the ESSENTIAL READING FOR EST. 1999 PRICE #82 1st October -20th December 2019 £2.80 Michaelmas term issue www.barristermagazine.com ISSN 1468-926X Diversity must be put at the heart of the legal sector’s future Features The Law is now an App In 1914, the radical pamphlet (Removal) Act 12 ‘Sex Differentiation In Salary’ was 1919 which first Michele Smith looks at how published, arguing that women should allowed women products are integrating to provide have equal pay for equal work. Its to qualify as a modern one-stop service for author was Helen Normanton, who lawyers. chambers and barristers. later became the first female barrister in the UK. As a lawyer Diversity at the Bar myself, I am 16 Already a history lecturer and delighted to Dr Miranda Brawn, shares her qualified teacher, Normanton applied reflect on this views on diversity at the bar. to study law in 1918 at the Middle occasion and Temple. She was refused on the the female grounds of her gender. However, in pioneers of our Catherine McGuinness Crackdown on the misuse of 1919 a landmark piece of legislation profession, like Policy Chair at the City of 24 NDAs was passed, paving the way for Normanton, London Corporation By Beth Hale, Partner and Harriet Normanton and countless other who were at the Riddick, Associate, CM women to realise their ambitions of a vanguard of such Murray, Employment & Partnership career in law. a seminal moment in legal history.

While 2019 will be largely And there is no doubt that huge remembered for domestic political strides have been made in the The Importance of Pursuing turbulence, for lawyers, it marks a march to gender equality in our 28 Mediation milestone we should all celebrate: the sector. It is thanks to this Act that p.6 before Starting Legal centenary of the Sex Disqualification Elsie Bowerman became the first Proceedings By Patrick Cannon, tax appeals barrister The BSB’s new Bar Authorisation to provide Qualification Rules New applicants Chambers and other organisations that News want to start providing pupillage for On 1 April 2019, our new Bar the first time must meet the criteria for New Commissioners announced Qualification rules came into effect. authorisation set out in the Authorisation 4 at the Law Commission They can be viewed in Part 4 of the Framework. You will need to apply BSB Handbook and should be read in to become an Authorised Education and Training Organisation (or AETO). conjunction with the Bar Qualification BSB appoints members of its For most applications, there will be 5 new Independent Decision- Manual, which sets out how the rules a flat fee of £250. Before submitting making Body (IDB) are applied. The changes to the rules an application, please contact us at are an evolution, not a revolution. Our [email protected]. aim has been to make training for uk. We also suggest that you familiarise yourself with the Authorisation the Bar more accessible, affordable Framework, the Bar Qualification Manual Publishing Director: and flexible, while ensuring that Derek Payne and the Professional Statement. These 0203 5070 249 the brightest talent continues to documents, together with guidance email: [email protected] be attracted to the Bar, and can be to assist you with the application, are Publishers: media management available on our website: developed in such a way as to sustain corporation ltd Design and Production: the high standards rightly expected of https://www.barstandardsboard. Jeremy Salmon p.7 email: barristers. org.uk/qualifying-as-a-barrister/ [email protected]

the barrister Michaelmas term 2019 01 02 the barrister Michaelmas term 2019 www.barristermagazine.com NEWS Police Service said recently that “overall police [crime] detection rates Bar Council nationally are woefully low” and that the “courts are emptying, not filling”. warning over If crime is not detected, it cannot be recorded, investigated or prosecuted, latest criminal so the official figures are just the tip of an iceberg. Criminals are going about justice figures their business unchallenged: fraud goes virtually unpunished and is not even included in the statistics. “The recent focus on the state of the criminal justice system by the Responding to the Ministry of Justice’s government is welcome, as are the public service. Our democracy, society Criminal Justice Statistics quarterly, additional resources, but the whole and our economy depend on a properly England and Wales, April 2018 to system is broken or breaking and the functioning, fair, justice system, that March 2019, Richard Atkins QC, Chair focus needs to be on every part: Legal the public can have faith in. Sadly we of Bar Council, said: Aid and access to legal representation, fear that this is no longer the case. prosecution, courts, forensic science, “Criminals up and down the country “These statistics make for grim probation, as well as police and will be rubbing their hands with glee reading, however, the state of prisons. The Bar Council, MPs, senior knowing that even if their crimes are the criminal justice system is far judges and others have been calling out detected and they are caught by the worse than the figures show. The for reversal of the draconian cuts to the police, the chances of them being Commissioner of the Metropolitan justice budget - the steepest cuts to any prosecuted or jailed are slim.”

