Issue 24 The Circuiteer News from the South Eastern Circuit Spring 2007 Education and the Bar Looking Outwards A Tribute to Tim The Second Ebsworth Memorial Lecture Page 6 Page 16 Page 18 A Note from the Editor Busola Johnson, who left the Bar for the CPS, feedback to a delegate who is taking it on board. reassures us that her new colleagues are just as One is tempted to say that Keble is the best committed to doing a good job as were her old. advocacy course in the world, but that would This Circuiteer is dedicated to education. The relegate Florida to be second best. It is also a old idea that it ended for a barrister on the night he brilliant week in which people can polish their skills or she was Called now seems like ancient history. even in a foreign jurisdiction. Members of the First, the ‘Bar finals’ became the skills-oriented appropriate vintage are urged to apply. BVC. Once it was accepted that advocacy was not The Bar’s ability to educate itself is something which was inherited but could be taught, demonstrated once more by our three learned the gates were wide open. It is now being articles. Each dispels a facile assumption about suggested that training should extend beyond ‘new that branch of the law. Have newspapers libelled practitioners’. Although the Inns demur, on the someone by printing something which is untrue? grounds that they lack enough barristers willing to Not necessarily so, as Adam Speker sets out in his The Circuit elected a new leader in December. Our donate their time, it remains, for those with explanation of the latest case on Reynolds congratulations to David Spens, Q. C., who in his sufficient imagination, an exciting prospect of privilege. Are family courts closed to all but the first Leader’s Column plunges straight into the innovative courses, tailor made for one’s actual participants? Not always, as Poonam Bhari points issues which most concern members. While his specialism. out, and perhaps even less so in the future. She predecessor, Tim Dutton, Q. C., struggles with the Education of course does not always happen in also tells us what children—after all the subject wider issues as Vice Chairman of the Bar, Tim’s the classroom. Doris Brehmeier-Metz, a matter of many hearings—think should be done. three Juniors pay tribute to his successful years as distinguished German state prosecutor who Aren’t all criminal matters proved beyond a leader of the Circuit. The Circuit itself is now so big decided to qualify as an English barrister, simply reasonable doubt? Not under the current trend to that there are four presiders. The not quite new taught herself the law—with a little tutoring— use the civil standard of proof to obtain orders, the boy, Mr. Justice Calvert-Smith – who as a former over a period of months and in her second breach of which have penal sanctions. Maya Sikand practitioner and DPP needs little introduction – language. She tells us of her determination, of her explains this disturbing trend. And for those who generously discusses his role and how it feels to be love of her Inn and of how she took what she has want to sharpen their skills without attending a on the bench. learned to her own jurisdiction. Dara Islam, in course, Witness Testimony, reviewed here, is One issue on which the Circuit is unequivocal contrast, has taken a roundabout route, taking required reading. is its commitment to diversity. Although scarcely advantage of opportunities all over the world. The Even in the darkest times, though, pleasure anyone would disagree with that, the Carter cover shows him playing the witness in Jamaica and beckons to the Bar. Our restaurant critic, Tetteh process has created the risk that a price- amongst colleagues in Nigeria. Turkson, returns to give his verdict on the latest competitive criminal justice system will hit hardest This is the time of year to recall that the Circuit outpost of the Gordon Ramsay empire. The always just those who make diversity in it possible. Oba furthers the education of its own. The splendid enjoyable Circuit trip this year is taking place in Nsugbe Q. C. and Marcia Williams, who are best Dame Ann Ebsworth lecture was given this year by Istanbul. Details are inside. And our great annual placed to discuss this, tell us what worries the Mr. Justice Harms of South Africa—Alex Price- gathering—the dinner—will happen on June 29. Carter Diversity Group Marmion reports. The cover shows a ‘Keble Book now, using the form within. Another issue vexing circuiteers is the use of moment’ from 2006: Philip Bartle, Q.C., then our Higher Court Advocates in the crown courts. Director of Education, conscientiously giving [email protected] Table of Contents A note from the editor, page 2 Bar to HCA: the Upside, page 