deech (who had been chair of the
Human Fertilisation and Embryology Author-
ity), Sir Tim Hunt FRS (a Nobel Laureate for
medicine), Sir David King FRS, (just retired
as the Chief Scientific Advisor to the govern-
ment), and the well known scientist Lord
Winston. The meeting was held in the Royal
Society and chaired by its President, Lord
Rees. There was a lively debate on whether
scientists needed a legal framework and reg-
ulation to guide their research, or whether
laws frustrated the advancement of science
and so, ultimately, hindered science from
benefiting humanity. Opinion was equally
divided.
In the second symposium, on Law and Re-
ligion, there was an equally distinguished
panel of speakers, chaired by Anna Ford,
who is a Bencher of Middle Temple. We
heard contributions from Professor AC Gray-
ling, the philosopher and atheist; Professor
Mona Siddiqui, Professor of Islamic Stud-
ies at Glasgow University, the Rt Rev Lord
Eames, former Archbishop of Armagh, and
Lord Justice Rix. There was a keen debate
on whether religion should have any part in
public life – eg. in politics, or education and
what is the proper balance between ensuring
religious toleration and maintaining
public order.
p.33
The next symposium will take place
 04 the barrister
where the amount outstanding is
p.1 less than £20,000.
• New provisions for the
reconciliation of standard monthly
payments (SMP’s), designed to keep changes
to a minimum, provide for the right to
undertake remainder work on a no fault
termination of the contract.
• A commitment that there will be no price
competitive tendering for civil or family work
before 2013.
In addition the LSC agreed to publish a route
map that is effectively a 5 year programme
setting out its plans for the development of
civil legal aid contracts.
This route map sets out principles for
consultation and a timetable for proposed
changes to fees, contractual arrangements
and best value tendering.
The approach to UPOAs will alleviate the
administrative burden and financial anxiety
that has been felt by many firms. Many
practitioners had despaired at demands by
the LSC for repayment of UPOAs from many
years before. Files had long since been closed
or even destroyed leaving practitioners unable
to locate information about the payments. In
many instances no repayment was due.
The settlement means that firms can agree to
make no further claim on the fund and any
UPOAs will be treated as a final payment or
the firm may report on a case by case basis
when the UPOA will be taken into account.
Exceptions to this amnesty will include
UPOAs in excess of £20k, where recoupment
has already been agreed or where a “debit
notice “has been issued.
The postponement of BVT for civil or family
work does provide at long last some level of
stability that is vital for organisations to be
able to plan for the future.
Some sectors of the profession have felt left
out of the process.
For criminal practitioners, the only significant
matter to arise from the negotiations is the
commitment by the LSC to delay BVT in
criminal legal aid by 6 months to a date not
before July 2009.
This brings into question why BVT in civil
or family work is delayed by 5 years when
criminal practitioners need to position
themselves to be able to tender for work
in a fifth of the time, particularly in light of
recent changes, including police station fixed
fees, the new litigators fee and the graduated
fee. Practitioners will also have to come to
terms with running the single fee for Crown
Court work that is also due to be introduced
in July 2009 at the same time as the possible
start date for BVT in police stations and
Magistrates Court work.
Clearly, there is merit in allowing these
changes to bed in and thereby enable
practitioners to align there businesses to be
in a position to properly tender for work.
The LSC should be persuaded that there is
little argument to postponing BVT in criminal
work to accord with civil.
In his review, Lord Carter anticipated BVT
being introduced in a stable environment
with the availability of increased work loads
to allow for realistic tendering. A walk into
almost any Magistrates Court in the country
today will see the previously extensive lists
decimated with court rooms and corridors
ghost like. Lord Carter could not have
envisaged the paucity of defendants before
the Court and the impact upon case loads
brought about by means testing, conditional
cautioning and fixed penalties, especially
those that seem to have been imposed in
inappropriate situations.
The financial benefits are welcomed with
some caution.
The civil lawyers who will benefit from
the increase of 2% on legal help work may
regard that as a paltry increase in view of
the historic lack of increase over many years
but at least it is an increase! Again criminal
practitioners see nothing of this. Indeed they
may feel particularly disadvantaged when
some of those whom they represent who
find themselves serving custodial sentences
appear to be in line to receive an increase of
20% in their weekly prison income.
The closed list of CLACS and CLANS
anticipated to cite 15 areas in which the LSC
will work with the local authority and other
providers to introduce a CLAC or a CLAN,
may give some comfort to providers in other
areas. However, it is acknowledged by the
LSC that it is crucial to involve the local
authorities and they must be looking with
some concern at what has recently happened
in Cornwall.
Cornwall County Council, who had been
working with the LSC and providers in
the area with a view to launching a CLAN,
recently announced it’s withdrawal from
that position. The introduction of a CLAC or
CLAN will see the termination of contracts
of other providers in the area. The concern
of the Council in Cornwall was that the
introduction of a CLAN was likely to eliminate
a number of providers, both solicitor and not
for profit organisations in their area. The
local authority clearly took a responsible
view in seeking to secure the sustainability of
the provision of legal services in an area that
poses significant geographical restraints on
clients seeking access to such advice.
The Delivery Transformation proposals
are intended to secure a likely saving
of £7 million per annum for the LSC in
simplifying their processes, expanding
electronic communication with practitioners
and devolving further responsibilities to
practitioners. This raises the concern
amongst solicitors that the LSC is divesting
itself of administrative tasks and passing
them onto providers without reimbursement.
There must also be the concern, not only
for providers but also for the LSC over the
recent disastrous attempt to introduce LSC
On-Line. This required the withdrawal of the
service by the LSC. A limited pilot will seek
to correct the failings in the system before its
re-introduction.
Overall the settlement achieved by the Law
Society in its negotiations with the LSC is
probably the best that could have been
obtained for civil practitioners, although some
groups representing specialist practitioners
have felt aggrieved that they were not more
involved in the negotiation process.
Des Hudson, Chief Executive of the Law
Society, who led the negotiations, has been
at pains to stress that this settlement is not
the end but only the beginning of the ongoing
work that needs to be done on behalf of legal
aid practitioners.
The Court of Appeal judgment will clearly
affect the contractual relationships between
the LSC and legal aid providers. It means that
there can be no unilateral right reserved to
the LSC to amend contracts. Conditions will
need to be clear and any amendment clauses
will need to be narrowly constructed.
Finally, the agreement does provide a period
of certainty and stability for civil legal aid
practitioners in this extremely difficult time.
It can only be hoped that this successful piece
of litigation against the LSC will induce a
more effective discussion process between
the LSC and the various representative
organisations.
Roy Morgan
Morgans Solicitors and Chairman LAPG
 06 the barrister the barrister 07
Fraud trials: Plea negotiation- Plea Bargaining
advice. The question is whether this advice will be adequate. I would
suggest that the basic requirements of such advice can be summarised
as follows:-

Any reform, particularly one as drastic as introducing negotiated justice must, I believe, be Access to lawyers who can advise:
a. On the procedure to which the suspect/accused is already subject.
accompanied by an assurance that it would not diminish the public’s trust in the fair and even- b. The nature and possible outcomes of plea negotiation.
c. The consequence of such outcomes:
handed dispensation of criminal justice
(i) penal, including loss of liberty, loss of reputation, financial penalty,
disqualification, compensation orders, confiscation orders, community
By Monty Raphael, joint head of the Fraud and Regulatory department, Peters & Peters penalties and costs

T
he decision to put the Old
Bailey’s cases online reveals
that until the mid-19th
century judges and juries at
that Court could sometimes
get through three whole trials
in a day. True, few, if any, accused were
represented, but still, such efficiency must
inspire those in Whitehall anxious to see a
return to such judicial efficiency.
While the inconvenient intervention of
representation by counsel, and the necessary
complexities of modern fraud cases make this
rate of progress a little ambitious, there can
still be discerned in the Attorney General’s
recent consultation paper, a wish perhaps
that this was not the case.
The plain fact is that full-blown fraud trials,
with all their guarantees of due process,
are no longer seen as affordable. No-one
would argue against early dialogue between
prosecution and defence, but only if both
parties to such dialogue are equally matched
in experience and expertise, and both know
the strength of the Crown’s case and, indeed,
such weaknesses as are known only to the
Crown. The preservation of the burden of
proof, and the presumption of innocence
both impose fundamental constraints on
consensual or collaborative justice. That
we are in danger of forgetting this truism is
due to the failure of successive Governments
to implement coherent policies for policing
white collar crime. Indeed, this omission is
true across the whole criminal calendar.
Instead, we have had decades of Royal
Commissions, Law Commissions, Working
Groups, and One-Man Enquiries, all
recommending piecemeal remedies, of which
some have been adopted and others ignored,
often for reasons of financial economy.
We have been left with a plethora of
prosecution agencies, interpreting policies in
their own individual ways while dealing with
a problem, the increasing threat from large
scale fraud, inefficiently and with horrendous
losses to the Revenue and the legitimate
economy. We have grafted on ideas from
the inquisitorial systems of our European
neighbours and borrowed others from civil
jurisprudence, while all the while diminishing
investigative resources and failing to send
a clear signal to those contemplating the
commission of these serious crimes. Whether
one is caught, and if caught prosecuted at all,
has become even more of a lottery than is any
way inevitable in a free society governed by
the rule of law.
Any reform, particularly one as drastic
as introducing negotiated justice must, I
believe, be accompanied by an assurance
that it would not diminish the public’s trust
in the fair and even-handed dispensation of
criminal justice. It must be part of a coherent
policy which makes transparent why some
white collar crime, even when discovered,
is met with civil or administrative penalties,
while others are not. None are victimless
crimes, so why are some visited with naming
and shaming, others by financial penalties,
and the remainder by criminal sanctions.
Why, even after the latest Government Fraud
Review, would the reporting of fraud only be
encouraged rather than be made mandatory.
Why will only some of our 43 police forces be
adequately resourced to investigate fraud.
Is it enough to concentrate on the
comparatively small number of fraud cases
that are brought before the Courts and then
either put the blame for the acquittals of
some on the ignorance or credulity of juries,
or on the absence of a formal plea bargaining
regime.
If the answer is that some reform is better
than no reform, should we not be astute in
assuring that any measures introduced can
be seen to be fair rather than just efficient
in terms of saving time and money. The
Consultation Paper records the extraordinary
statistic that in the USA 98% of all criminal
cases are resolved by some form of negotiating
plea. At the same time, the Chairman of the
Fraud Review Working Group is quoted as
saying that the proposed UK reform is but a
“distant cousin” of the US system. If this is
meant to reassure, it does not. It may be
enough to echo the words of the Lord Justice
of Appeal in a recent extradition case, when
he commented unfavourably on negotiations
with a prospective extraditee as follows:
“We make no secret of the fact that we view
with a degree of distaste the way in which
the American authorities are alleged to have
approached the plea bargain negotiations.
Viewed from the perspective of an English
Court, the notion that a prosecutor may seek
to induce a plea of guilty on the basis that
substantial benefits will be withdrawn if one
is not forthcoming is an anathema”.
Indeed Stephen Hockman QC is reported
as conceding: “In America, defendants
sometimes are coerced into pleading guilty
because of the huge sentences that are
available to Judges on a guilty verdict, which
makes it too dangerous to contemplate a full
trial”. Any threat of the deprivation of liberty
is huge, but particularly so when an innocent
accused is terrified or coerced into pleading
guilty with a promise, perhaps, of no custodial
sentence. Only the most complacent would
believe that our criminal justice system has
been, or will become, so perfect that there will
be no significant number of innocent persons
who plead guilty for a variety of reasons,
coercion being not the least of them.
Mr. Hockman goes on to say: “The proposals
for England and Wales have the advantage that
they do not require parliamentary legislation
and can be introduced relatively easily under
existing law”. Far from applauding this
shortcut, should we not be alarmed by yet
another example of parliamentary debate
being denied to a fundamental change in
our criminal justice policy, particularly when
the safeguards which the committee and the
Attorney General accept are necessary may
not, in reality, be put in place.
There is an acknowledgment in both the
Committee’s recommendations and the
Consultation Paper that anyone entering
upon a plea negotiation must receive legal
(ii) civil liability – exposure to third party claims – the effect of a
conviction by negotiated plea in any subsequent class action
(iii) the loss of employment or employment prospects
(iv) possible deportation or difficulties in obtaining a visa to enter
certain countries
(v) the effect of the plea on investigations in another jurisdiction and
the possible heightened exposure to an application for extradition
to a third country
(x) debarrment from office or ability to bid for certain contracts (also
a concern for corporations).
Ideally the corporate or individual would receive all the necessary
advice from a one stop firm with the addition of counsel. Corporations
may be able to do just that, because they have the means to instruct
law firms with these skills if they so choose. Individuals, on the other
hand, must rely on access funded by (a) themselves – if their assets are
adequate and not the subject of restraint orders which cannot ordinarily
be varied to provide for such expenditure, or (b) by insurance through
Director and Officer policies which may or may not afford sufficient
cover but will often be refused because the insured admits delinquency
which is an excluded risk, (c) through the generosity and goodwill of
a corporate employer, whose sentiment is very likely blunted by either
itself being the victim of the fraud or where the corporation and officer/
employee are alleged accomplices will nonetheless be hesitant to assist
lest such largesse be criticised by shareholders and/or the agency with
which the corporation is co-operating. A salutary reminder of this
problem is provided by an ongoing case in the United States involving
the former partners of KPMG. In the U.S. –v- Jeffrey Stein the trial Judge
dismissed tax fraud charges against a number of former partners of the
accountancy practice because he found that they had been deprived
of their constitutional rights as a result of the prosecution, so it was
alleged, pressuring the firm to stop funding the accused ex partners if
they, themselves, wanted to arrange a satisfactory outcome for the firm
as a whole. This case is currently under appeal.
There is surely something of a paradox where corporations which are
almost always well funded, and which are anyway both immortal and
immune to imprisonment, should be best able financially to take care of
themselves; whereas, loyal and long serving officers or employees can
find themselves exposed to the vagaries and uncertainties of a criminal
justice system made more oppressive by the prospect of enforced entry
into plea negotiations without adequate professional assistance.
d. Funding may be provided by third party well-wishers. In practice
these usually turn out to be few in number, and the suspect’s previously
dependable close friends who, if their emotions and wallets are still
engaged, would prefer to provide for the suspect’s dependents than
enrich a bunch of lawyers.
e. The Public Purse. Little comfort may perhaps be derived from the
Attorney
 08 the barrister
General’s assurance that legal aid will be
available because, firstly, it may not be
available to cover all the advice required,
secondly, if it is, it is certainly not going to
provide adequate remuneration sufficient to
attract the sort of expertise and experience
that is necessary to provide adequate support
to a party to plea negotiations. Here again,
one must recall the recent confiscation
proceedings which collapsed because the
legally aided accused could find no senior
member of the bar who was willing to
undertake the work at the rate offered by the
public purse.
Readers of the Barrister will only be too aware
that the number of law firms and members
of the Bar continuing to offer publicly funded
advice and representation in serious and
complex fraud matters has significantly
diminished, and is likely to diminish further
as the full impact of the Carter Review
becomes ever more apparent.
It is hypocritical to imply that the American
system of plea bargaining is not an example
to be followed, while introducing many of its
features and exposing a suspect to many of
the imperfections of their system. 98% pleas
of guilty in a legal system, where the less well
off (the majority) have to use a publicly funded
service which, while not universally bad, is
acknowledged to significantly fail to provide
basic safeguards, and where the system is
coercive in the extreme is not a relative to
claim even as a distant cousin.
Being able to engage with the prosecution
in white collar cases is a laudable reform,
but only if it is not implemented as a cheap
and inadequate bureaucratic convenience
which provides few, if any, safeguards for all,
save the unrestrained rich and well funded
corporate client.
(The views expressed in this article are those
of the author alone, and do not necessarily
represent those of Peters & Peters, or the
Fraud Advisory Panel)
© MONTY RAPHAEL 2008
Monty has been with Peters & Peters
throughout his legal career, which spans
over 40 years. Senior Partner until 30 April
2005, he now remains with the firm as full-
time consultant and is joint head of our Fraud
and Regulatory department. He is widely
acknowledged as one of the UK's leading
fraud lawyers
The barrister magazine
cannot accept responsibility
for information supplied
by other parties, views expressed
may not
necessarily be that of
the editor or publishers.
For the greater good?
Thom Dyke examines the role of pro bono work and looks at what the future holds for free
legal representation.
P
ro bono work has long been
considered the sine qua
non of a career in law. The
head of pro bono at Clifford
Chance, Michael Smyth,
has stated that “I regard
pro bono activity as the lawyers' equivalent
of the Hippocratic oath”. However, after a
turbulent decade of government reforms to
legal services, it is perhaps worth taking a
moment to reflect of the current and future
role of pro bono work in the legal profession.
Despite the overall fall in levels of litigation
since the reforms of Lord Woolf, there are still
a considerable number of cases which exist
outside the realm of the publicly-funded legal
services market. The number of these cases
may well be set to rise given the problems
with the various proposals made by the Legal
Services Commission, which have been raised
in these pages recently by the Chairman of
the Bar Council, Tim Dutton QC.