pro bono work. Without this level of commitment, Deirdre’s clients simply Introducing Deirdre would not have been able to proceed. Deirdre has also been recognised Fottrell QC: Pro Bono for her role as leading counsel for the prospective Special Guardians QC of the Year 2018 and in the case of Re B. Deirdre drafted an extensive skeleton argument and deputy High Court Judge appeared in the Court of Appeal for five days in this case, earning praise for dedicating huge chunks of her time to pro bono. Sarah Morgan QC has described it as “entirely typical” of Deirdre to take on cases blending Deirdre Fottrell QC has been involved “Deirdre is the whole package, and both personal family importance to the in fighting for children’s rights since her academic ability and strategic individual and wider public significance to the profession, all on a pro bono the early stages of her career. Barrister ability are second to none” – Chambers UK 2019 basis. In September 2018, Deirdre at 1GC Family Law, Deirdre was was appointed as a deputy High Court nominated for her role in recent In the recent case of Williams v The Judge in England and Wales, another important family cases, leading from noteworthy achievement of her the front in encouraging barristers at London Borough of Hackney, Deirdre acted pro bono as leading counsel impressive career to date. all levels to take on pro bono cases. for the appellants, which had a huge Having worked as a university lecturer impact both on the clients and on Pro Bono QC of the Year 2019 is kindly before coming to the bar, Deirdre has the use of s20 Children Act 1989 as sponsored by Therium Access. The both the academic and professional a whole. Deirdre even went as far winner will be presented with their finesse to deserve the title of Pro Bono as to make herself unavailable for award at the Bar Pro Bono Awards on QC of the Year, setting the bar high for paid work in preparation for this Wednesday 6th November in Pro Bono this year’s nominees. case, fully immersing herself in her Week 2019. Nominations are now open

Until now, the BSB Handbook stated evidence that every member of a chambers’, base for BSB introduces or a BSB regulated entity’s, workforce future must give their consent before diversity new rules to remove aggregated and anonymised data on initiatives. sexual orientation, religion and belief restrictions on can be published. The removal of this BSB Head restriction will see these data treated of Equality and Access to Justice, reporting barristers’ in the same way as other diversity Amit Popat, said: “The removal of characteristics. This includes a this restriction will make disclosing sexual orientation, requirement not to publish if there is a aggregated and anonymous data on the religion and belief risk of any individuals being identified sexual orientation, religion and belief from the data. Under no circumstances of barristers easier. We hope this will data would any member of a chambers’ help the Bar show a more accurate or an entity’s workforce be obliged to picture of its diversity.” disclose their diversity characteristics if The Bar Standards Board (BSB) has they do not wish to do so. The new version of the BSB Handbook published new rules that remove can be found at https://www. restrictions on the reporting by the The regulator hopes that this will barstandardsboard.org.uk/regulatory- profession of sexual orientation, help to demonstrate the diversity that requirements/bsb-handbook/the- religion and belief data. exists at the Bar and lead to a stronger handbook-publication/

the barrister Michaelmas term 2019 03 NEWS www.barristermagazine.com

forward to working with them.”

Professor Penney Lewis said: New “I hope to use the breadth of my expertise and experience to provide Commissioners solutions that help to modernise and simplify the criminal law and ensure it announced works for everyone. at the Law I am particularly excited to begin with the interlinked projects to Commission improve the protection offered by the law to the growing number of victims of hate crime, offensive and abusive communications and the The Government has announced the Commission keeps abreast of emerging non-consensual sharing of intimate appointments of Professor Penney developments in bioethics, cybercrime, images.” Lewis and Professor Sarah Green “big data”, security and privacy, as new Commissioners at the Law artificial intelligence (AI) and the digital Professor Sarah Green said: Commission for a period of five years. economy. “Technology poses a series of complex problems for lawmakers and wider Professor Penney Lewis will replace Sir Nicholas Green, Chair of the Law society. The work the Law Commission Professor David Ormerod QC as the Commission, said: is undertaking on such matters as Commissioner for Criminal Law while “We are absolutely delighted to intermediated securities and smart Professor Sarah Green will replace welcome Professor Penney Lewis and contracts can help unlock obstacles Stephen Lewis as the Commissioner for Professor Sarah Green to the Law to business, which will be especially Commercial and Common Law. Both Commission. The pool of candidates important in the trading environments will start on 01 January 2020. for the two positions was exceptionally of the future. strong. They join the Commission at a time of I look forward to joining the great constitutional, economic, social, Our two new appointments bring with Law Commission to tackle these scientific and technical change and them to their posts tremendous skills challenges and to assist in shaping will be instrumental in leading law across a wide range of subject matters the legal reform that will allow these reform in England & Wales. As part of and issues that will be of importance technologies to thrive in the UK.” their roles, they will help ensure the in the coming years. We are all looking

