Features

The first of a series of lectures in Westminster Abbey to celebrate 400 years of the King James Bible was given by the Lord Chief Justice, Lord Judge.  

Counsel’s editor, Sally McCleery reports 

Dominic Regan and Sean Jones recommend wines for the festive season.  

At Christmas, even those who don’t drink, do. Here are our recommended buys for the season ahead and there is something for everyone. We anticipate a repeat this year of the internecine warfare between the big supermarkets. Keep your eyes open for buy 6 and get a 25% discount, something that all the big chains did last year. Majestic Wine now only insists that you buy a minimum of 6 bottles and their staff are very well informed. 

November 11, 2011 @ 11:02
“The best weapon against an enemy is another enemy.” ~Friedrich Nietzsche.

I can record truthfully that I never like staring at defendants in court. I remember a perfectly lovely character at the Bar, glorying in the name of Marmaduke Rapp-Pitney, who was incredibly short sighted and wore a rather terrifying pair of spectacles, which contained glass so thick and spiralled that it almost hid his eyes. When a defendant was brought up, Marmie would turn round and simply stare at the poor alleged miscreant. All, except the most brazen, flinched. Some changed their plea.

October saw consultant editor of Counsel, David Wurtzel, interviewing incoming Chairman of the Bar Council, Michael Todd QC, about his plans for the role he was about to take on.  

“What I would like to see is a meritocracy. What I would like to see is the opportunity for people who have the ability to come to the Bar,” is how Michael Todd QC, the new chairman of the Bar, describes his personal vision. His own career is a perfect example. He comes from a family where there were no lawyers. His father spent most of his working life in a factory as a machine tool engineer, “but a brilliant one”. 

Toby Craig and Charles Hale review the legislative issues of 2011 and how these may unfold in the year ahead
  

Good tidings we bring 

Yes, ‘that’ time of year is approaching once again, the festive season soon upon us. Many would be forgiven for thinking about what they might hope to find in their stockings. It would be all too easy to cast the Lord Chancellor as the Grinch, rather than St. Nick, as legal aid is snatched away from the poor, the needy and the vulnerable. ‘Tis the season as they say.

We should also warn you to take special care with Counsel. It may be the new trend for our friends in Parliament to discard important papers in park bins. We are confident that Counsel readers are keen recyclers, though back copies surely adorn their bookshelves and are displayed with pride.
As Parliament begins to wind down a busy legislative programme continues. The Legal Aid Bill completed its course through the Commons, to a greater or lesser extent intact and the Protection of Freedoms Bill, of which every lawyer should be aware, began its Lords stages.

The Culture Committee could not be accused of being in a festive mood as it recalled James Murdoch for a second round of evidence. No shaving foam pies this time around, but Tom Watson was on hand as ever to deliver a verbal assault. Sadly for Murdoch Jnr, Wendy Deng was not on hand to issue a right-hander this time. 

The Bill 

The Legal Aid Bill continues to pre-occupy our minds. It was disappointing, though not surprising, to see that the only substantive changes were unforeseen and came on the Sentencing side (a greater penalty for death by dangerous driving and the removal of IPPs). There may not have been many victories at this stage, but a number of markers have been put down and there are MPs on all sides of the House who are publicly or privately supportive. There remains hope that the greatest scrutiny will take place in the Lords, where, one prays, their Lordships will bring a higher level of understanding to some of the more technical aspects of the Bill (particularly in Part Two, which grapples with the Jackson reforms).

The Bar Council’s lobbying in the Lords is well underway. Peers were briefed on all aspects of the Bill at a well-attended cross-party briefing and written materials have been distributed widely. The family aspects of the Bill have maintained a dominant role in highlighting some of the worst elements of the proposed legislation.

As the Family Justice Review published its final report, followed by the Civil Justice Council’s impressive report on litigants in person, the abundantly clear theme is that DIY justice is slower, more expensive and more likely to lead to bad results for parties representing themselves. It is barely worthy of being called justice. The very well received Manifesto for Family Justice, which has drawn together such a broad range of high profile interest groups, continues to act as an effective tool in promoting particular amendments to the Bill. For now, it is in their Lordships’ hands. 

The Other Bill 

The other important piece of legislation, which has floated slightly under the radar, is the Protection of Freedoms Bill. This provides an opportunity to amend the Regulation of Investigatory Powers Act 2000, which permits the police and other public authorities to target legally privileged material. Ah, you’re awake now; yes we did say legally privileged material.