Labour’s reforms
The primary role of pro bono work is to
help those who lack the ability to pursue
justice either through private means or
the legal aid system. But to determine the
current relationship between funded and
unfunded legal work, it is necessary to
go back to 1996, when Lord Irvine, then
shadow Lord Chancellor, stated the principles
underpinning Labour’s support of pro bono
work. He argued that “there is no greater
unfairness than the legally unrepresented
applicant against the legally represented
employer in industrial tribunals”. Outlining
Labour’s law reform proposals in advance of
the 1997 general election, Tony Blair accused
the Conservatives of reducing the legal aid
coverage from 79 per cent of the population
in 1979 to just 48 per cent.
Despite this, and in stark contrast to the other
public services, legal aid was not set to receive
a large injection of funding. Lawyers watched
enviously as NHS spending increased from
£34.7 billion in 1997/98 to £90.7 billion in
2007/2008. Lord Irvine set the tone when he
noted that ‘Labour will have no new money
to throw at problems whose solution calls
for structural change’. Instead the focus of
the Woolf reforms was towards improving
alternative dispute resolution, encouraging
pre-trial settlement and better exchange of
information between parties. Pro bono was
seen as a key in the structural reforms that
were to take place over the next decade, with
the establishment of the Bar Pro Bono Unit by
Lord Goldsmith. The position of the Attorney
General’s Pro Bono Envoy was established,
and Mike Napier QC of Irwin Mitchell was
appointed to champion pro bono work.
Plugging the funding gap
Given the emphasis placed on the role of pro
bono, a cynic might be forgiven for concluding
that the government was attempting to rely
on the goodwill of pro bono lawyers, to take
up the slack from cases that would have
previously received legal aid. This view is
supported by the Conservative’s shadow
Attorney General, Dominic Grieve. “I have
always been extremely supportive of the need
for pro bono work, however, I have absolutely
no doubt that the government is using pro
bono to prop up other legal services”.
As he observes, given the sheer scale of
legally funded work in comparison with
pro bono, “the idea you can wheel out pro
bono to plug a hole in legal aid funding is
simply unrealistic”. This reliance is likely to
the barrister 09
hit the larger city law firms hardest claims
Michael Smyth. “It seems logical to predict
that increasing pressure will be placed
on larger city firms to take up the slack in
terms of their pro bono responsibilities”.
However this view is strongly refuted by Mike
Napier. “The Attorney-General has always
made it absolutely clear inside and outside
Government that pro bono is not for plugging
holes in legal aid.”
Robert Gill, chief executive of LawWorks
(formerly the Solicitors Pro Bono Group) takes
a different view. "I agree that there is, and
there will always be a slight tension between
government funded legal aid and pro bono,
but this isn't something which should be
shied away from. Unmet need exists and
we try to help meet that need. Arguing over
who should pay or provide is of no help to the
person in need.”
Further problems
Nonetheless, as Dominic Grieve has
recognised, the tension between funded legal
work and pro bono can produce other types
of inequality. “One of the consequences of this
over-reliance is that firms are cherry-picking
the most interesting pro bono work available.
There is considerable anecdotal evidence that
this is impacting upon the uptake of more
routine work.”
The reality of this problem is one which is
already facing the larger city firms. Michael
Smyth argues that "I do worry that with
the Attorney Generals’ well intentioned
recommendation that up to ten per cent of
pro bono be earmarked for international
pro bono, that there will be a drift towards
glamour mandates. If American trends are
any guide, there will inevitably be a tension
between 'trophy pro bono' and traditional
 10 the barrister
'below the line' welfare advice".
The worry that firms will move towards only
taking on ‘trophy’ work is one shared by Kara
Irwin, Director of Pro Bono Services at BPP
Law School in London. “It is a concern, and
it is one that pro bono coordinators on the
whole need to be aware of in order to foster
a balance in the work done by the firms.”
However, these problems have to be weighed
against potential positive effects of taking on
high profile pro bono clients. “International
pro bono work can often capture the attention
of lawyers who might not otherwise be
involved in pro bono at all”.
Student pro bono
It’s not just well established city firms who
have seen changes in the type of work they
take on. As a young barrister, former Attorney
General Lord Goldsmith helped to found
a pro bono legal advice centre in Bethnal
Green in the 1970s. Today, law students are
entering an increasingly competitive legal
recruitment market and it has become more
important than ever to demonstrate a serious
commitment to pro bono work.
Paul Wilmshurst is an English barrister
currently working for McCarthy Tétrault in
Toronto Canada on a Middle Temple Fox
scholarship. He spent time volunteering at
Toynbee Hall’s legal advice centre during his
time as a student on the Bar Vocational Course.
“There are many barristers and solicitors
who began working at Toynbee as students
and there is a real sense of community bound
together by the common desire to help those
who come seeking help.”
However there are issues over how student
pro bono work is funded and supported
through institutions. Robert Gill notes that
“for every pro bono opportunity law schools
are able to offer their students, there are
seven or eight students they don't have
places for”. Law schools are increasingly
recognising the importance of ensuring
students have access to well supported pro
the barrister 11
bono projects, by improving their links with Free Representation Unit
the many community law centres which www.freerepresentationunit.org.uk
already exist, and through aiming to change 0207 611 9555
the academic culture which exists in some
departments. LawWorks are providing LawWorks
assistance to universities as Robert Gill www.lawworks.org.uk
explained. “One of our central challenges is 0207 929 5601
the need to overcome the notion that law is
a purely academic subject. We are working Law Centres
hard to get across message that pro bono www.lawcentres.org.uk
is not just a distraction from the law, but 0207 428 4400
integral to it”.
Bar Pro Bono Unit
www.barprobono.org.uk
Alternative Dispute Resolution 0207 611 9500
Given the pressures which have been placed Toynbee Hall
upon pro bono providers, they have been www.toynbeehall.org.uk
quick to respond to changes in the nature 0207 247 6943
of the legal system. Following Lord Woolf’s
reforms, the increase for alternative dispute
resolution (ADR) has lead to a demand for pro
bono providers to start providing mediation
and arbitration services. As Robert Gill
states, “there is a growing perception within
the Ministry of Justice that mediation can be
used relieve pressure on the court system and
provide a more equable outcome. Mediation
is now part of the national legal fabric, and
pro bono mediation forms another part
of that natural order”. Given the concerns
raised over whether pro bono is being to
plug a funding gap for traditional litigation,
reliance on pro bono ADR should be treated
with caution.
Conclusion
It is clear that pro bono work will continue
to remain a vital part of the profession. Yet
serious questions remain as to what role it
should be expected to play in a constantly
changing marketplace. The government
would do well to reassure critics that it
is unequivocally committed to a vision of
pro bono services that run in parallel to a
properly funded legal aid system, rather than
as a substitute for it.
The author is a barrister.
 12 the barrister the barrister 13
All or nothing? - An overview of restrictions on
is not enough that a child may understand Parents are not permitted to make martyrs and consultation, and agreement from all
the nature of their medical condition but of their children (Black J, Re MM (Medical holding parental responsibility is required

parents decision-making powers

they must also have an understanding of
what the treatment entails and possible
side effects, similarly in refusing treatment
a child must show an understanding of the
Parents with parental authority are overridden easily once the welfare principle and public policy are consequences. In Re R (A Minor) (Wardship:
considered. The child is ultimately protected – whether by the state or by their call on the welfare Consent to Medical Treatment) 1992 1
FLR 190 the Court of Appeal unanimously
principle.
sanctioned the treatment given to the child.
Lord Donaldson MR said, albeit obiter, that
By Penny Booth, Professor of Child and Family Law and Moyra Throssell, Postgraduate student Gillick had decided that a competent child
Staffordshire University Law School
Treatment) [2000] 1 FLR 224) and the courts
will authorise treatments where it is in the
best interest of the child and ultimately, the
state can intervene and substitute its own
decision in place of either parent or child
or both.
Can parents ‘pass the buck? Or have
it removed?
on the most fundamental issues affecting a
child’s upbringing.
Perhaps just some of it?
It seems to be that parental responsibility
as a concept comes second in importance
value to the welfare of the child and the state
retains the statutory right to restrain the
decision making abilities of all those with

T
wenty years ago statutes
referred to ‘parental rights and
duties’, ‘rights and authority’
of the parent or ‘parental
powers and duties’. The Law
Commission in Guardianship
and Custody (No172 in 1988) commented
that such terms were misleading and did not
promote the notion that parenting was more
a matter of responsibility than rights. They
preferred the term ‘Parental Responsibility’
and recommended its adoption into English
law. This also recognised the Recommendation
on Parental Responsibilities adopted in 1984
by the Committee of Ministers of the Council
of Europe in R(84) 4:
‘the modern concept according to which
parents are, on a basis of equality between
parents and in consultation with their
children, given the task to educate, legally
represent, maintain etc their children. In
order to do so they exercise powers to carry
out duties in the interest of the child and not
because of an authority which is conferred
on them in their own interests’
Thus was ‘born’ (though not conceived)
section 3 (1):
‘In this Act ‘parental responsibility’ means
all the rights, duties, powers, responsibilities
and authority which by law a parent of a
child has in the relation to the child and his
property.’
What is this thing called Parental
Responsibility?
Inadequate definition of the term ‘Parental
Responsibility ’, the meaning of which now
changes on a case by case basis depending
on a number of factors including the age and
maturity of the child, and the lack of a list
of what these ‘rights’ actually encompass,
creates problems. Although in reality
the terminology change from ‘rights’ to
‘responsibilities’ this changes very little in
substantive law but represents a symbolic
shift in the mindset of what parenthood
might be composed. Lord Mackay LC in
introducing the Bill (502 HL Official Report
(5th Series) col 490.) said -
‘[Parental Responsibility]… emphasises that
the days when a child should be regarded as
a possession of his parents, indeed when in
the past they had a right to his services and
to sue on their loss, are now buried forever.
The overwhelming purpose of parenthood is
the responsibility for caring and raising the
child to be a properly developed adult both
physically and morally.’
Parental responsibility provides parents
with the required duties and rights to bring
children up, and, subject to state interest and
law, parents have the freedom to do what
they will in accordance with the welfare
principle. Despite a lack of definition, in
practice the courts have deliberated over
many different issues that are concerned
with a child’s upbringing and that list is by
no means exhaustive.
Who are the chosen few?
A child may only have two parents but more
people may have parental responsibility for
that child; in modern families perhaps the
only person ‘guaranteed’ to automatically
acquire parental responsibility is the mother
when she gives birth. Others may also acquire
parental responsibility and includes a father
in accordance with section 2 of the Children
Act 1989 and section 111 of the Adoption
and Children Act 2002, non-parents such
as those appointed as guardians or granted
a residence order, step-parents or local
authorities when a care order is granted in
accordance with section 31 of the Children
Act 1989.
……… and what do they have to do?
All holders of parental responsibility to
consult and agree if the best interests of
the child are to be served, but this can
undermine the decision making abilities of
a parent and in reality there is no hierarchy.
could consent to treatment but it did not Whilst parental responsibility cannot be parental responsibility if it considers the
decide that a competent child could veto abandoned it can be delegated to others holders unsuitable to make decisions in the
On a daily basis the parent with whom a
treatment. It was his view that all those and in some cases ‘extinguished’. The best interest of the child or to hold the child’s
child resides can make decisions without the
with parental responsibility (and the court!) status of special guardianship was created welfare as paramount. It has been argued by
need to consult or seek agreement from other
reserved the right to consent to treatment by the Adoption and Children Act 2002 academic writers (eg John Eekelaar, ‘Parental
interested parties, in accordance with s2(7)
even of a Gillick-competent child. A child’s which amended the Children Act 1989 by responsibility: State of Nature or Nature
of the Act. To do otherwise is complicated
power of veto was further scrutinised in Re the insertion of ss14A-G governing special of the State?’ [1991] JSWFL 37) that the
and litigious, but it curtails the parental
W (A Minor) (Medical Treatment: Court’s guardianship orders. This gives the special concept of parental responsibility represents
decision making authority.
Jurisdiction [1993] 1FLR 1). The limiting guardian parental responsibility for a child two ideas; the first being that parents must
effect of the first case in applying Gillick while at the same time the child’s parents behave dutifully towards their children and
The trauma of medical decision-
was confirmed when a 16 year old refused retain their parental responsibility (although the second that the responsibility for raising
making
treatment without which she would die. The greatly curtailed). A private law remedy children lies with the parents not the state.
differing factor here was that at that age the has been created to give a more permanent The second idea in particular upholds the
This is an area of child law where both the
girl had a statutory right in accordance with status for non-parents where adoption is notion of non-intervention and that raising
child him or herself and/or the state can
the Family Law Reform Act 1969 section 8 not an appropriate option. The Explanatory children is a ‘private affair’, yet the state
intervene and halt decision making capacities
to give valid consent. The question before Notes to the 2002 Act say that a special and the child can intervene in the process
of those with parental responsibility. A
the court was whether the statute or Gillick guardian once ordered by a court will, for of decision making. When a child acquires
Gillick-competent child with sufficient
give the child a power of veto. The court held the duration of the order, take responsibility sufficient capacity and maturity it is possible
maturity and understanding has the ability
unanimously that neither the precedent not on a day-to-day basis for the child and have that the child can make decisions that affect
to make decisions for him or herself. This
the statute gave such a power. A parent only the ability and authority to make decisions his own well being; as a child grows older
parental authority where it is exercised only
loses exclusive rights to consent on a child affecting the child’s upbringing without he acquires more rights and responsibilities
lasts as long as the child needs protection
becoming Gillick-competent and a court will the need, save in very few circumstances and assumes more control over his decisions
or assistance in making a decision. It does
consider a child’s wishes but may dismiss (eg adoption), to consult with others with yet is still afforded the protection of an adult
not give a child ‘carte-blanche’ to effectively
them in the best interest of the child. Re parental responsibility. Such an order has holding parental responsibility for him. It
‘divorce’ their parents on the basis of being
W (A Minor) (Medical Treatment: Court’s an impact on the decision making abilities can be perhaps envisaged as a set of balance
Gillick-competent. The case did lean towards
Jurisdiction) [1992] FCR 785 went on to state of those with parental responsibility and is scales that as the child matures his rights
the empowerment of children but did not go so
that where a doctor wishes to treat a child another example of how the state can take increase and the parents’ decrease until they
far as to give complete child autonomy rights.
then he needs a ‘flak jacket’ of consent (see steps to inhibit the rights of those holders diminish. With this image it can perhaps
A number of factors in determining Gillick-
John Eekelaar ‘White Coats and Flak Jackets who are not deemed suitable to make then be understood why the courts have
competency may be relevant. This includes
– Doctors, Children and the Courts Again’ decisions in the best interest of the child. interpreted Gillick so restrictively; a child
the child’s understanding of the moral and
(1993) 109 LQR 182) and this consent could The Children Act 1989 encourages a sharing may be competent prima facie to make a
family issues involved, as Scarman pointed
be given by either the parent or the Gillick- of parental responsibility so a local authority decision affecting his own well being but he
out in Gillick v West Norfolk and Wisbech
competent child. Doctors are sufficiently (unlike a special guardian) is required to may not have the capacity to understand its
Area Health Authority [1986] AC 112 at 189.
covered by the ‘flak jacket’ to avoid liability consult and agree with others holding affect on others at that moment or indeed
The question of life experience may also
in either criminal or tortious proceedings. In parental responsibility. In order to safeguard how such a decision would affect his future
be relevant in determining competency. For
Re M (Medical Treatment: Consent [1999] 2 the welfare of the child however the Act does status or even if he would feel the same
example, a child who has been raised in a
FLR 1097) the refusal of a fifteen year old permit the local authority to determine the way in the future, so to tip the balance early
strongly religious home with little interaction
to a heart transplant was overridden by her extent to which a parent or others holding would be of detriment to the child’s welfare.
with other viewpoints is likely to be viewed
mother consenting to the treatment; the Court parental responsibility can exercise their The state does recognise the private domain
as living a relatively sheltered life and so not
of Appeal authorised the treatment without parental responsibility rights and duties in of the family and is reluctant to involve
judged to be competent. (See Re L (Medical
the need to consider Gillick-competency as section 33 yet a local authority cannot make itself but holds the authority to intervene
Treatment: Gillick Competency) [1998] 2 FLR
the ‘flak jacket’ had been provided by the decisions to change a child’s religion, agree in the name of protecting the welfare of the
810.)
mother in the best interests of her daughter to an adoption or appoint a guardian. This child. In all the parents holding parental
One type of situation where the state becomes
and the girl’s views were therefore considered mirrors the same extent of decision making responsibility do retain rights albeit limited
concerned involves cases of medical consent
(legally) irrelevant. a sole carer with parental responsibility can in some circumstances, and in this it can be
where there is conflict between the child’s
The state can override the wishes of those also undertake without the need to consult seen that the child, and moreover the state,
wishes, the parents’ wishes and possibly
with parental responsibility where they refuse other holders. There are clearly issues that can limit the decision making abilities of
the medical profession’s wishes, particularly
to consent to a child’s medical treatment. are too important to ignore parental wishes those holding parental responsibility.
in cases where a child refuses treatment. It
 14 the barrister
Fit for Purpose? The Review of Low Template DNA
By Professor Allan Jamieson and Dr Rhonda Wheate, The Forensic Institute
T
he use of Low Copy Number
(LCN) DNA in forensic science,
and the criminal justice sys-
tem, has been affected in the
wake of Justice Weir’s ruling
in the trial of Mr Sean Hoey
(The Omagh Bombing Trial)1 ; “I am not sat-
isfied that the publishing of two journal ar-
ticles describing a process invented by the
authors can be regarded, without more, as
having "validated" that process for the pur-
pose of its being confidently used for eviden-
tial purposes.”