• For findings that result in a BSB updates sentence involving a period of suspension from practising as policy on the a barrister for 12 months or fewer the period will be 5 years publication of in addition to the duration of the suspension period (the current disciplinary Publication Policy specifies a publication length of 10 years); findings • For findings that result in a limited to publication on the BSB’s sentence involving a period of against website whereas the updated policy suspension from practising as a covers publication by all means barrister of more than 12 months barristers including on the Bar Register and on the period will be 10 years in request. addition to the duration of the suspension period (the current This update will help to ensure Publication Policy prescribes that the BSB continues to meet the indefinite publication); The Bar Standards Board (BSB) requirements of data protection • For findings that result in a decided to update its policy on the legislation and seeks to strike the right sentence involving disbarment the publication of disciplinary findings for balance between public protection period will be 60 years (the current professional misconduct. The policy and the impact on the profession of Publication Policy prescribes will in future extend to all avenues publication. indefinite publication) by which the BSB puts disciplinary findings into the public domain and the Having carefully considered the views lengths of time for which such findings of key stakeholders at a roundtable Speaking about the updated policy on are made publicly available have also meeting in June, the regulator has now the publication of disciplinary findings, been revised. agreed to update its policy. The new BSB Director of Professional Conduct, publication policy is due to come into Sara Jagger, said: The current Publications Policy has effect on 15 September 2019. “This update to our Publications been in place for many years and Policy reaffirms our commitment to covers the publication of all findings The revised lengths of time for which protecting the public. As a public of professional misconduct, and disciplinary findings will be put in the interest regulator it is essential that the associated sanctions imposed public domain by the BSB will be as we put the needs of the public first, by Disciplinary Tribunals or via the follows: but we also need to ensure that we Determination by Consent procedure. take into account the impact on the The Bar Tribunals and Adjudications • For findings that do not result profession of publishing disciplinary Service (BTAS) also publishes in a sentence involving a period findings. The revised policy, in our Disciplinary Tribunal findings on its of suspension or disbarment - view, strikes the right balance. The website. information about them will be public will continue to be able to access available for 2 years (this is the relevant information, so they can make However, the BSB’s current policy is same as the current Publication informed choices before engaging the Policy); services of a barrister.”

04 the barrister Michaelmas term 2019 www.barristermagazine.com NEWS

BSB appoints members of its new Independent Decision-making Body (IDB) Sara Jagger, BSB Director of Professional Conduct

the profession are maintained.” Decision-making Body (IDB) which will begin its work on 15 October. About IDB The appointees to the BSB’s Independent Decision-making Body are as follows: The Independent Decision-making Body has been created to take Barristers Lay independent decisions on relevant regulatory issues including enforcement Sarah Blackmore David Abbott of the professional obligations of Daniel Bunting Richard Bayly those regulated by the BSB, and Louisa Cannon Christine Braithwaite the authorisation of certain types of individuals and entities to provide legal Aidan Christie QC (Chair) Andrew Brennan services. Iain Christie (Vice-Chair) Sarah Brown Deborah Cullen Cindy Butts The IDB is made up of a pool of James Cutress QC Alan Clamp barristers and lay members. It will Tim Grey Robin Field-Smith take decisions on individual cases Anthony Harrison Paul Grant with panels of three members being used for authorisations decisions and Jamie Hunt Sue Heads panels of five for enforcement and Paul Jarvis Philip Insuli disciplinary decisions. Establishing the Camilla Lamont Nicola Jackson IDB is the final component of the BSB’s James Petts Tanya Kynaston programme to modernise its regulatory Michael Salter Karen McArthur decision making. Paul Sinclair QC Pauline McCabe Most of the decisions the IDB will Nicholas Stonor QC Brian Moore take will be in relation to whether Gemma White QC Eileen Neilson disciplinary action should be pursued Sandra Norburn where potential breaches of the Debra Pearlman professional obligations, as set out Marie Pye in the BSB Handbook, are serious John Sills and may amount to professional Ranjit Sondhi misconduct. The IDB will also be responsible for, amongst other things, Judith Webb taking decisions in relation to appeals against executive decisions not to BSB Director of Professional Conduct, Sara Jagger, said: “I am delighted to grant waivers from the Handbook welcome the members of our new Independent Decision-Making Body and look requirements or decisions not to forward to working with them. The response to our request for applications authorise or license a body to provide to join the IDB was overwhelming. I am proud that the BSB has been able to legal services. appoint such a high calibre pool of people to assist us in ensuring the standards of