11 The ‘Civilisation’ of Criminal Law, page 22 Leader’s Column, page 3 Carter and a Diverse Profession, page 12 Privilege, and this time we mean it, A Presider and the Circuit, page 4 page 24 Confessions of an Advocacy Trainer, Looking Outwards, page 6 page 14 Transparency in Family Proceedings, page 26 The Education of a Pupil, page 7 Istanbul, page 15 maze: Dining at a Star? Go to Florida, page 8 Tribute to Tim, page 16 Page 28 Florida, page 9 The Second Ebsworth Memorial Evidence: the other Perspectives, Lecture, page 18 page 29 Advocacy Training for the Young Bar, page 10 The Annual Dinner, page 21 Bar Mess Reports, page 30 2 The Circuiteer Leader’s Column criminal Graduated Fee Scheme. It has been If you encounter the extremes of bad designed to deal with the distribution of the single practice, for instance briefs being withdrawn after fee paid to the Instructed Advocate and to ensure delivery with instructions for trial, and/or when a it is fairly shared among senior and junior plea is in sight, or the instruction of ‘straw’ juniors barristers. It requires barristers to adhere to in serious cases, please e-mail me directly at certain rules concerning who is the Instructed [email protected]. What I require is evidence, Advocate in a case and who, if anybody, is being not anecdote, which will be treated in confidence led; the permissible grounds for returning a brief, and anonymised. and measures designed to ward off such an It may reassure you to know the leadership of eventuality; the resolution of disputes; the the Bar Council is very alive to the problems of the structure of payments and accounting systems; criminal practitioner and has produced “A and tax. Discussion paper on current issues facing the It has important consequences for chambers’ Criminal Bar” which can be found on the CBA management. Cheques to IA's will be paid into one website at http://www.criminalbar.com/papers chambers account, out of which payments will be which I recommend. distributed twice a month. Some chambers I, for my part, have organised a meeting on already have such a system which works well. 19th April for the Presiding Judges of the Circuit, Other chambers may be required to change their all the Resident Judges, and the Bar Mess constitutions. Chairmen at which Lord Justice Leveson, the Of particular importance is the requirement Senior Presiding Judge of England and Wales, will that barristers or their clerks sign a letter on address case ownership, listing practices, receipt of instructions (a draft is at Annex D of the mentions and other concerns. Fees Protocol) which will contractually bind the Unsurprisingly, still not a day passes when the Instructing Solicitor (and hence any in-house Projects publicly funded Bar is not under further threat of advocate) to the Protocol. If all members of the Recently the Circuit established a new form of cuts in fees. Bar contract on this basis it should mean there subscription, that of judicial membership, to One of the favourable aspects of Lord will not be abuses of the young Bar either by establish and maintain contacts between the Carter’s report was that no changes needed to be senior barristers or by solicitors. bench and the Bar. Twenty eight circuit judges made to the family GFS. However on 1st March the have already joined; we are now approaching the government published a consultation paper Higher Court Advocates High Court judiciary. entitled ‘Legal Aid Reform – Family and Family The CPS has been deploying HCAs in increasing I am concerned that there may have been a Mediation Schemes’. The most alarming proposal numbers across the Circuit. To ensure briefing growing number of unmeritorious disciplinary is that in private law cases a new scheme will be practices are equal and fair the Bar and the CPS cases brought against members of the Bar introduced for solicitors and barristers from have worked together to reach an agreement resulting in acquittals but without any award of October 2007. There has been a six month which has been reflected in a Statement of costs or an insufficient award to cover the consultation period, closing on 16th April. Work Principles. expenses of the defence. I have set up a working for and in preparation for a final hearing will be There remains justifiable concern that CPS party to investigate whether the test for excluded from this scheme until April 2008. HCAs are doing too many PCMHs and then not instituting prosecutions is sufficiently high, and However, in relation to interim hearings the paper doing the trials. This is in conflict with the Carter what more can be done to secure the award of if states it will be the responsibility of solicitors to ideal of case ownership from beginning to end.