So began a sequence of events that leaves the
UK as one of the only adversarial justice sys-
tems in the world to routinely use LCN DNA
as evidence. Professor Brian Caddy recently
released his much anticipated review of “Low
template” DNA profiling2, a technique pio-
neered by the Forensic Science Service Ltd®
and used in thousands of prosecutions across
Great Britain. The Review was commissioned
and has now apparently been endorsed by
the new Forensic Regulator in response to
the intense criticism leveled at the technique
and its purveyors, and voiced by Weir J in
the Omagh Bombing Trial. His Honour found
that there were “very many unsatisfactory
matters” to do with the DNA evidence and
LTDNA in particular. This article reviews the
problems with LTDNA and explores how they
have now been compounded by the Review,
which in our opinion failed in its remit to the
Forensic Regulator and has provided an un-
sound basis for the continued use of LTDNA
profiles in criminal prosecutions.
The LTDNA technique, at least so far as the UK
and the Review are concerned, encompasses
two different approaches to the recovery and
analysis of extremely low amounts of DNA.
The technique called LCN was developed
and is currently sold by the Forensic Science
Service Ltd®. Another technique, using a dif-
ferent principle, was developed by LGC Fo-
rensics Ltd. The standard DNA profiling kit
used in the UK (SGM+) is designed and vali-
dated to work using a specific amount of DNA
(nanogram amounts, or 0.000000001g). Low
Template DNA profiling pushes the amount
of DNA used as a starting point to 1,000
times below that limit (picogram amounts, or
0.000000000001).
Three problems emerge from this extreme
sensitivity. First, it is frequently impossible to
know how such a small amount of DNA came
to be in the place where it was discovered
and second, it is difficult to achieve repro-
ducible results, and even then, to know what
the results mean in terms of the contributing
profile(s).
Transfer and Contamination
The first problem arises because each of us
has about 1014 cells in our body, each with
a full DNA profile packed inside them. Eve-
rywhere you go you leave your DNA, and
your DNA goes places you have never been.
DNA can be transferred from you to some-
one else, and from that someone to someone
or somewhere else that you may have never
been. This process is called transfer. It is yet
to be established how extensive transfer can
be and what factors and influence it and to
what extent. The LTDNA technique is there-
fore very susceptible to identifying DNA that
is not truly related to the crime under inves-
tigation.
Furthermore, if crime scene samples are not
handled using extremely thorough precau-
tions, the risk of contaminating a sample with
DNA from other crime scene samples, from
police, from forensic scientists or from any-
one who may have had (perfectly innocent)
contact with the scene or sample is extremely
high. The defence must now carefully exam-
ine the continuity of such evidence (and in-
deed this was a focal point of the outcome in
the Omagh Bombing Trial).
Reproducibility
No agreement exists, even among the few
providers of the service, about how the re-
sults of LTDNA profiling should be interpret-
ed. In effect, the DNA profiles reported for
LTDNA cases are likely to depend on which
laboratory the material is sent to, which is
clearly not the hallmark of a “robust” scien-
tific technique3.
There is no doubt that current technology is
capable of amplifying very small amounts of
DNA, and certainly other laboratories have
developed methods to do so. The question
is whether we allow our enthusiasm for
ground-breaking science to overcome the
fundamental principles of good science – that
a technique should be validated, reliable and
reproducible. The Sally Clark case, the Bir-
mingham Six and the Guildford Four are just
a few of the cases which provide a stark re-
minder of the weight which scientific evidence
and experts can carry in criminal trials.
the barrister 15
The Review
The Caddy review was released in April 2008.
Despite the limited time frame and the fact
that the review panel chose to consult only
with the FSS Ltd® and the police, it conclud-
ed that the FSS Ltd’s® LTDNA technique was
“robust” and “fit for purpose”, although that
purpose was never defined.
Worryingly, the contents of the Review read
like a directory of the problems with, and
shortcomings of, the LTDNA technique. Of
even more concern is the fact that the con-
clusions of the Review appear to ignore the
contents in order to provide a completely un-
justified clean bill of health to the technique.
If this Review is to represent the scope and
the depth of the work of the new office of the
Forensic Regulator then we should not be
optimistic for the future of the quality, and
in particular the reliability, of science appar-
ently approved by the Crown for use in Brit-
ish courts.
The Review team did not consult anyone
who had expressed contrary opinion on the
merits of the FSS Ltd’s® LTDNA technique;
in fact, the panel admitted to speaking with
only the organisations selling the technique
and to the police as ‘customers’. This is de-
spite the Home Office’s own stated view that
where commercial products are being “sold”
to the police, “the police and others are not
well placed to evaluate the quality of the serv-
ice provided across the range of scientific dis-
ciplines…there needs to be a mechanism to
identify poor providers or services and pro- Chambers People is a specialist company providing
tect the police and Criminal Justice System
(CJS) from them before procurement…and
• Staff Recruitment •
the police are not the only user of forensic
• Staff Training •
science and the quality standards must reflect
• Solutions •
the needs of other stakeholders in the CJS4.”
to Barristers’ Chambers throughout the country.
The degree of involvement between the FSS
Established in 2002, we have a large database of registered candidates, each personally interviewed by us,
Ltd® and the Review is not clear, however a
who are available for selection for clerking and non-clerking positions in chambers.
scientific report produced for a criminal ap-
peal case by the FSS Ltd® in March 2008
We also provide staff for Accounts and Fees Collection, and provide many chambers with advice on Staff salaries,
contained the statement: “Preliminary indi-
Staff Assessments, Business Plans and Marketing Strategies.
cations are that [the Review] makes no sig-
nificant criticisms of the LCN technique”.
Visit our website for details of services: www.chamberspeople.co.uk and a list or our
This means that the FSS Ltd® and its staff
previous client chambers in London and every major city in the UK.
had knowledge of the results of the Review at
least three weeks prior to its release. This de- Or telephone 020 7242 2401 for further information.
spite the fact that the Home Office specifically
called for the Regulator to be “independent Email us at staff@chamberspeople.co.uk
of any forensic science provider”,5 which
presumably was meant to include the pur- Chambers People Ltd, 30 Chancery Lane, London, WC2A 1LB
veyors of the techniques and theories being
scrutinised. We are a people to people business
 16 the barrister
Not only was the review conducted on the ba-
sis of an unsatisfactory consultation process,
but there has been no opportunity for the in-
ternational scientific community, nor anyone
other than the three members of the Review
panel, to assess the data claimed to support
the validation of the technique.
Many jurisdictions apply a series of tests to
all scientific evidence before it is allowed into
court:6 Has the science been tested? Has it
been published and peer reviewed? Is the
error rate of the technique measurable and
known? Is the theory or technique generally
accepted within the relevant scientific com-
munity? Although these tests are not directly
applied in the UK, this kind of scrutiny is used
by the law to try to identify when a scientific
technique or theory has not been properly
verified or validated.
Except for the Netherlands, LTDNA profil-
ing has not been purchased by any forensic
science service providers outside the United
Kingdom and is not used for evidentiary pur-
poses by laboratories in any of the jurisdic-
tions with equivalent legal systems to ours
(such as the USA, Canada, Australia). Claims
that the UK is simply leading the field are
scoffed at by scientists internationally (and
by some in the UK). Scottish and Irish state
laboratories have no plans to introduce the
LTDNA technique. The senior scientist at the
FBI warned of the problems years ago. To
suggest that the FBI and similar organisations
have neither the resources nor the exper-
tise to do what they already do, (as the LCN
technique requires no more than the routine
equipment), and that they have lagged behind
for the last ten years, is stretching credibility
to the limit.
Mixtures and Interpretation
Among several problems identified by critics,
and repeated by the Review, DNA in foren-
sic work frequently involves mixtures. Even
standard DNA profiling methods (using large
samples of DNA) present difficulties for scien-
tists trying to determine how many contribu-
tors there may be in a mixed DNA sample.
The problems are exacerbated in LTDNA pro-
filing when swabs are taken to detect samples
which aren’t even visible to the naked eye. If
further evidence was needed, the Regulator
kindly provides it;
“2.5.6. I agree there needs to be an agreed
approach to the interpretation of such
profiles. The intention will be to produce a
single proposal which addresses the issues of
stochastic effects and mixture interpretation.
This will include, but not be limited to, the
following:
• the process by which the analytical
results are interpreted to produce profiles;
• the manner in which profiles, and
in particular mixed profiles, are interpreted
to generate evidential weight;
• the manner in which issues around
transfer and persistence of DNA are ad-
dressed;
• the manner in which issues of ex-
trinsic or contaminant DNA are addressed;
• the way in which all of these factors
are considered in relation to the circumstanc-
es of the case;
• the reservations or limitations that
have to be considered and how these are to
be reported to the court in the light of the
case circumstances; and
• the scientific and statistical basis
for the approach adopted.”
Only the devotee could, as stated by the
FSS representative on Radio 4’s Today pro-
gramme, consider this a ‘ringing endorse-
ment’ of the method.
Despite this, the Review mentions mixtures
only three times in 35 pages, and airily rec-
ommends “more work” be done on the inter-
pretation of mixtures. In these circumstanc-
es, surely LTDNA profiling is far from being a
“robust” technique that is fit for the purpose
of identifying and prosecuting alleged offend-
ers.
Conclusions
The Review lacks sufficient authority to allow
any weight to be attached to its findings un-
til all of the defects identified by the Review
and other scientists have been rectified, and
the clear disagreements among providers
and scientists nationally and internationally
have been resolved. The Report can not be
accorded any scientific significance until the
data upon which the opinions are based are
made available to all, and have met general
scientific approval.
Even by the most generous interpretation,
there is clearly no general agreement in the
scientific community about the reliability of
LTDNA analyses as performed by the FSS
Ltd®. The most basic legal tenets regarding
the acceptability of forensic science evidence
in court, such as peer review, measurable er-
rors and acceptance by the scientific commu-
nity, have not been met in relation to LTDNA.
The puzzling endorsement of LTDNA by the
Review may now mean that the UK will see
evidence presented that would not meet the
standard of other comparable technologically
and legally advanced systems.
The description of the LTDNA technique sold
by the FSS Ltd® as “robust” or “fit for pur-
pose” is a denial of the serious scientific ques-
tions which remain about the reliability and
validity of the technique. Taking the review
as the ‘final word’ on the technique is an er-
ror with potentially serious consequences for
the reputation of British science and for the
Criminal Justice System.
The Home Office and CPS appear to have
adopted an attitude of judging LTDNA (LCN)
on a case by case basis. To paraphrase, “It’s
evidence, Jim, but not as we know it.”
Professor Allan Jamieson
Dr Rhonda Wheate
The Forensic Institute
www.theforensicinstitute.com
1 R v Hoey [2007] NICC 49 (20 December
2007).
2 The technique is also commonly called
“Low Copy Number” (LCN) DNA profiling.
The terms are used interchangeably in this
document.
3 The National Measurement System Chemi-
cal and Biological Metrology Website, part
of the Department of Universities, Innova-
tion, and Skills http://www.nmschembio.org.
uk/GenericArticle.aspx?m=108&amid=586
states: “Analytical measurements made in
one location should be consistent with those
elsewhere. Why Is It Important? Disagree-
ments between companies or other organi-
sations over analytical measurements waste
time and cost money. If a supplier and pur-
chaser reach different conclusions about a
product or a service in which they are trad-
ing, both will have to bear costs in resolving
their differences. The laboratories used may
lose business or face legal costs if the dis-
pute escalates. Regulations cannot be fairly
enforced if the relevant analytical data show
inconsistencies.”
4 Home Office Consultation Document “Stand-
ard setting and quality regulation in forensic
science” 31 August 2006 at para 12.
5 Home Office Consultation Document
“Standard setting and quality regulation in
forensic science” 31 August 2006 at para
23: “The core proposal is that the Regulator
would be independent of any forensic science
provider”.
6 For example, see Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993).
the barrister 17
When Rod Morgan resigned as Chair of the
Youth Justice Board in January 2007 he made a
number of striking comments about the failure of
the Board and the Government to turn around the
looming crisis in the youth justice system.
By Sally Burnell, Nacro
S
etting out some of the reasons Since 2002 the issue has been raised by many ascertain the extent to which changes in
behind his decision to resign professionals citing both anecdotal evidence police practice to meet targets are responsible
in an article a month later, and criminal statistics showing an increase for the inflation in the figures for detected
Prof Morgan made reference to in the use of disposals usually reserved for youth offending.
the “low-hanging fruit” being minor offences – cautions, penalty notices
picked by the police to meet for disorder (PNDs) and official warnings for However, it found that it is possible to
Government-imposed targets, “the lowest of cannabis possession. hypothesise about the trends in youth crime
which comprises juvenile group behaviour in that might be expected if it were the case that
schools, residential homes and public spaces, In its report into police funding in July 2007, targets were perversely impacting on youth
offences that could be dealt with informally, the Home Affairs Select Committee found that crime trends.
more effectively, speedily and cheaply, and in the OBTJ figures in the 12 months to March
former times were”. 2006 included a high number of cautions and Nacro identified three areas – types of
PNDs: 38% were petty offences and only 53% offences and populations of offenders – that
This phrase resonated across the youth justice resulted in conviction. would likely see disproportionate rises in this
field. Morgan had summed up the concerns
of practitioners and academics alike: children The Committee
and young people were being criminalised concluded that the
simply to make up the numbers. OBTJ target “is not
a good indicator of
Background success in relation
to the types of crime
In 2002 the Government set the Home Office which the public scenario:
a PSA (public service agreement) target to fear most” and offences
“increase the number of crimes for which an recommended that committed
offender is brought to justice to 1.2 million summary offences by younger
by 2007-08” (from a baseline of 1,002,204 in be excluded from the people; less serious
March 2002). target. offending; and
offences committed by
Each of the 42 Local Criminal Justice Boards By April this year girls.
reports its performance against PSA targets figures became
to the National Criminal Justice Board. The available to allow In each of these areas the
latest quarterly statistics reveal the target had us to take a much young person might otherwise
already been well exceeded before the March more detailed look have received an informal response
2008 deadline. In the twelve months to at the impact of the and a disproportionate rise in these
December 2007 there were 1.449m offences PSA target on the types of offences and offenders would
brought to justice (OBTJ) – an increase of numbers of children suggest that they were being targeted by
45% on the baseline of March 2002. and young people in the police.
the criminal justice
Nacro, along with many other experts in the system. In all cases a comparison was made between
criminal justice field, has long held the view 2006 (the most recent figures) and 2003 (the
that the implementation of the OBTJ PSA has Nacro’s report Some first full year that the PSA target took effect).
resulted in increasing numbers of children facts about children a n d The results are compelling, revealing a sharp
and young people entering the criminal young people who offend departure from statistical trends prior to the
justice system, particularly younger children – 2006, published in April, introduction of the targets.
and girls. acknowledged that it is difficult to
 18 the barrister
Offences committed by younger
children
There is much debate about the age of
criminal responsibility with many voices in
the field arguing for a raising of the age in
line with other European countries. Although
the age of responsibility currently stands
at ten, we might reasonably expect that
children at the lower end of the scale (those
aged 10 to 14) would be dealt with more
informally by the police.
Before the introduction of the OBTJ target
this was probably the case, but since 2003
there has been a disproportionate increase
in the number of younger children receiving
a formal sanction, which is consistent with
our hypothesis.
Analysis shows that there has been a
significant, age-related shift in the three years
since detected youth crime started to rise in
2003. While the number of young people
aged 15 to 17 who received a reprimand,
final warning, or conviction for an indictable
offence grew by 15.8% between 2003 and
2006, the equivalent increase for younger
children, aged 10 to 14 years, was 25.6%.
Seriousness of offence
As each recorded offence type covers a range
of behaviours, it is difficult to determine the
relative seriousness of offences committed
over a period of time. However, we are able
to use the legal distinction between summary
and indictable offences to make a judgement
about the gravity of the crimes committed.
If, as the hypothesis suggests, police targets
meant that less serious offences were being
dealt with formally to meet those targets we
could expect to see a disproportionate rise in
detected summary offences (ie less serious
offences) compared to indictable offences (ie
the most serious offences).