The erosion of this fundamental principle which has long underpinned the giving and receiving of legal advice needs to be looked at again. It has been mooted that the current situation is a breach of our obligations under the ECHR and forthcoming EU legislation. The very real potential for abuse was made plain in the recent Boyling case; the undercover officer accused of infiltrating the direct action group, Reclaim the Streets, to spy on them. When a number were arrested he did not break cover. Instead he is alleged to have carried on in the false identity which meant giving false and misleading evidence in court and obtaining access to what the defence case was, including meetings with defence solicitors. Clearly this included access to legally privileged information. The facts in that case are not yet clear, but the extremely worrying consequences of this legislation must be.

It is interesting to replay the Coalition Agreement’s stance on civil liberties:

“We will be strong in defence of freedom. The Government believes that the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties.”

Well that seems fairly clear. It is particularly surprising that the Liberal Democrats are willing to sign up to this. The House of Lords will undoubtedly have concerns about the unamended Bill, and we must hope that they take the opportunity to make the necessary changes in the spirit of the Coalition Agreement. 

Revolving doors 

As one door closes, another door opens. We bid a fond farewell to Peter Lodder QC, who has worked tirelessly on behalf of the Bar. But we offer a warm welcome Michael Todd QC, who brings with him an exciting and an ambitious agenda; more on that in January.

Looking back, it has been a frenetic year; the Coalition Government seems increasingly stable, as it retains a steadfast commitment to tackling the deficit. There have been the usual political crises and departures such as that of Liam Fox which captured the headlines, but the Cabinet remains largely unchanged. And the Opposition? Well they have been conspicuously unable to open up any kind of lead in the polls, and at this stage in the Parliamentary process, the Government is on fairly firm ground. But a week can be a long time in politics and with the Eurozone situation increasingly unclear the financial policies on which the Coalition is built may well be at risk in 2012.

The Bar Council’s strong parliamentary links are further fortified by the welcome news that Lord Carlile of Berriew QC, the former independent reviewer of terrorism legislation, has been elected to the Council. We welcome him as we do all those highly capable new members elected along with him.

So the end of another year. Peace and goodwill to all WW readers and here’s to a prosperous, Olympic 2012. 

Giles Murphy and Rachel Stone suggest how to improve financial discipline and create a clear human resources policy within chambers. In any professional services business, having good people and sufficient cash are pre-requisites. However, in many chambers, both often receive insufficient attention. So what should you be doing to reduce risk and maximize the opportunity from both?   

As a minimum, the management team should receive a set of regular management accounts on at least a monthly basis. The management accounts need to be accurate, but more crucially, they need to be timely. It is much better to have a prompt set of management accounts, say within 10 days of the month end that incorporate some estimated figures, than to wait several months for precise data which is then out of date. 

Dr Fiona Leverick discusses the role of the UK’s Supreme Court in Scottish criminal matters

The recent judgments of the United Kingdom Supreme Court in Cadder v HM Advocate [2010] UKSC 43 and Fraser v HM Advocate [2011] UKSC 24 have whipped up something of a storm in Scotland. In Cadder, the Supreme Court (“SC”) overturned a decision of seven judges of the Scottish High Court of Justiciary (“HCJ”) and held that the use at trial of admissions made by a suspect who had not been offered legal assistance violated his right to a fair trial under art 6 of the European Convention on Human Rights (“ECHR”). In Fraser, the SC quashed the conviction of the defendant on the basis that he had been denied a fair trial due to the non-disclosure of information by the Crown. His appeal had been unanimously refused by the HCJ. 

John Maher recommends the wines from Valencia.   

They make a perfect accompaniment to every dish, he enthuses. 

Toby Craig and Charles Hale give Counsel an overview of this year’s party conferences

When surveying the Parliamentary terrain, particularly over the course of party conferences, there are always particular issues or events which stand out and capture the imagination. It might be a policy division, a sartorial misjudgement, or a “catty” remark in a speech. It is also an opportune moment for negative stories, which have been in the pipelines, to spill out. This year’s conferences proved no exception, though understandably, most eyes fell on the Conservative conference, which drew in the largest numbers. 

Matthew Amey looks at the removal of recoverability of success fees and ATE insurance premiums, and the impact this will have on commercial litigation counsel

Losing recoverability means losing control. Over the past decade, not all barristers have  embraced the idea of sharing risk with their clients through conditional fee arrangements (‘CFAs’). Indeed, some  felt that it adversely affected their independence when providing advice to the client, particularly with regard to settlement offers.