Again the statistics support the hypothesis:
between 2003 and 2006 detected summary
offences committed by young people rose
considerably faster than indictable offences –
38.9% against 19%.
In reality this might mean incidents such as a
child breaking a neighbour’s window with a
football being charged with criminal damage
rather than simply being asked to pay (or
more likely their parents being asked to pay)
for the repairs. It is a sledgehammer used
to crack a nut and sadly it can have a long
lasting and potentially devastating effect on
the child’s future.
Offences committed by girls
Girls are consistently less likely than their
male counterparts to come into contact with
the youth justice system, and as with younger
children we would expect them to be more
likely to be dealt with through informal
warnings and measures.
Between 2003 and 2006 girls’ detected
offending rose significantly faster than boys’
– a 31.7% increase compared to just 16%
– indicating a far more formal response to
girls’ misbehaviour in order to fulfil the PSA.
Other factors
Very little work has been done to consider
the impact of Safer Schools Partnerships
(SSPs), where police are based in schools, on
the number of children and young people in
the criminal justice system. Also launched in
2002 covering areas targeted by the Street
Crime Initiative, the scheme has now grown
to over 500 SSPs across the country. The
Government hails them as a huge success
and is encouraging all schools to get involved
in a partnership with their local police.
Existing analysis of the partnerships
understandably focuses on their impact
on truancy rates and crime and antisocial
behaviour in and around the school. More
work needs to be done to ensure that police
presence enhances the ability of schools to
deal with low level problematic behaviour
informally through mediation and other
restorative measures, and that it does not
become yet another way for children to be
dealt with more formally behaviour that
would previously have warranted an informal
in-school response.
Rather than being given search wands
and knife arches, teachers would perhaps
benefit more from better training in dealing
with misbehaviour and a belief that they
are supported in dealing with it themselves,
without recourse to the youth justice system.
Conclusion
Last year the YJB publicly acknowledged
that police targets are adversely affecting
their ability to reduce youth custody. The
Towards a Youth Crime Prevention Strategy
consultation paper said: “Although not
mutually exclusive, there is some tension
between the target for justice agencies to
increase the number of offences brought to
justice and our corporate target of reducing
the number of first-time entrants to the youth
justice system.”
This year the YJB had to admit that it not
only missed that corporate target to reduce
by 10 per cent the number of young people
in custody between 2005 and 2008, but it
has actually presided over a 10% rise in that
period as custody figures reached 2,942 in
March 2008.
The Board also acknowledges that it expects
the total number of children and young
people incarcerated will be even higher by
the summer.
In the consultation paper the YJB suggests
that the OBTJ target be refocused on
more serious offices; something which the
Association of Chief Police Officers has also
supported (and the Home Affairs Select
Committee, as outlined above). There are
also plans to increase the use of restorative
interventions and consider how they may be
counted against police performance targets.
Both of these proposals offer some small
hope to struggling youth justice practitioners
that their concerns are finally being listened
to. But as everyone involved in the criminal
justice field is painfully aware, the proof is
very much in the pudding and it will take
far more radical thinking to begin to turn
around the pervading culture of punishment
in this country.
Morgan’s article went on to reveal that in
recent years the YJB has had “no option but
to spend seven times as much on custody
as on early prevention schemes, the cost
benefits of which are proven”.
At some point surely the combination of such
compelling financial and moral arguments
for reducing custody must win out.
Is the Rule of Law dead in modern society?
By Jemma Queenborough, first year Law (LLB) student and aspiring barrister, Cardiff University
T
he Rule of Law is an ever-
debated idea, a notion,
depicting a symbolic ideal1
or institutional morality
inherent in any constitutional
democracy, seen to be of great
significance in the promotion of fair decisions
and preventing abuse of power2.
The Rule can be traced back as far
as Aristotle and theories of Natural Justice and
Divine Law; but even today interpretations
are still attempted as to its exact meaning.
As the development of the Rule owes chiefly
to historical progression; it is necessary to
start with Dicey’s 18853 interpretation due
to the immense authority he still exercises
over the perception of our constitutional
arrangements4 . Dicey’s theory consisted of
several detailed statements describing the
English Constitution, however he highlighted
three distinct elements regarding the
Rule – remarked by others as echoing the
common law principle that the executive
cannot lawfully assume powers which are
not known to the courts5, with some deriving
from preceding theorists.
Dicey’s theorem can be seen to be,
firstly, an absence of arbitrary power on the
part of the state – individuals ought not be
subject to the power of officials wielding wide
discretionary powers6 7; secondly, equality
before the law8; and, thirdly, the supremacy
of ordinary, or judicially made common, law9
– moreover the common law as guardian of
the individual10 11 12 .
Dicey’s authoritative interpretation must
however be given requisite analysis and
criticism in its application to society (past
and present), as he was after all writing at a
particular historical period with a particular
political perspective13.
Criticisms came from William Robson in
192814, echoed later by Professor Jennings
in 193315, which drew attention to a
contradiction to Dicey’s Rule in the ever-
increasing discretionary powers (statutory
and non-statutory) available to the Executive,
now and in Dicey’s time, which are necessary
to carry out their various functions 16 17.
Moreover with reference to
Dicey’s first principle, the term ‘arbitrary’
power has been questioned with regard to
Dicey’s perceived scope of ‘arbitrariness’
due to modern governments’ wide ranging
powers, some of which, arguably beneficially,
affect the rights of the individual18. What’s
more, if Dicey’s rule seeks to discount any
government department/public authority
of any discretionary authority; no modern
constitution can comply, as a body with
some discretionary powers is unavoidable19,
if not necessary, in a complex society such
as todays. This is especially true in that
modern legislation tends to be more open-
textured, granting wide-ranging discretionary
powers (for example to make subordinate
legislation20), resulting in reduced power
to the courts to control such activity –
albeit despite judicial review21. It has been
remarked however, in Jennings opinion,
that Dicey’s views were based around the
rights of the individual as opposed to powers
possessed by public authorities22.
Due to these intricacies, and Britain’s
unwritten constitution; the Rule of Law is
exceptionally important as against which the
conduct of the government can be measured,
albeit without forceful consequences.
There has also been copious criticism of
Dicey’s second principle (‘equality before the
law’) both in Dicey’s stated exemptions of
soldiers and clergymen – although Dicey
did not see any conflict with the Rule23;
and also the evident inadequacy of this rule
today. Dicey has clearly made exception
for those with additional legal obligations
but not those who have authorised legal
immunity, for example, policemen; children
under ten (doli incapax); foreign diplomats;
judges; and MPs24. Moreover, legislature
clearly distinguishes between certain
categories of people (such as landlords -
tenants, employer - employee, to name a
few), assigning differing powers to each due
to various social, economic or legal factors;
not only in our British constitution but in
other jurisdictions such as Canada, India and
Germany25. It could also be argued that with
reference to our modern social security law,
anti-discrimination laws, and the Terrorism
Act of 2000; certain races, ages, and genders
are given unique rights26 in today’s society.
In Dicey’s defence, it must be argued that
such a varied, multi-cultural society as today,
did not exist in Dicey’s time of writing, with
his main differing demographic employment,
or ‘social standing’.
With regard to Dicey’s third principle,
Dicey’s faith in the supremacy and power
of ‘ordinary’/common law cannot be seen
to apply, then or most noticeably now; as
another of Dicey’s theories, Parliamentary
Supremacy, openly conflicts with the supposed
supremacy due to Parliaments unmistakable
the barrister 19
ability to legislate in contradiction with
Common Law principles or decisions as the
State does not need express authority for its
actions provided they do not breach common
law or statute27.
“The willingness of the judiciary
to uphold the Rule”28 , upholding Dicey’s
second principle, is seen in their holding
that even the Executive is not above the
law29 30 as part of their duty to prevent their
abuse of power, even extending to the staying
a prosecution due to abuse of process 31.
Moreover this is most prevalent post 199832
due to the Courts ability to declare a statute
incompatible with the Human Rights Act33
thereby rendering the governments acts
subject to increased scrutiny, beyond that of
residual rights and liberties before the Act34.
English Courts are also prepared to apply
customary international human rights law35,
moreover, with reference to cases involving
perceived terrorist threats; the incorporation
of the ECHR36 into our law has provided
further status to the values underlying the
Rule37. In recent years, senior judges have
spoken extra-judicially on the Rule38, as for
example Lord Hope stated that the Rule
“is the ultimate controlling factor on which
our constitution is based39”. The Courts
however have not felt able, outside directly
applicable EU law, to disapply law on the
basis that it offends ‘the Rule’40 despite the
Constitutional Reform Act 2005 laying down
statutory recognition of the Rule of Law.
Despite arguments that many of Dicey’s
notions are fallible and may have delayed
the development in this country of a coherent
public law, his genius was to recognise that
our constitution contains unwritten implied
principles41 which are arguably never
outdated.
When Edward VII came to the throne in
1901, the constitutional function of a British
monarch had been firmly settled but by the
years immediately preceding the outbreak
of the First World War, there was growing
disregard for the established Rule of Law,
mainly attributed to the irresponsible conduct
of the majority in the Second Chamber42.
Furthermore following Dicey and considerable
societal change; many others offered
interpretations of the Rule, each
arguably reflecting the developing
diverse society. The Law Commission p.22
for example, in 1959, ruled the Rule
 20 21
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Criminal legal aid lawyers will be at risk of extinction if best value tendering (BVT) is introduced as law firms abandon training programmes Stuart Cartwright, a Legal Executive lawyer in the Crime and Regulation Department of Manchester law firm, JMW Solicitors is one of the
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to cut costs, says the Law Society. first Legal Executives in England & Wales to be trained as a defence Legal Executive Advocate, and is now preparing to make his first ap-
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pearance in court.
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Figures obtained under the Freedom of Information Act reveal that on average only one new duty solicitor for every four criminal legal aid law
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firms was recruited last year*, and the Law Society fears a worsening crisis in legal aid as practitioners available to those who cannot afford As a Legal Executive Advocate, Stuart will be able to offer a seamless service to clients taking their case right through to the magistrates court
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representation will become even fewer under BVT. and, in the case of appeal and bail applications, the Crown Court without the need to instruct a solicitor, something ILEX Fellows have not been
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able to do in the past.
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Legal Services Commission proposals to introduce BVT into criminal legal aid procurement will force law firms to cut overheads such as train-
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ing to be able to offer low tenders. In October 2007, Altior Training, based in Cardiff, became the first ILEX accredited organisation to deliver training courses and assessments to
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members enrolled under the revised ILEX Advocacy Qualification Scheme. Over 400 ILEX Fellows and Members have already expressed an inter-
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Andrew Holroyd, president of the Law Society, says: est in obtaining rights of audience and in the training to become advocates
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'We could see a situation where the tendering process is so competitive firms have no choice but to abandon what is one of the most important
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elements of legal aid practice – the training of the next generation.' "I am proud to have obtained rights of audience and to have qualified as an Advocate,” says Stuart. “This is the end of a very long road for myself
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'Even where training is maintained, there will be little in the pot to pay trainees. Numbers of new legal aid lawyers is already dangerously low and the Institute of Legal Executives and I would encourage anyone in a similar position to grasp the opportunity to take the Advocacy course. I
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and with the number of people being arrested and brought to justice rising, the need for these practitioners is high.' found the course extremely challenging but equally rewarding and hope to play my part in putting Legal Executive Advocates firmly on the map."
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Katherine Gibson, president of the Law Society Junior Lawyers Division, adds: 'Many young lawyers enter the profession because they want to Prior to enrolling onto a course, Fellows and Members have to apply to ILEX for a Certificate of Eligibility which requires them to show that they
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work in legal aid and help those who might not otherwise have access to justice. These plans will effectively wipe out opportunities to train and have the necessary level of legal knowledge and experience before they can undertake the six-day course.
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work in legal aid and will deter many from entering the profession.'
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“I am delighted that Stuart is one of the first Legal Executive Advocates to complete the training course and is now ready to hone his skills in
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'The knock on effect is that we will eventually see criminal legal aid solicitors become an extinct breed, leaving those in need of legal advice and court ” said ILEX President, Lesley Graham, who is also based in Manchester. ”And I am sure he will be the first of many.”
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representation without a voice.'
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“Extended Advocacy rights are something which ILEX has campaigned long and hard for. The expertise and knowledge of Legal Executives has
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The Law Society points out that it might not be just new recruits who suffer as a result of BVT. Those already practising face new threats. long been recognised and Rights of Audience is the first of many forthcoming important changes within the legal profession that affect ILEX
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Andrew Holroyd says: 'There is already a battle for talent in the legal profession. Legal aid practices will struggle to hold onto their staff and put members and will enable them to broaden their areas of practice and status.”
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in a competitive enough tender at the same time. It could easily be a choice between one or the other.'
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'There is a misconception that everyone in the legal profession is handsomely rewarded. Many of those firms working in legal aid are already
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stretched and cannot pay staff well. BVT could worsen the situation.'
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NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS2008, NEWS the LSC
NEWS will consult
NEWSon the terms
NEWS NEWSof a NEWS
new civilNEWS
contractNEWS
which is intended
NEWS to runNEWS
NEWS from April
NEWS
Conference:
NEWS NEWS NEWS Vintners'
NEWS NEWS Hall,NEWS London NEWS NEWS NEWS NEWS The BarNEWS
Standards NEWSBoardNEWS
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announced NEWS NEWS
appointment
2010 to 2013.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS
Cocktail & Dinner: 26th June 2008, NEWS NEWS NEWS NEWS NEWS NEWS
of NEWS
Mandie Lavin NEWS
as its NEWS
new NEWS
Director. 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 In a moveNEWS
NEWS that is likely
NEWS to impact
NEWSonNEWS family barristers,
NEWS NEWS the LSC will seek
NEWS NEWSto change
NEWS the anomaly
NEWS NEWSin familyNEWS
graduated NEWS fees which
NEWS means
NEWS that,NEWS
cur-
The Honourable
NEWS NEWS NEWS NEWS Society NEWS of NEWS
Gray'sNEWS Inn NEWS NEWS NEWS NEWS
Ms Lavin, NEWS
currently NEWS
Director NEWS
of Fitness NEWS and
to Practise NEWS LegalNEWS rently, barristers
NEWS NEWS NEWS receive different
NEWS NEWS payments for cases
NEWS NEWSthan solicitors.
NEWS NEWS The report said that
NEWS NEWSthere are plans
NEWS NEWSto review
NEWS the operation
NEWS NEWS of graduated
NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Affairs at the RoyalNEWS NEWS NEWS
Pharmaceutical SocietyNEWS
of Great NEWS
Britain,NEWS
will and fixedNEWS
NEWS fees. The LSC wants
NEWS NEWS to reduce
NEWS theNEWS
numberNEWS of exceptions
NEWSand to introduce
NEWS NEWS more graduated
NEWS NEWS fees; this would
NEWS NEWS cut down
NEWS on NEWS
the needNEWS
to
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS take up NEWS
the post NEWS NEWS NEWS NEWS NEWS NEWS
on 23 June. cost exceptional
NEWS NEWS cases.
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
10% DISCOUNT
NEWS NEWS NEWS FOR NEWSTHE NEWS BARRISTER
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Prior to joining RPSGB, Ms Lavin, a barrister, held senior roles at
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
While theNEWS
agreement withNEWS
the LawNEWS Society guarantees that best valueNEWS
tendering (BVT) NEWS
across all face-to-face civil legal aid contracts will not be-
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
READERS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
the Chartered Institute of Management Accountants and the UK
NEWS NEWS NEWS NEWS NEWS NEWS NEWS gin until NEWS
NEWS 2013, theNEWS
LSC is adamant
NEWS NEWS that it sees
NEWSBVT as the ‘best
NEWS way’ forward
NEWS NEWS for civil legal
NEWS NEWSaid services.
NEWS NEWSA trial inNEWS
two or three
NEWS geographical
NEWS NEWS areas
Central Council for Nursing, Midwifery and Health Visiting (the for face-to-face
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
predecessor organisation of the Nursing and Midwifery Council).
NEWS NEWSservices
NEWSwill NEWS take place
NEWS to inform
NEWSa NEWSconsultation
NEWSfor the
NEWSLSC’sNEWS
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NEWS roll-outNEWS
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NEWSaid. 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
Best Practice NEWS NEWS
& Principles NEWS
for Judges, NEWS
Lawyers, NEWS
Litigants & NEWS NEWS NEWS NEWS
Commenting NEWS
Ruth Evans,NEWS NEWS
BSB Chair, said:NEWS NEWS NEWS Civil legal
NEWS aid contracts:
NEWS NEWSthe next five
NEWS NEWSyears NEWS
is available
NEWS at: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
Technology, NEWS
Security, NEWS NEWS
Investigations NEWS
& Digital NEWS
Evidence NEWS NEWS NEWS
Specialists… NEWSthat
'I am delighted NEWS NEWS
Mandie will beNEWS
joining NEWS
the BSB.NEWS She ledNEWS http://www.legalservices.gov.uk/docs/civil_contracting/civil_route_map_100408.pdf
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 a strongNEWS
field of NEWS
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and will NEWS
bring to the roleNEWSa broadNEWS 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
background NEWS NEWS
in regulation NEWS
and a strong NEWS NEWS
management focus. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWSisNEWS
Digital evidence NEWSthe
set to become NEWS NEWS
dominant formNEWS NEWS
of evidence in NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Review
NEWS NEWSof Criminality
NEWS NEWS NEWS Information
NEWS NEWS (ROCI)NEWS NEWS NEWS Bar Council
NEWS NEWS Working
NEWS NEWS to Design NEWSNew NEWSVHCC NEWS
NEWS NEWS NEWS
legal proceedings. Judges,NEWS
lawyersNEWS NEWScounsel
and in-house NEWS andNEWS Mandie’s
expertsNEWS NEWS NEWSexperience
NEWS andNEWS
enthusiasmNEWS will be
NEWS critical in driving
NEWS NEWS NEWS NEWS NEWS
The independent Review of NEWS NEWS
Criminality NEWS NEWS
Information (ROCI) isNEWS 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
must rapidly recognise and respond to the changing environment. forward our challenging programme of work to deliver highNEWS NEWS
examining NEWS NEWS NEWS
how information aboutNEWScriminals NEWS NEWS NEWS
and criminality can NEWS NEWS Scheme NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS quality regulation
NEWS NEWS of the Bar
NEWS in theNEWS
public interest'
NEWS NEWS NEWS NEWS
be betterNEWS NEWS
recorded, usedNEWS
and shared NEWS in theNEWS NEWS
interests NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
of public
The Bar Council has been working hard to design a VHCC scheme
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Mandie NEWS
Lavin said: NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
protection. NEWS NEWS NEWS NEWS NEWS NEWS NEWS
which would come within budget, but would ensure proper remu-
NEWS NEWS
MIS Training NEWS
Institute NEWS NEWS
in partnership NEWSMason
with Stephen NEWS NEWS NEWS NEWS
is pleased NEWS
‘I am thrilled NEWS
about NEWS NEWS
my appointment NEWS
and look NEWS
forward NEWS
to building NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
neration for members of the Bar. Complex data has been analysed
NEWS NEWS
to invite you to theNEWS
dynamic NEWS NEWS
inaugural NEWS NEWS
International ConferenceNEWSon NEWS NEWS NEWS NEWS
on the excellent NEWS
work already NEWS NEWS
undertaken by the Bar NEWS NEWS
Standards NEWS
For theseNEWS NEWS
purposes, NEWS
criminality NEWS NEWS
information NEWS NEWS NEWS NEWS
is any information NEWS NEWS NEWS NEWS NEWS NEWS NEWS
for this process by Professor Martin Chalkley.
NEWS NEWS NEWS
Digital Evidence, NEWS
which will conveneNEWS NEWS
on 26th and 27thNEWS NEWS NEWS NEWS
June 2008 Board.’ NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
which is,NEWS
or may be NEWS
relevantNEWSto the NEWS
prevention,NEWS NEWS NEWS
investigation, and NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
Further details are provided in the Chairman's Letter dated 2 May
NEWS NEWSHall.
at The Vintners’ NEWS ThisNEWS NEWS
is the first NEWS
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prosecution NEWS NEWS
or penalising of crime.NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
2008.
NEWS NEWS
the subject in suchNEWS NEWS
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context, NEWS
and without theNEWS NEWS
traditional sole NEWS NEWS
HemantNEWS NEWS NEWS
Patel, President NEWS
of the Royal NEWS NEWS
Pharmaceutical NEWS
Society of NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
http://www.barcouncil.org.uk/assets/documents/DOC080502VH-
NEWS
focus on NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
e-disclosure. NEWS
Great Britain NEWS NEWS NEWS NEWS NEWS NEWS
said: NEWS NEWS NEWS
This independent NEWS
review, led by SirNEWS
Ian Magee,NEWS aimsNEWS
to makeNEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
CCS.pdf
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS 'I wouldNEWS NEWS
like to thank NEWS
Mandie NEWS
for her NEWS
hard work andNEWS NEWS
endeavours NEWS NEWS NEWS
recommendations which, NEWS
as well as NEWS NEWS
improving NEWS
the safety NEWS NEWS NEWS
of the NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
on behalf NEWSand
of the Society NEWS NEWS
the wider NEWSprofession.
pharmacy NEWS NEWS NEWS NEWS
public, will NEWS
increase NEWS NEWS
the efficiency NEWS
of the whole NEWS
public NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
protection
NEWS
For moreNEWS NEWS
information NEWS
email NEWS NEWS NEWS NEWS NEWS NEWS
cdoughty@mistieurope.com Mandie NEWS
has made NEWS NEWS
a significant NEWS NEWS
contribution NEWS NEWS
to the modernisation NEWS
system andNEWS NEWS
provide directNEWS
benefitsNEWSfor staff NEWS NEWS
on the front line. NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS
or call +44 NEWS
(0) 20 7779 NEWS NEWS NEWS NEWS NEWS NEWS NEWS
7215 NEWS fitness
of the Society's NEWStoNEWS practiseNEWS NEWS
procedures, work NEWS NEWS
which will lay 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
the platform for NEWS NEWS
the creation NEWS
of the NEWSPharmaceutical
new General NEWS NEWS NEWS NEWS NEWS
Further information NEWSonNEWS
is available the Home NEWS
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Police NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS Council.NEWS
On behalf NEWS
of the NEWS
Society'sNEWS
CouncilNEWSI would NEWS NEWS
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website. 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 Mandie NEWS
all the veryNEWS NEWS
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role.' NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS NEWS
http://www.police.homeoffice.gov.uk/operational-policing/review-
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
criminality-information/
 22 the barrister
of Law as a ‘dynamic concept which
p.19 should be used as a safeguard and to
advance the political and civil rights
of individuals within a free society’.
The most notable attempts however emanate
from more recent times, in the 1970s which,
whereas Dicey’s Rule operated in terms of
abstract rights and duties, formal equality
and formal justice; new attempts address
concrete issues and questions of substantive
equality and justice43.
FA von Hayak in 1971, echoed
Dicey’s perspective44 however exceeded
him in attempting to set out the form and
content that legal rules need comply with
to be compatible with the Rule, therefore
implying “limits on the scope of legislation”
to general laws, applying to all and benefiting
none in particular. Hayak heavily criticised
the present situation regarding efficiency,
individuals should be given leave to make
their own choices; and also morality, since
their freedom is inescapably restricted. It
has been remarked however that Hayak’s
views stem from that of the Rechtsstaat
due to his Austrian background, thereby
perhaps incorporating a more continental
viewpoint45.
The Marxist Historian prevalent
in 1975, EP Thompson, was – although
congruous in his belief that the Rule is an
“unqualified human good” (despite being
conversely left-wing) – particularly concerned
about State control in the legislative process
to undermine civil liberties in the pursuit of
its own concept of public interest therefore
further than demanding the law be of limited
scope, required a limiting of State power46.
Joseph Raz, in 197747, however, in
contrast to those before him recognised the
importance of government aswell as law, and
that the attainment of particular social goals
may require both general and particular
laws – differing starkly from Hayak. Raz did
however develop Hayak’s interpretation in
that he stressed the purpose of the Rule to
be ‘a guide to the individuals’ behaviour’,
albeit also criticising him for disguising a
political argument as a legal one. Despite
sharing preceding concerns surrounding
discretionary State power; some of the most
important principles to be derived from Raz’s
interpretation were that that law should be
prospective48/proactive, with the individual
able to adapt their behaviour to comply
with the law; the law should be flexible but
stable and clear49 to avoid confusion; the
independence of the judiciary be guaranteed
to avoid bias and undue influence; and also
the Aristotelian principles of Natural Justice
be observed50.
Unger’s interpretation, in 1976,
loosely followed on from Razs’ ideas of
autonomy, viz the freedom of the judiciary
from any external pressure, as is a prevalent
demand today; and also generality, law
applying equally to all – thereby echoing
the Dicey. He did however criticise the
development of the Rule as a product of
Western Capitalist society, thereby arguably
echoing the German sociologist Max
Weber51.
Weber’s interpretation can be
seen to strengthen Raz’s recognition of the
importance of the government, however
echoes Raz and Unger in his belief that
the State should ‘set goal posts’ leading to
judicial autonomy52.
According to Dicey, the Rule of Law was
one of the key features which distinguished
the British, or ‘English’ as he preferred53,
constitution from its continental counterparts;
a “democratic from a despotic constitution”54.
It can however been seen in modern
understanding that the Rule of Law is no
longer, as Dicey would say, ‘unique’ to the
English constitution but can be seen to have
been integrated into many other countries,
even establishing a role in the European
Union55 shown as the ECJ56 ruled that “the
Community constitutes a new legal order…”
(…for the benefit of which the States have
limited their sovereign rights”) which has
been compared to a “Community Rule of
Law” due its role in ensuring individuals
certain rights protecting against the arbitrary
use of power, not only national government,
but by the Community57.
Formally the strength of the Rule of Law
in Britain had emanated from its universal
acceptance and from the ardent desire of the
people to preserve it unblemished58 however
due to recent measures to combat the threat
of terrorism59, and seemingly increasing
State control; it could definitely be suggested
that we, as a society, are contradicting all
Dicey, and others’, carefully placed theories.
For example, in modern understanding there
have been many breaches of the arguably
indefinable Rule. In Britain, examples
include Northern Ireland in the 1990s with
the questionable operation of the Diplock
Courts; the effects of the abrogation of the
right of silence; allegations of ill-treatment by
detainees of the Royal Ulster Constabulary;
and the Casement Park trials60 61 .
It could be argued that due to
society’s ever changing moral and social
values, the Rule of Law will either become
obsolete, merely a historical notion; or
inevitably must continue to change as we
do. “It would however be utterly fallacious
to conclude that the Rule of Law in Britain
will be in any real or immediate danger so
long as the leaders of national life and the
ordinary men and women in the street retain
their ardent passion for democratic freedom,
and the infinite regard for constitutional
government which they have inherited from
their forbears”61.
1 Gary Slapper and David Kelly, ‘The English
Legal System’ (7th ed, Cavendish Publishing
Ltd, 2004) 15
2 Jeffrey Jowell, ‘The Rule of Law and
its underlying values’, in ‘The Changing
Constitution’ (6th ed, O.U.P., 2007)
3 ‘Introduction to the Study of the Law of the
Constitution’
4 Jeffrey Jowell, ‘The Rule of Law and
its underlying values’, in ‘The Changing
Constitution’ (6th ed, O.U.P., 2007)
5 Entick v Carrington (1765) 19 St Tr 1029,
in, Bradley & Ewing, ‘Constitutional and
Administrative Law’ (14th ed, Pearson
Education Ltd, 2007) 96
6 Dicey – “no one is punishable or can be
lawfully made to suffer in body or goods
except for a distinct breach of law established
by before the ordinary courts of the land”.
7 R v Inland Revenue Commissioners, ex
parte Rossminster Ltd (1980) AC 952 (CA)
in Allan & Thompson, ‘Cases & Materials
on Constitutional and Administrative Law’
(2005, O.U.P., Oxford)
8 Case of Wolfe Tone (1798) 2 St.Tr. 614; and
Stroud v Badbury (1952) 2 All ER 76 in R. F.
V. Heuston, M.A., ‘Essays in Constitutional
Law’ (1964, Stevens & Sons, London)
9 Dicey – Constitutional Law “is the result of
the judicial decisions determining the rights
if private persons in particular cases brought
before the courts”
10 Derbyshire CC v The Times Newspapers
Ltd (1993) A.C. 534
11 Art O’Brien (1923) AC 603 in R.F.V.
Heuston, M.A., ‘Essays in Constitutional Law’
(1964, Stevens & Sons, London)
12 Gary Slapper and David Kelly, ‘The English
Legal System’ (7th ed, Cavendish Publishing
Ltd, 2004) 15
13 Gary Slapper and David Kelly, ‘The English
Legal System’ (7th ed, Cavendish Publishing
Ltd, 2004) 15
14 In his book, ‘Justice and Administrative
Law’
15 ‘The Law and the Constitution’ in Neil
Parpworth, ‘Constitutional & Administrative
Law (4th ed, O.U.P., 2006)
16 Liversidge v Anderson (1942) AC 206 in
R.F.V. Heuston, M.A., ‘Essays in Constitutional
Law’ (1964, Stevens & Sons, London)
17 Neil Parpworth, ‘Constitutional &
Administrative Law (4th ed, O.U.P., 2006)
18 Bradley & Ewing, ‘Constitutional and
Administrative Law’ (14th ed, Pearson
Education Ltd, 2007) 98
19 Bradley & Ewing, ‘Constitutional and
Administrative Law’ (14th ed, Pearson
Education Ltd, 2007) 97
20 See Donoughmore Committee - Report of
the Committee on Ministers’ Powers (1932)
Cmd 4060
the barrister 23
21 Gary Slapper and David Kelly, ‘The English Present day’ (Barry Rose Publishers, 1978) Law’ (The Hamlyn Lectures, 29th series,
Legal System’ (7th ed, Cavendish Publishing 43 Gary Slapper and David Kelly, ‘The English London, Stevens & Sons, 1977)
Ltd, 2004) 20 Legal System’ (7th ed, Cavendish Publishing 58 Anthony Babington, ‘The Rule of Law in
22 Neil Parpworth, ‘Constitutional & Ltd,2004) 18 Britain from the Roman Occupation to the
Administrative Law (4th ed, O.U.P., 2006) 44 In that “government in all its actions Present day’ (Barry Rose Publishers, 1978)
23 Neil Parpworth, ‘Constitutional & is bound by rules fixed and announced 59 A & Others v Secretary of State for the
Administrative Law (4th ed, O.U.P., 2006) beforehand” ‘The Road to Serfdom’ in Home Department (2004) EWCA Civ 1123,
24 Neil Parpworth, ‘Constitutional & Gary Slapper and David Kelly, ‘The English (CA) ‘Cases & Materials on Constitutional and
Administrative Law (4th ed, O.U.P., 2006) Legal System’ (7th ed, Cavendish Publishing Administrative Law’ (2005, O.U.P., Oxford)
25 Bradley & Ewing, ‘Constitutional and Ltd,2004) 16 60 The Haldane Society of Socialist Lawyers,
Administrative Law’ (14th ed, Pearson 45 Gary Slapper and David Kelly, ‘The English ‘Upholding the Rule of Law – Northern
Education Ltd, 2007) 98 Legal System’ (7th ed, Cavendish Publishing Ireland: criminal justice under the “emergency
26 Bradley & Ewing, ‘Constitutional and Ltd,2004) 16 powers” in the 1990s’ (1992, London)
Administrative Law’ (14th ed, Pearson 46 Gary Slapper and David Kelly, ‘The English 61 See also, Inaugural lecture by Prof. M. J.
Education Ltd, 2007) Legal System’ (7th ed, Cavendish Publishing Goodman, M.A., PhD, ‘The Rule of Law in
27 Malone v Metropolitan Police Commissioner Ltd,2004) 18 Twentieth-Century Britain’ (1973, University
(No. 2) (1979) Ch.344 in Spencer and Spencer, 47 ‘The Rule of Law and its virtue’ (93 LQR of Durham)
‘Nutcases – Constitutional and Administrative 195) 62 Anthony Babington, ‘The Rule of Law in
Law’ (4th ed, Sweet and Maxwell, 2006, 48 Phillips v Eyre (1870) 6 QB 1, Exchequer Britain from the Roman Occupation to the
London) Chamber in Allan & Thompson, ‘Cases & Present day’ (Barry Rose Publishers, 1978)
28 Neil Parpworth, ‘Constitutional & Materials on Constitutional and Administrative
Administrative Law (4th ed, O.U.P., 2006) Law’ (2005, O.U.P., Oxford)
29 R v Secretary State for the Home 49 Merkur Island Shipping Corp v Laughton
Department ex parte Pierson (1998) AC 539 and Others (1983) 2 AC 570 (CA) in Allan
in Allan & Thompson, ‘Cases & Materials & Thompson, ‘Cases & Materials on
on Constitutional and Administrative Law’ Constitutional and Administrative Law’
(2005, O.U.P., Oxford) (2005, O.U.P., Oxford)
30 M v Home Office (1994) 1 A.C. 377 50 Gary Slapper and David Kelly, ‘The English
in Allan & Thompson, ‘Cases & Materials Legal System’ (7th ed, Cavendish Publishing
on Constitutional and Administrative Law’ Ltd,2004) 19
(2005, O.U.P., Oxford) 51 Gary Slapper and
31 R v Hourseferry Road Magistrates’Court David Kelly, ‘The
Ex p. Bennett (1994) A.C. 42 (HL) in Spencer English Legal System’
and Spencer, ‘Nutcases – Constitutional and (7th ed, Cavendish
Administrative Law’ (4th ed, Sweet and Publishing Ltd,2004)
Maxwell, 2006, London) 20
32 Human Rights Act 52 Gary Slapper and
33 s.4 Human Rights Act 1998 David Kelly, ‘The
34 Neil Parpworth, ‘Constitutional & English Legal System’
Administrative Law (4th ed, O.U.P., 2006) (7th ed, Cavendish
35 R v Bow Street Metropolitan Stipendiary Publishing Ltd,2004)
Magistrate Ex p. Pinochet Ugarte (No. 3) 20
in Spencer and Spencer, ‘Nutcases – 53 Jeffrey Jowell,
Constitutional and Administrative Law’ (4th ‘The Rule of Law and
ed, Sweet and Maxwell, 2006, London) its underlying values’-
36 European Convention of Human Rights ‘The Changing
37 Starrs v Ruxton (2000) SLT 42 in Constitution’ (6th
Allan & Thompson, ‘Cases & Materials on ed,O.U.P.,2007) 6
Constitutional and Administrative Law’ 54 Jeffrey Jowell,
(2005, O.U.P., Oxford) ‘The Rule of Law and
38 Lord Bingham, ‘The Rule of Law’, (Sir its underlying values’-
David Williams Lectures, Cambridge, ‘The Changing
December 2006); Sir John Laws, ‘The Rule of Constitution’ (6th
Law: Form and Substance’, (London School ed,O.U.P.,2007) 5
of Economics, November 2006) 55 Gary Slapper
39 Jackson v Her Majesty’s Attorney General and David Kelly,
(2005) UKHL 56 at 107 ‘The English Legal
40 Jeffrey Jowell, ‘The Rule of Law and System’ (7th ed,
its underlying values’-‘The Changing Cavendish Publishing
Constitution’ (6th ed,O.U.P.,2007) 17 Ltd, 2004) 15
41 Jeffrey Jowell, ‘The Rule of Law and 56 European Court o f
its underlying values’-‘The Changing Justice
Constitution’ (6th ed,O.U.P.,2007) 17 57 Lord Mackenzie
42 Anthony Babington, ‘The Rule of Law in Stuart, ‘The European
Britain from the Roman Occupation to the Communities and The Rule of
 24 the barrister
'No further action' on cohabitation: a missed
opportunity
By Jane Craig, on behalf of the Family Justice Council.
Jane Craig is Head of Family Law at Manches LLP and is a Private Law Solicitor Member of the
Family Justice Council.
T
he Government’s recent
long awaited response
to the Law Commission’s
July 2007 Report - projects examined outcomes for cohabitants
Cohabitation: The
Financial Consequences
Of Relationship Breakdown - was received
with considerable disappointment, and
even dismay, in many quarters. The Report
recommended the introduction of new
legislation to protect cohabiting couples
on relationship breakdown. After a wait
of nine months, the Minister for Justice,
Bridget Prentice, made a written ministerial
statement on 6th March 2008 in which she
praised the Commission’s “…thorough and
high quality report…” – but went on to say
that “…for the time being, the Government
will take no further action...”
The Minister said that the Government wants
to seek research findings on the cost and
efficiency of the Family Law (Scotland) Act
2006, which came into force in Scotland in
2007, before deciding whether to implement
the Law Commission’s recommendations.
This decision seems timid, however, given
the breadth of the work undertaken by the
Law Commission and the high level of public
support in England and Wales for reform of
the law in this area.
Anyone who has read the Law Commission’s
Report in its entirety (all 204 pages of it) will
know how much care and thought went into
its recommendations. A detailed Consultation
document was published the previous year
and there were responses from a very wide
range of individuals and organisations.
The Commission considered the legislative
provision for cohabitants in numerous other
jurisdictions, to see what could be learned
from the experiences of those in other
countries. It took account of the findings
of recent research projects. Two of these
following separation under the current law,
with or without the assistance of lawyers
and courts: R Tennant, J Taylor and J Lewis
Separating From Cohabitation: Making
Arrangements For Finances And Parenting
(2006) Department for Constitutional
Affairs Research Report 7/2006 and G
Douglas, J Pearce, H Woodwood, A Failure
Of Trust: Resolving Property Disputes On
Cohabitation Breakdown (2007). Another
study examined the impact of information
obtained by cohabitants who have visited
the Living Together Campaign website – A
Barlow, C Burgoyne, J Smithson, “The Living
Together Campaign – An investigation of
its impact on legally aware cohabitants”
Ministry of Justice Research Report (2007).
The Commission also took account of some of
the findings of the most recent British Social
Attitudes Survey, to which it had access prior
to publication of its Report.
The conclusion drawn from all of this detailed
work was unambiguous: there is a clear and
urgent need for reform of the law in this
area.
Findings from the British Social Attitudes
Survey published by The National Centre
for Social Research in January 2008 showed
that there is strong public support for legal
reform so that cohabiting couples in certain
circumstances are treated similarly to
married couples. Public support for treating
married and cohabiting couples increases as
the relationship lengthens, particularly when
children are involved: nine out of ten people
think that a cohabiting partner should have
a right to financial provision on separation if
the barrister 25
1996, applications under the Child Support security and feeds the myth of the “common the parties’ shared lives or to the welfare of
Acts and applications for capital provision law marriage”. members of their families. Such contributions
and periodical payments for children under
the Children Act 1989, but when these do not Injustice
are not limited to financial contributions and
include future contributions, in particular to
apply, the courts have to use the general law the care of the parties’ children following
of contract, property and trusts. The present law provides no proper separation. A retained benefit could take the
protection for cohabiting couples on form of capital, income or earning capacity
The result of this is that when cohabiting relationship breakdown and instead leaves that has been acquired, retained or enhanced
couples separate and seek legal redress people vulnerable to significant injustice. as a result of the cohabiting relationship. An
the relationship has been a long-term one,
they are faced with complex legislation, the economic disadvantage would be a present or
includes children and has involved prioritising
arcane remedies of implied, resulting and The famous case of Burns v Burns illustrates future loss, which could include a diminution
one partner’s career over another.
constructive trusts and proprietary estoppel, the problem. Mr & Mrs Burns (so called) lived in savings as a result of expenditure, or of
uncertain outcomes and potentially high costs together for 19 years and had two children earnings lost during the relationship, lost
that can exceed those of a fully contested together, but never married. They lived as a future earnings or the future cost of paid
divorce. family and pooled their resources, but when child care.
The rise in cohabitation
the relationship broke down Mrs Burns was
The “common law marriage” myth found by the court to be entitled to nothing. Why reform now?
The Office for National Statistics reported
Mrs Burns was not entitled to an interest
earlier this year that marriage rates are the
The myth of the “common law marriage” in their home because the court could not Failure to act on the Law Commission’s
lowest they have been for 110 years. Year
remains prevalent, despite the best efforts find evidence of a common intention of joint recommendations now will mean that the
on year more people are choosing to cohabit.
of the Government funded “Advice Now” ownership either by agreement or by virtue more vulnerable partner – very often a
According to the Government’s Green Paper
campaign. The British Society Attitudes of financial contributions to the purchase woman and mother of any children of the
“Parental Separation: Children’s Needs and
Survey found that 51% of the population price of the property or the mortgage. The relationship – is left to face injustice and
Parents Responsibilities” (2004), from 1991
still believe (wrongly), that there is such a court could not, therefore, construe a trust financial hardship on the breakdown of a
to 2001 the number of married couples with
thing as a “common law marriage” which in her favour. Because she was not married, cohabiting relationship. In some situations
dependent children fell by 13% while the
gives cohabitants the same rights as married the court did not have jurisdiction to consider she is left homeless, without any claims at
number of cohabiting couples with dependent
couples. Only four in ten people correctly what she might reasonably need or expect. all over the property where she may have
children rose by 102%.
know that this is untrue. This is almost lived for many years. If this happens, the tax
identical to the proportion of people who Recommendations payer has to fund welfare benefits and public
There are now over two million couples
thought this in 2000, despite the Advice Now housing to support those who should not be
cohabiting in the UK. Nearly three quarters
campaign and despite all the media attention When the Law Commission’s Report was left in this position. It is not clear how this
of a million of such couples have a dependent
that this issue has had. published last year, the press coverage fits in with the Government’s commitment to
child or children and there are one and
was to say the least, not entirely accurate. equality and protecting the disadvantaged.
a quarter million children dependent on a
Interestingly, cohabitants are no more or There were headlines in the tabloid press,
cohabiting couple. It is predicted that by
less knowledgeable than anyone else: 53% particularly, trumpeting the Government’s Of course, the Government has to take
the year 2031, one in four couples will
of cohabitants still believe that “common intention to introduce legislation giving account of the cost of introducing social
live together without marrying. The law
law marriage” exists, and 39% correctly say cohabitants identical rights to those of reform legislation. Concern about exposing
needs to be reformed so the vulnerable can
that this does not. Possibly because of their married couples. That is not what the Law the Legal Aid fund to further demands is
be protected, when the inevitable happens
ignorance of the fact that they do not have Commission has recommended. understandable. However, given the nature
some of these cohabiting relationships break
the same rights as married couples, very of these cases, there will be assets which
down.
few current cohabitants have taken steps to The Law Commission’s recommendations are the Legal Services Commission can use to
safeguard their position. Only around one in for a separate statutory scheme different to recover costs.
The current legal remedies for
six of those who own their accommodation the existing divorce legislation, which would
cohabitants
have a written agreement about their share enable one cohabitant or former cohabitant The world has changed dramatically in the
in the ownership, and only one in five have to claim relief following separation if he or last twenty years. Cohabitation is with us to
The court has no discretionary power to make
sought advice about their legal position. she has suffered an economic disadvantage stay and the law should now catch up with
orders when cohabitants separate, to deal
as a result of qualifying contributions made changing family structures and reflect the
specifically with the financial consequences
The way in which the Social Security system to the relationship, or if the other party has needs of society as it is.
of relationship breakdown. There are certain
and other official bodies refer to people being a retained benefit. A qualifying contribution
statutory remedies available in certain limited
married or “living together as husband and would be any contribution arising from the
circumstances, such as occupation orders and
wife”, perhaps gives people a false sense of cohabiting relationship which is made to
tenancy transfers under the Family Law Act
 26 the barrister
The Dangers of The Online World
Cases involving files encountered and
downloaded via websites are also frequent
areas of misunderstanding. The presence
of a web page or file on a hard drive can
Matthew Jackson Provides an Overview of the Complexities and be the result of intentional user access,
or alternatively, the operation of one of a
Importance of Experts in Cases Involving Digital Evidence.
increases the possibility of software or
anomalous mechanisms causing the creation
and movement of files. This brings with it
a corresponding increase in the amount of
resources and time required to examine the
greater number of processes and, clearly, the
the barrister 27
will be missed as a result of the restricted
budgets and timescales placed upon a
computer examiner. In this regard, the
dangers of computers and the online world,
for an increasing number of unsuspecting
individuals, could be great.

T
o most people, a computer could
not be described as Dangerous.
We use them on a daily basis
to type letters, perhaps browse
the Internet, play games or
store holiday photos. However,
for some, data contained on a computer or
mobile phone can provide enough evidence
to form the basis of legal proceedings against
them.
As computer forensic specialists, Fields
Associates is currently involved in criminal
and civil cases involving an array of
different subjects, including corporate data
theft and espionage, murder, drugs, fraud,
theft, employee misbehaviour, child access
applications and even probate. These are
not just legal cases either; for example, we
regularly we receive instructions relating to
marriage disputes that involve computers
and digital media.
Increased media attention over the past ten
years in cases such as those within Operation
Ore (relating to 7,000 individuals who
allegedly subscribed to websites displaying
sexual images of children) and more recently,
terrorism and ‘happy slapping’ incidents,
have provoked a greater public interest
in proceedings where digital evidence has
formed a crucial part of the case.
Not only is there now a greater general
awareness of the capabilities of digital
evidence and its potential within legal cases,
additionally, reports of websites containing
indecent images of children are also
continually rising each year (The Internet
Watch Foundation reports that the number
of websites confirmed as containing unlawful
material has increased by 62% over the
last three years. It would, therefore, appear
that the use of this type of evidence is set to
continue to rise.
Increasing resources are now being spent
on examining data of this type as part of
legal cases where previously it was thought
unnecessary. In the past it was commonplace
for a Police investigator to restrict an
investigation to simply identifying ‘evidence’.
Upon inspection of this investigation by an
independent party, as part of a more in-depth
review, it was frequent for the evidence as a
whole to have been misinterpreted and the
case against the Defendant was not as it first
appeared.
Over recent years, the majority of criminal
cases for which we received instructions
have attracted greater attention from the
Police. We now frequently encounter cases
involving supportive evidence (such as
user and/or Internet history) as well as the
basic evidence that is relied upon as part
of the Prosecution case. However, it seems
inevitable that an increase in the number
of cases limits what can be achieved within
a Police Force’s Hi-Tech Crime Unit. Even
today we identify the presence of new and
previously unconsidered relevant material
within approximately 80% of the cases in
which we are involved.
For the majority of the time, this is the
result of the initial question asked of a
Police Hi-Tech Crime Unit investigator, being
“What’s there?” The question “How did it
get there?” is normally asked only when
the Defence looks to respond to the initial
allegations. Consequently, that question is
normally answered until well after the case
has been initiated.
Identifying the basic origins of a file is
normally relatively straightforward. For
instance, the location of the file normally
provides the biggest clue; the activity
surrounding its creation is another indicator.
However, clearly, the presence of a file and
even the identification of its origins do not
confirm that the accused deliberately caused
its creation nor was aware of its presence.
To examine that point normally requires far
greater levels of investigation, including the
piecing together of items of data in order
to build a history of that given file and the
activity associated with it.
When dealing with cases involving indecent
images of children, for instance, there are
various methods for an image to have been
created on a computer hard drive, including,
but not limited to, websites accessed whilst
browsing the Internet, received e-mails and
peer-to-peer software, such as KaZaA. Within
each of these originating sources several
possible mechanisms can cause the creation
of a file without the deliberate and intentional
actions of the user.
One such example is a case in which I was
involved within the last 18 months. This
related to a 19-year old male who, like most
19-year olds, lived at home with his parents.
However, unusually, this young man faced
allegations of making and possessing 9 static
and 11 moving indecent images of children.
The images had been stored in two folders
within his ‘user’ profile on the family’s home
computer. After two years of investigation by
the Police, that included an examination of
the family computer by the Force’s Hi-Tech
Crime Unit and an externally sourced expert
computer consultant as well as a number
of interviews and Court appearances, the
accused still had not made any admissions
number of different scripts and software. amount of data to be examined in order to
These scripts can cause the user’s Internet identify such mechanisms.
of guilt and claimed that he was simply browser to be automatically forwarded to Matthew Jackson, Director, Senior Forensic
unaware of the presence of the images. web pages containing certain material or Additionally, the increased use in the Consultant and Expert Witness at Fields
cause certain files to be added to the hard court room, within both criminal and civil Associates.
The Prosecution relied upon the fact that drive without the user’s knowledge. proceedings, of digital evidence brings with 0845 301 5778
the unlawful images were contained within it a greater need for the presentation skills e-mai:l mjackson@fieldsassociates.co.uk
manually created folders of the Defendant’s As even legitimate websites contain scripts, required to provide simple explanations of
‘user’ profile and they also identified the the majority of computer users will have a subject that can not only be difficult to
presence of keyword searches for terms experienced (and may have found annoyance comprehend but also to convey accurately,
that were likely to result in the creation of in having to close them) ‘pop-up’ windows. clearly and without prejudice.
unlawful material. These are normally used to forward a user
to an advert that often will comprise of a Clearly, the prevalence of digital technology
I examined the case and noted that the service vaguely relating to the content of the will increase as it becomes even more
9 static images had arrived via a small page that was visited (e.g. the autotrader accessible, usable and capable. This will
number of web pages containing legitimate website regularly contains pop-up scripts to undoubtedly result in a continuous increase
adult pornography and had been created websites for car loans or car manufacturers). in the number of cases involving and relying
automatically by image downloading However, identifying the presence of these on digital evidence as well as increasing the
software. This software, I noted, had types of scripts and software is often difficult. pressure on Police Forces to examine and
searched for and downloaded any images Furthermore, once a suspect item has been collate evidence from a larger number of
present on any web page that it encountered. found, making the determination as to its items of digital media.
A number of further observations were made nature, ability and activity can be even more
as to the apparent lack of awareness of the complicated. My concern is that, as nearly happened
user regarding the presence of the images with the case of the 19-year old highlighted
following their creation. As digital media increases in capacity it earlier, potentially, the critical facts of such
allows users to store more data but also cases will go unnoticed and items of evidence
The 11 moving images had appeared to
have originated via the peer-to-peer software
named Limewire. The software had been
used to download a significant amount of
pornography, including these unlawful
moving images. Furthermore, a review of
the operation of the software confirmed
that dubious keyword searches had been
conducted and these specific images had
been downloaded to a folder that was located
within the ‘user’ profile of the accused.
It was only after a careful review of the
system activity that was contained on the
hard drive did it transpire that another
user of the computer had been frequently
accessing the folder containing the target
images and had been viewing its contents,
including the unlawful images. After 9
months of our involvement and nearly three
years of investigation, the case was eventually
dropped shortly before the set Trial date.
This case is not an exception. In approximately
20% of the cases in which we are involved we
have been responsible for identifying crucial
new evidence that has caused the case to be
withdrawn. Due to the level of examination
required to recognise such evidence, this
figure is unlikely to diminish. For the Police,
an examination of this detail is irrelevant
for the majority of cases. Having previously
worked within at a regional Hi-Tech Crime
Unit, I noted that while I was there, for
approximately 85% of the cases in which
evidence was identified, the Defendant would
plead prior to Trial. Only a small percentage
of cases involved a Trial and even fewer
were party to a review by an independent
examiner.
 28 the barrister
Forensic Investigations – How a Raid is Planned
and Executed
By Rob Trevelyan, computer forensic examiner at the security and intelligence
company Thamesbridge
A
s in most disciplines
that include an ele-
ment of the unknown
the planning stage of a
forensic investigation is
an important exercise.
To ensure a successful and well executed raid
it is necessary to understand as much as pos-
sible about the nature of the investigation.
Identify whether it is to take place during the
day in open view of other staff or out of hours
away from prying eyes or even with law en-
forcement when the element of surprise is
absolutely needed.
Information about the physical location to be
visited is essential to ascertain whether it is
possible to gain access with ease. Access to
the building or area where the computer sys-
tem of interest is located will nearly always
require some form of access control device
and potentially with assistance of an internal
staff member. Gaining the trust and requiring
the assistance of local IT or security staff will
need to be assessed if there is a possibility
of their involvement of any alleged wrongdo-
ing.
To have a thorough understanding of the type
and quantity of computer equipment to be
encountered is extremely important in the
planning stage. A list of questions or a check-
list helps to determine what the computer of
interest is likely to be. This checklist needs to
be comprehensive and if the forensic investi-
gation is to be conducted with assistance or
information from IT staff, it is possible to un-
derstand the exact system configuration. In
the event of a raid situation it is unlikely that
any detailed information about the quantity
or configuration of the computers systems to
be encountered will be available. In this event
the planning stage must take this into account
and the forensic examiner must be equipped
to deal with any system and media.
In general a computer forensic examiner
typically will encounter four types of com-
puter system; laptop, desktop, tower and
rack mounted. The examiner will be able to
identify which type of system is more likely
to be encountered in the environment he is
planning for. In addition to the computer sys-
tems likely to be encountered the examiner
will also need to plan for all computer medi-
um. These media devices are found in many
types, quantity and capacity but these are
often; CD/DVD, USB memory stick, memory
card, external hard drive although devices
such as an Ipod have been used to store data
and would therefore be subject to examina-
tion and imaging.
In general terms a typical home environ-
ment will contain laptop and/or desktop type
computers or mini-tower systems (desk side).
There are likely to be multiple laptops and
multiple desktops systems in many homes
but these are nearly always configured as
they left the computer store and offer no
issues to an examiner. These systems will
utilise operating systems such as Microsoft
Windows predominantly or Apple MAC and
occasionally Linux.
In a small to medium size business, along
with laptop and desktop systems, tower
computers and small rack mounted systems
are likely to be encountered. These again
offer no real issue to an examiner who will
be equipped to handle multiple systems of
varying sizes. Operating system likely to be
encountered would be Microsoft Windows,
some Linux and the occasional Apple MAC.
Design and creative companies use predomi-
nantly MAC.
In a large business, corporation or govern-
ment department laptop, desktop, tower and
rack mounted systems are used. These are
in large quantities and numerous makes and
models. Operating systems tend to be Micro-
soft Windows and Linux or other UNIX de-
rivatives. The planning around such a large
organisation is imperative as a rack of com-
puter systems can contain a huge number of
computers or a massive array of hard drives.
The most important thing to take into ac-
count with any computer forensic investiga-
tion is to keep within the ACPO (Association
of Chief Police Officers) guidelines for compu-
ter based electronic evidence which requires
all computer forensic examiners to produce
computer evidence that is no more and no
less than when it was first taken into the pos-
session of the forensic examiner i.e. the data
was acquired securely using an accredited
write protecting device.
When a forensic examiner takes an eviden-
tial image of a computer system’s hard drive
he does so using what is known as a Write
Blocker. This device allows data to pass from
the target hard drive to an evidence drive to
create an exact bit-for-bit copy of the original
but additionally protecting the target drive
from being written to and therefore preserv-
ing the evidential integrity of the original. If a
target hard drive of 80 Gb (Gigabytes) is im-
aged using a write blocker an evidence file of
80 Gb is created on the examiner’s evidence
drive. Some software will split this 80 Gb into
sequential chunks for portability where oth-
ers create one contiguous file. A forensic ex-
aminer will carry many evidence drives and
many Write Blocking devices to enable fast
and efficient copying of target hard drives.
These evidence drives are typically 750 Gb
so can hold the image of around 9-10 com-
puter systems. Utilising the latest high speed
write blocking imaging devices provide the
capability to securely copy data at speeds in
the region of 2-4 Gigabyte per minute, which
results in a typical hard drive of 80 Gb tak-
ing between 20 to 40 minutes to complete.
Technology is a large part of the forensic ex-
aminers role to keep up with the demand of
the ever increasing size of hard drives to be
imaged in a timely fashion. Imaging devices
work independently of operating system or
software installed on the target hard drive.
Once a target hard drive has been identified a
photograph is taken of its location and what
connections it has plugged into it. Details of
where it is located, who normally uses it, the
type of computer, model number and serial
number, colour and if it displays any distin-
guishing marks, i.e. broken case or sticky
label on the front. Once this has been done
the computer is disconnected from its cables,
keyboard, mouse and screen all of which are
duly noted. If the raid is with law enforce-
ment the computer is either placed within
an evidence bag, dependant on size, or a
tamper-proof evidence tag is attached and
the number of the bag or tag is entered in
the exhibit log by the exhibits officer before
being signed over to the forensic examiner.
Examination is regularly done away from the
scene of crime.
In the case of a non-law enforcement inves-
tigation or to reduce the impact of collateral
intrusion, the computer system case will be
opened and the hard drive photographed
in situ and its details noted. The hard drive
will then be removed and photographed and
the details of the make, model, size, serial
number, model number and details of any
distinguishing marks taken. It is important to
also make a note of the physical character-
istics of the hard drive such as the number
of heads, cylinders and jumper settings to
ensure that during analysis the forensic soft-
ware detects the same details in case the disk
BIOS has been modified to provide a ‘hidden’
partition. The drive will be imaged and re-
turned to the system or placed in an evidence
bag and removed.
The forensic examiner also has to take into
account that within any premises only cer-
tain computers may be involved in any al-
leged wrongdoing and there are issues of
collateral intrusion as defined in the Regula-
tion of Investigatory Powers Act 2000 (RIPA)
if working in conjunction with law enforce-
ment. Collateral Intrusion is the unwarranted
or unauthorised intrusion into the privacy of
innocent third parties. The forensic examiner
would be advised to detail exactly what steps
will be taken to minimise collateral intrusion
when obtaining the data requested although
this is not a legal requirement for a private
company providing computer forensics serv-
ices. A good example of this would be to turn
off a corporate email server containing thou-
sands of global users to acquire the contents
of one staff member accused of wrongdoing.
Encountering encryption on hard drives is
becoming more commonplace. Often whole
hard drives are encrypted by the computer
literate criminal. This does not cause an is-
sue to a forensic examiner when acquiring
the target disk image as the disk will be im-
aged in the normal way but when the data
is analysed and it is found to be encrypted
the examiner will rely on the owner of the
disk divulging the password. Failure to pro-
vide this to law enforcement may lead to
prosecution. In some cases it is possible to
decrypt encrypted disks without the original
password.
Having knowledge of the perpetrator is very
useful to understand if he is computer liter-
the barrister 29
ate enough to encrypt his hard drive or at-
tempt to destroy evidence. A cunning and
computer literate perpetrator would be able
to destroy evidence beyond what is possible
to recover forensically but this will need to
be performed extremely thoroughly through
a manual process using many different com-
puter applications and with a deep technical
knowledge of computer operating system in-
ternals. These techniques are known as anti-
forensic techniques. Using just one applica-
tion to erase Internet usage does not erase
other associated files used by the operating
system which could still provide evidence to
show which sites were visited and when.
With all the target hard drives imaged se-
curely and the computer systems themselves
placed in evidence bags and removed or re-
turned to their original systems along with all
other computer media, mobile phones, PDAs
imaged and bagged and the exhibit log com-
plete the forensic examiner has the task of
analysing sometimes a huge quantity of data
ahead of him.
Rob Trevelyan is a computer forensic exam-
iner at the security and intelligence company
Thamesbridge.
01256 840002
rob@thamesbridge.com
 30 31
NEWS
ROUND
UP
the barrister the barrister

Banking on Intangibles: Taking Security over

tual notice of restrictions within the charging 4. Perfection and Priority tered in the in terms of s 395. In particular,
document10. In the end, whether a charge is all charges on the goodwill or on any intel-

Intellectual Property a floating charge or not is a question of fact to

be determined by the court.
3. Negotiating and Choosing the Secu-
The value of intellectual property denotes more that just legal rights – it represents an important rity Instrument
aspect of business finance.
Several factors will influence the choice of
By Akalemwa wa Mubiana ni Munalula Ngenda, Lecturer, Brunel Law School, Brunel University security. It is important for the financier to
weigh which form of security affords better
1. Introduction tween the types of security, and these have asset in question. So where there is an equi- protection or latitude than another. The cri-
Creditors taking security must make a point
to establish by due diligence that there are no
pre-existing interests to which their own se-
curity would be subordinated. They also need
to take appropriate measures to perfect their
security interest to avoid being overridden
by a debtor’s subsequent disposition. While
subordination to competing security interests
may not be fatal, the existence of an absolute
superior opposing interest could extinguish
lectual property of a company must be regis-
tered. According to section 396(1) the charge
together with its particulars must be lodged
for registration within 21 days of the date of
creation. In this context ‘charge’ includes a
mortgage19 and intellectual property refers
to a patent, trade mark, registered design,
copyright or design right and any licence un-
der or in respect of any such right20.

T
aking security for provi-
sion of credit offers many
advantages. In insolvency,
secured creditors stand
better chances of getting
their money back than un-
secured creditors. In practice, lenders may
be unwilling to lend without security. Secured
credit is also advantageous to borrowers in
that financiers will almost inevitably lend at
lower interest rates to those who can give
security. When it comes to valuable security,
intellectual property is now considered as an
attractive business asset. Security could be
over a securitisation of the intellectual prop-
erty vis-à-vis royalties or licensing fees. The
commercial value of intellectual property un-
derlines its rapidly growing significance to
lenders as well as borrowers.
While the interface between secured finance
and intellectual property may create synergy
in business, it also raises a number of legal is-
sues. The borrower’s priority to secure credit
must be balanced against the credit provider’s
interest in procuring a realisable form of se-
curity. Similarly, the lender’s desire to retain
significant control over the intellectual prop-
erty needs to be aligned with the borrower’s
ability as a going concern.
2. Forms of Security
Due to the nature of intellectual property as
personalty, the security taken over it is non-
possessory, i.e., in the form of a mortgage
or a charge. The kind of security taken will
depend on a number of issues including the
nature and status of the intellectual property
in question. There are major differences be-
important significance for enforcement of
rights and priorities in insolvency. In general
terms, a mortgage is disposition of property
to secure a debt, whereas a charge is appro-
priation of assets or class of assets for the
satisfaction of a debt, whereby the chargee
is entitled to the asset or its proceeds to dis-
charge the incurred liability1. A charge does
not transfer title, but creates a transmissible
interest2 by virtual of a right of sale. Enforce-
ment of mortgage is of course by foreclosure,
while that of a charge is usually by sale.
2.1. Mortgages
A disposition of an asset as security for a debt
can either be legal or equitable. A legal mort-
gage will conditionally assign the ownership
or legal interest in the intellectual property to
the lender until repayment. The mortgagor is
entitled to a reversionary interest which will
be preserved by the equity of redemption –
an express or implied condition fulfilled upon
discharge of the secured debt. In other words,
the borrower will retain a beneficial equitable
interest in the intellectual property. Where
personalty is assigned by way of mortgage,
‘the right to redeem includes the right to ob-
tain a reassignment.’3 The right to redeem is
an inseparable characteristic of a mortgage
and can only be terminated by judgment for
foreclosure4. Since title passes to the lender
under a legal mortgage, an agreement can
be negotiated for the lender to license all
or some of the intellectual property back to
the borrower especially where lawful use of
rights is necessary to carry on business.
An equitable mortgage will not transfer own-
ership to the lender, but establishes an eq-
uitable interest5 by creating a charge on the
table mortgage the lender only takes benefi-
cial interest in the intellectual property.
2.2 Charges
A charge can be fixed or floating. The former
requires a succinct definition of the specific
asset to be charged, and also specifying who
will exercise control, and how, over the asset.
A floating charge is important business device
as provides some form of security interest to
the lender while ensuring that third parties
can acquire rights in the subject matter of the
floating charge6 by obtaining a title free from
the charge. In Illingworth v. Houldsworth7,
Lord Macnaghten explained the difference
between fixed and floating charges as fol-
lows:
A specific charge I think, is one that with-
out more fastens on ascertained or definite
property or property capable of being ascer-
tained and defined, a floating charge, on the
other hand, is ambulatory and shifting in its
nature, hovering over and so to speak float-
ing with the property which it is intended to
affect until some event occurs which causes
it to settle and fasten on the subject of the
charge within its reach and grasp.
A floating charge does not prevent the carry-
ing on of business in the ordinary way8. This
allows the debtor to make further charges in
an attempt to secure more funds9. The debt-
or is free to dispose of the property charged
through sale or exchange provided the future
event by which the floating charge is caused
to settle on the charged property has not tak-
en place. However, the authority to deal with
the assets in the ordinary course of business
may be curtailed where a third party has ac-
teria for selection of the appropriate security
instrument will take into account the needs of
the borrower while guaranteeing repayment
for the financier. The divisibility of intellec-
tual property allows the lender to make an
assorted demand, say, for the right to: audit;
proceeds; collect payments; consent to licens-
ing; and enforcement.
Both the lender and borrower may require
greater freedom in dealing with the intel-
lectual property. The lender may insist on a
right to sell the intellectual property, by way
of power of attorney or sale, in order to better
respond to the exigencies or favourable con-
ditions of the market. We have already seen
that a borrower wishing for some flexibility
could negotiate for the intellectual property to
be licensed back to them. It is prudent to as-
certain whether there are any pre-existing li-
censing arrangements in order to investigate
the debtor’s ability to transact since the pow-
ers to do so could be limited by some prior
restrictive covenants. Generally, the lender
should seek to obtain as much information
about the intellectual property in question
regarding ownership, validity and duration
of rights.
As a financial service provider, the creditor
must also establish the legality of the transac-
tion being entered into. In some cases official
authorisation maybe required. The enforce-
ability of the security is another matter to
consider. This may depend on whether there
are any adverse interests affecting the lend-
ers position vis-à-vis subsequent encambrac-
ers and unsecured creditors, or indeed, rank-
ing in a winding-up. Here, it is significant
whether the security is fixed or floating and
whether it is required to be registered.
the security interest altogether11.
Perfection consists in taking of steps required
beyond mere attachment to make a security
interest enforceable against a debtor, and also
to make the same effective against third par-
ties12. The latter often requires performance
of an act which puts third parties on notice of
the security interest13. Such additional step
is designed to give notice of the security inter-
est to the world and any would-be purchaser
or encumbracer of the secured asset. Taking
possession of the security is the safest meth-
od of perfection as it puts all those dealing
with a debtor, of whom possession has been
divested, on inquiry and is thus as good as
notice to the world at large14. Registration
or filling is also an important mode of per-
fection of security interests. It is more appro-
priate to refer to registration as lodgement
of the particulars relating to the security and
filing as lodgement of the security instrument
itself or a copy thereof15. However, since it
is common for some statutes to refer to reg-
istration of documents we shall use the terms
interchangeably.
4.1. Registration under the Companies
Act
The Companies Act 198516 creates two
methods for registration of charges. The
company is required to maintain its own reg-
ister where particulars must be entered of all
charges over its property17. The register is
open for inspection to members of the pub-
lic and creditors. The Registrar of Compa-
nies also keeps a register of all particulars of
charges affecting the property or undertaking
of every company.18 Section 396(1) gives a
list of security interests required to be regis-
If a company fails to file the particulars of a
registrable charge the company and every
officer in default, is liable to a fine21. Sec-
tion 395 also provides that the charge would
be ‘void against the liquidator or adminis-
trator and any creditor of the company.’ In
that event, the money secured by the charge
becomes payable immediately.22 So while
registration is the company’s obligation, it is
clearly in the lenders’ best interest given an
unregistered security interest is ineffective
against subsequent secured creditors and the
liquidator and creditors in a winding up23.
Therefore, registration of a security interest
is necessary to preserve its validity vis-à-vis
third parties regardless of it being registra-
ble in another (specialist) register. Otherwise,
through no fault of their own, creditors face
the risk of taking security under a charge
which has become void. The CA 1985 ap-
propriately provides a voluntary registration
scheme under section 399(1) which allows
for registration at the behest of any person
interested in a registrable charge24.
4.2. Under other Legislation
In the case of patents, trade marks or reg-
istered designs, it is important to establish
their registration status at the UK Intellectual
Property Office before taking any security.
These rights are not valid unless they are
registered. However, note that a patent appli-
cation is considered as personal property ca-
pable of being assigned or mortgaged25. The
registrability of a security interest at the UK-
IPO depends on whether it affects registered
or unregistered rights. Any mortgage or se-
curity interest granted over registered rights
must be registered26. Failure to register will
result in loss of priority in case of conflict27.
 32 the barrister
Determination of priority for unregistered
rights, such as copyright, goodwill, unregis-
tered designs and database rights, abides the
normal rules established at common law. It
is important to reiterate that registration of
a security interest over unregistered rights is
merely a perfection requirement. It does not
constitute a priority point.
4.3. Priority at Common Law
The general rule is that among competing
interests, priority is determined by the order
of creation, provided that a legal estate has
preference over an equitable interest. Gen-
erally, where there are competing equitable
interests the first in time prevails28. Because
of the powers of disposition retained by the
debtor under a floating charge, it will in prin-
ciple be subordinated to a later fixed charge,
whether legal or equitable29. Where a sub-
sequent floating charge is created over identi-
cal assets, it will be ineffective in relation to
an existing floating charge if it goes against
the intention of an earlier charge30. How-
ever, the company may create a prior rank-
ing floating charge over part of the assets31.
Here, the specificity of charge and not the
specificity of its subject matter will influence
priorities32.
Even where the floating charge has a negative
pledge clause against the creation of higher
ranking charges, not all third parties taking
with notice of the security interest are neces-
sarily affected by the said pledge33. The bona
fide holder of a later legal charge still has pri-
ority over an earlier equitable charge as long
as they are without notice. Similarly, where a
floating charge contains a clause restricting
or prohibiting prior or pari passu ranking, a
subsequent mortgage or fixed charge will still
have priority provided there is no notice of
the restrictive covenant34. Mere registration
of the floating charge does not constitute no-
tice that it contains a clause with a negative
pledge35. In any event, notice of a document
is not necessarily notice of its contents36.
6. Conclusion
While registration may assure priority, it also
clearly serves to protect the security from be-
ing void against subsequent encumbrances.
Although registration under the companies
Act is the borrower’s responsibility, ultimately
it behoves creditors to protect their interests
by, among other things, effecting registration
to preserve validity. On the other hand, reg-
istration at the UK-IPO assures priority of the
security interest. The call to diligence also de-
mands that financiers do their part in main-
taining the value of the security and ensure
the periodic renewal of registered rights.
1 Re Cosslet (Contractors) Ltd [1998] Ch 495
at 507–8, CA, per Millet LJ.
2 ibid, 508.
3 Halsbury’s Laws of England, 4th ed. (Reis-
sue) vol 32 para 307, fn 1 (mortgagor’s right
of redemption).
4 ibid, para 767.
5 See Re Sharland, Kemp v Rozey (No 2)
(1896) 74 LT 664, CA.
6 Goode, Commercial Law, 689.
7 (1904) AC 355 at 358, HL. Also, see Govern-
ments Stock and Other Securities Investment
Co v Manila Rly Co Ltd (1897) AC 81 at 86,
HL.
8 See per Romer LJ in Re Yorkshire Wool-
combers Association Ltd (1903) 2 Ch 284 at
295, CA: J. R. Lingard, Bank Security Docu-
ments (London: Butterworths, 3rd ed., 1993),
155.
9 Wheatley v Silkstone and Haigh Moor Coal
Co (1885) 29 Ch D 715.
10 Lingard, Bank Security Documents, 156.
11 R. Goode, Commercial Law (London: Pen-
guin, 2004, 3rd ed.), 51.
12 R. Goode, Principles of Corporate Insol-
vency Law (London: Sweet & Maxwell, 2nd
ed., 1997), 419–21.
13 Goode, Commercial Law, 647.
14 ibid.
15 Report of the Committee on Consumer
Credit (HMSO: Cmnd 4696, 1971), para
5.7.13. According to Roy Goode, ‘[t]he dis-
tinction is of substance, for the filing of a
security instrument or copy is public notice
of its contents, whereas according to the or-
thodox view registration of particulars of the
security interest constitutes notice only of the
existence of the security and of the other par-
ticulars registered.’ Goode, Commercial Law,
650 n 25, 664.
16 Note that all the company law provisions
of the 1985, 1989 and the 2004 Acts have
been brought into the CA 2006. The Govern-
ment has since announced the postponement
of the final implementation date of the CA
2006, from 1st October, 2008 to 1st October,
2009. This discussion is based on the Compa-
nies Act 1985.
17 Section 407, Companies Act 1985.
18 Section 401.
19 Section 396(4).
20 See s 396(3A).
21 Section 399.
22 Section 395(2).
23 Section 395(1).
24 Section 339(2) provides that such a ‘per-
son is entitled to recover from the company
the amount of any fees properly paid by him
to the registrar on the registration.’
25 Patent Act 1977, s 30(1), (2).
26 Patent Act 1977, s 32(2)(b); Trade Marks
Act 1994, s 25(2); Registered Designs Act
1949, s 19(1).
27 PA 1977, s 33(1)(a), (3)(b), TMA 1994, s
28 (3)(a).
29 Dearle v Hall (1828) 3 Russ 1; [1824–34]
All ER Rep 28; R. Megarry and H. W. R. Wade,
The Law of Real Property (London: Stevens &
Sons, 1977, 4th ed.), 959.
30 Governments Stock and Other Securities
Investment Co Ltd v Manila Pty Co (1897) AC
81, 86; Re Hamilton’s Windor Ironworks, ex
p Pitman and Edwards (1879) 12 Ch D 707.
28 Re Benjamin Cope & Sons Ltd, Marshall v
Benjamin Cope & Sons Ltd [1914] 1 Ch 800;
Re Household Products Co Ltd (1981) 124
DLR (3d) 325.
31 Re Automatic Bottle Makers Ltd, Osborne
v Automatic Bottle Makers (1926) Ch 412.
32 J. H. Farrar, N. E. Furey and B. M. Han-
nigan, Farrar’s Company Law (London: But-
terworths, 1991, 3rd ed.), 277.
33 Goode, Commercial Law, 666, 686–7.
34 Dearle v Hall (1828) 3 Russ 1; Wheatley
v Silkstone & Haigh Moor Coal Co (1885) 29
Ch D 715.
35 See Re Valletort Sanitary Steam Laun-
dry Co Ltd, Ward v Valletort Sanitary Steam
Laundry Co Ltd [1903] 2 Ch 654; Re Standard
Rotary Machine Co (1906) 95 LT 829.
36 16 Halsbury’s Laws (4th ed.), para 1327.
at Westminster School, on Monday 7 July at
6.30 pm. The panel of speakers will be:
Lord Bingham, Professor Peter Hennessy,
the historian of post – war Britain, Professor
Vernon Bogdanor, professor of government
at Oxford and Sharmi Chakrabarti, Direc-
tor of Liberty. They – and the audience - will
have much to discuss. Is there a conflict be-
tween the law, civil liberties and democracy?
Are “unelected judges” and their judgments
wrongly taking precedence over the judgment
of democratically elected politicians. Have
the “rules of the game” changed as Tony Blair
stated in August 2005; or have politicians,
fearful of the consequences of a terrorist at-
tack on the UK, become irrational in their
approach? The Lord Speaker of the House
of Lords, Baroness Hayman, will chair this
meeting, which promises to be lively and en-
tertaining.
The fourth symposium will be on Law and
Commerce and will be held, suitably, in the
City, at the Guildhall Museum, on Monday
29 September. The speakers will be Lord
Phillips, Lord Chief Justice and a former
Commercial Court judge; Lord Browne of
Madingley, the former Chief Executive of BP,
Sir Andrew Large, chairman of a hedge fund
and formerly Deputy Governor of the Bank of
England and Jan Paulsson, an internation-
ally renowned commercial arbitrator. This
meeting will be chaired by Stephanie Flan-
ders, the well – known economics journalist
and television broadcaster. English com-
mercial law developed during the years of
Britain’s economic ascendancy in the 19th
century. But today traditional common law
notions of “freedom of contract” are much
circumscribed by statute, European Regula-
tions, international economic treaties and
commercial conventions. In this context
one inevitably asks: do the lawyers and leg-
islators know enough of how economics and
commerce work to make appropriate laws in
those spheres – whether on the international
scale or for the consumer? Did the law help
or hinder in the recent “credit crunch” crisis?
Or was it a helpless bystander? Come and de-
bate it in September!
The last symposium will be on law and inter-
national relations. It will take place in King’s
College, on the Strand, on Monday 8 Decem-
ber 2008. The speakers there will be Gener-
al Sir Mike Jackson, former chief of the Gen-
eral Staff, Professor Sir Basil Markesenis QC,
an international lawyer, Sir Konrad Schie-
mann, formerly a Lord Justice and now a
Judge of the European Court and Sir Malcolm
Rifkind QC MP, formerly Foreign Secretary in
John Major’s government. The meeting will
be chaired by Dame Rosalyn Higgins, who is
the President of the International Court at the
Hague. Since Grotius and Vattel’s writing
in the 17th and 18th centuries, it has been
said that there are fundamental principles of
international law: that states are equal, in-
dependent and entitled to maintain their ter-
ritorial integrity. But how far do – or should
- the principles of international law govern
relations between states; or is international
law simply an amorphous body of opinions
which are ultimately unenforceable? And
how are individuals’ rights to be protected
in the sphere of international relations. The
the barrister 33
traditional attitude of the English courts has
been that actions by states or international
organisations “on the plane of international
law” cannot be questioned in domestic courts.
To some degree that has been changed by
International Conventions, eg. The Torture
Convention 1984. But even there, the House
of Lords has recently held that this Conven-
tion does not side step a foreign state’s right
to immunity from suit in the English courts
where its agents are accused of being party
to torture outside the UK. So, is the sphere
of international relations a “lawless world”
as Professor Phillipe Sands has described it?
Come and argue the point!
We hope to publish the speeches of the main
participants in these symposia. They will be a
record of some serious thinking on the devel-
opment of the relationship between law and
society. It should provide a fitting record
of the 400th anniversary of the start of the
modern Bar, which we hope will continue for
another 400 years!
Mr Justice Aikens was educated at Nor-
wich School and St John's College Cambridge
(now Hon. Fellow). Barrister (Brick Court
Chambers)1974 - 1999; QC 1986. Special-
ised in commercial, particularly shipping,
insurance and banking. Recorder 1993 -
9. High Court Judge and nominated to Com-
mercial Court 1999. Presiding Judge of the
SE Circuit 2001 - 4. Judge in charge of the
Commercial Court 2005 - 6. Chairman of
the Commercial Court Working Party on Long
Trials 2007.
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 38
NEWS
ROUND
UP
the barrister
p.1
a result of the Legal Services Act, the
introduction from 2009 of Legal Disci-
plinary Partnerships, and from 2012
of Alternative Business Structures.
Aspirant barristers have, of course, always
risked not being able to obtain pupillages,
then tenancies, and then sufficient work to
establish viable practices. However they now
face a double, perhaps even a triple whammy:
the high costs of the BVC (inevitable granted
the levels of staffing and other resources re-
quired to deliver a programme of this kind,
and to the standards rightly demanded by
the BSB) on top of the debts they are already
carrying from their undergraduate degrees; a
marked and long-term decline in pupillages;
and an ever-narrowing base for traditional,
independent practice.
It is therefore incumbent on all those re-
sponsible for the qualification-process, and
especially of course the Bar Council, the Bar
Standards Board (BSB) and the BVC provid-
ers, to do all that they can to ensure that
those who opt for a career at the Bar do so on
the basis of informed consent.
For that reason alone, the BSB’s decision to
publish a table1 which compares, for each
provider, the number of students who started
pupillages in 2005 and 2006 with the number
who completed the BVC in the same years,
was welcome, timely and generated a great
deal of interest, witness the front-page cover-
age it received in the Lawyer.
However, research conducted by the College
of Law’s Careers Service, suggests that the
BSB’s figures need to be treated with some
caution and, if they are really to be of much
value to those considering the BVC, need
much further refinement.
Firstly, they do not show when the students
who started the pupillages had taken their
BVCs. Therefore, unlike the annual “First
Destinations” surveys which many Careers
Services (including the College’s) carry out,
they can provide only a very rough guide to
the “pupillage-acquisition rate” (PAR) of a giv-
en cohort of each provider’s BVC students.
In particular, the BSB’s figures will tend to un-
derstate the PAR of any provider, such as the
College, whose BVC numbers had increased
appreciably over the relevant period; and, for
the same reasons, overstate that of any pro-
vider whose BVC numbers had decreased.
Secondly, and much more importantly, a sim-
ple “inter-provider” comparison such as that
presented in Routes to Pupillage, fails to iden-
tify the factors which really determine wheth-
er or not BVC students obtain pupillages.
To investigate these, the College conducted
research in 2007, which:
• Matched the information supplied by ex-
1 “Route to Pupillage” in It’s Your Call: a Career at the Bar” Appendix 2
BVC students who responded to its 2006 and
2007 “First Destinations” survey, with that
held on its records system about the respond-
ents’ “pre-BVC” academic record, age, and,
where available, ethnic background;
• Organised the respondents into bands
based on a combination of their degree class
and A level scores (or equivalent). So for ex-
ample, some bands combined high degrees
with high A levels; others high degrees and
lower A levels; others lower degrees and high
A levels; and one lower degrees and lower A
levels”;
• Discovered the PAR for each band; and fi-
nally
• Discovered how far the PAR rate for each
band varied when the respondent’s age and
ethnic background were factored in.
Though perhaps predictable, the results were
nevertheless striking and potentially of some
value both to aspirant barristers and to those
who are carrying out the current BVC review,
and for that reason have been shared with
the BSB.
The key headlines were as follows:
• The best PAR is for those with both top de-
grees and high A level scores, and if anything
A level counts more than degree. So for ex-
ample:
o The vast majority of those with a 1st and
340+ UCAS points from A level had obtained
pupillages, whereas the PAR was significantly
lower for those with a 1st but less impressive
A level scores.
o The PAR for respondents with a 2(1) and
less than 340 points was only slightly high-
er than the PAR for those a 2(2) and 340+
points.
• In each band the PAR for Russell group
graduates was significantly higher than that
for graduates of other universities. Indeed,
almost certainly reflecting the weight which
pupillage committees attach to A level scores,
Russell Group 2(2)s fared far better than oth-
er universities’ 2(1)s.
• Age seemed to make little difference
• The picture on ethnic background is some
what contradictory.
o On the one hand, minority ethnic students
in the top bands had an even higher PAR than
their white counterparts
o On the other, a much higher proportion of
all minority ethnic students than of all white
students are in the “lowest” PAR bands (eg
have relatively weaker degrees and/or A level
scores).
For those considering a career at the Bar, the
messages from these findings are pretty clear
and will, almost certainly hold true, no mat-
ter which provider they select for their BVC:
• Think once, even if you have (or can con-
fidently predict) a 1st class degree and left
school with at least 340 UCAS points. Though
you’ll almost certainly obtain a pupillage and
to practise as a successful independent bar-
rister will prove a hugely challenging and at-
facts and figures
The
tractive way of making a living, yet prospects
for the Bar have never been more uncertain
and you’re very well qualified for a wide
of plans and dreams
range of other jobs.
• Think twice if your degree is lower than 2(1)
or you left school with less than 340 UCAS
points.
• Think twice again (and then some) if your
degree is lower than 2(1) and you left school
with less than 340 UCAS points
• Think one time less if, even though your de-
gree is lower then 2(1), you obtained it from
a Russell Group university.
For those in the BSB and the Bar Council who
are currently reviewing the BVC, and entry
to the Bar more generally in the wake of the
Neuberger Report, the messages are, per-
haps, more complex. So too are they for the
BVC providers who are nervously awaiting
the outcome of this review.
This is most especially the case in relation to
the debate over whether the raise the entry
requirement to a 2(1) degree.
• At first sight the findings seem to lend
strong support to those who have been urg-
ing the BSB to do just that.
• However, because only a very small pro-
portion of “2(2)s” – almost all of them with
340+ UCAS points and Russell Group degrees
– now obtain pupillages anyway, it would
have little impact on the overall numbers or
the academic standards of those entering the
profession.
• It would certainly reduce the number of BVC
students, and by the same token the number
of unwelcome applications which pupillage
committees have to wade through each year.
• However if the intention is to protect those
with little or no prospect of pupillage from
embarking on the BVC with all its associated
costs and risks, then the College’s findings
suggest that any change in entry require-
ments ought to be expressed more in terms
of UCAS points than of degree classes.
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