Society launched its UK-EU future for legal services so that English and partnership - legal services sector Welsh solicitors can maintain their Britain’s legal report. right to practise in the EU. “Our sector contributed £27.9 billion “Such an agreement should replicate sector set for to the UK in 2018 – 1.4% of GDP – and the Lawyers’ Directives, which provide in 2017 posted a trade surplus of £4.4 EU-wide rights on services and significant billion, according to the Office for establishment, as other models are National Statistics (ONS). Much of this unlikely to deliver the comprehensive slowdown in event balance of payments surplus is down practice rights that have substantially to access provided by EU Lawyers’ contributed to the UK legal sector’s of no-deal Brexit Directives. large export surplus of £4.4bn as of 2017. “In general, we have a trade surplus with the EU27 when it comes to “There are precedents for such Britain – Europe’s biggest international services. We have a trade deficit when agreements providing necessary in- provider of legal services and number it comes to manufacturing. depth frameworks on legal services: the two in the world – could take a £3.5bn EU has association agreements through hit from a no deal Brexit, solicitors’ “And in 2018 the total tax contribution the EEA with Norway, Liechtenstein leaders warned of legal and accounting activities and Iceland and with Switzerland. was estimated to be £19.1 billion – These extend the application of the “According to our estimates, the potentially funding the salaries of Lawyers’ Directives to EFTA countries. volume of work in legal services would doctors, nurses, teachers and police be down £3.5bn* – nearly 10% lower officers. “The UK legal system is globally than under an orderly Brexit,” said “That is why we are urging the UK respected and the liberalisation Law Society of England and Wales government to negotiate a future of services in the EU has directly president Simon Davis as the Law agreement that enables broader access contributed to its success.”

the barrister Michaelmas term 2019 05 female barrister to appear The legal sector has responded to tackle other inequalities in the p.1 at the Old Bailey leading the with its own flurry of campaigns, sector. That means more BAME way so that today, half of the led by inspiring women and men lawyers, more LGBTQ+ lawyers, Central Criminal Court’s team who are calling for change. Take are more lawyers with disabilities. of permanent judges are women. the campaign group, Behind the Gown, which was set up tackle the And, although we still have more to It is thanks to this Act that today problems of fair access to work, do to ensure equal representation there is a ratio of 50:50 male and sexual harassment and keeping across every echelon of the legal female solicitors and that in 2017, women in the Barrister profession. sector, we should remember the we witnessed the first woman lessons of this Act. In 1919, the be sworn in as President of the The campaign, led by female judiciary had the opportunity to Supreme Court. QCs, shone a light on some of the meet the changing expectations barriers to progress for women. of society. To prove that, despite But despite great progress made In addition to retention at a senior its historic roots, it was willing in the legal sector, the glass ceiling level, they have argued that to adapt and modernise to better has not yet been smashed. Over reporting work-place issues is represent those it served and to 100 years later, Normanton’s idea difficult because of the ‘close-knit ensure that the UK’s legal services of equal pay for equal work has and collegiate character’ of the Bar, were fit for the modern world. not yet been realised. The lack of alongside its hierarchical structure women in senior positions in the and the dependency of young One hundred years ago, such sector and the legal gender pay barristers on patronage for career adaptation enabled women to gap demonstrates the challenge at progression. Compounding this, enter the legal sector, bolstering hand. they argue, that as a profession of English jurisprudence, ensuring self-employed practitioners, the our judiciary was representative of And these two issues are normal human resources structures all those it served. Yet one hundred inextricably linked. Only 33 per of most workplaces cease to exist. years later, we are once again cent of partners in law firms are asking if we are ‘fit for the modern female, while only 21 per cent of all And that is why the City of London world’. lawyers are BAME. The prospects Corporation, along with the Law of becoming a partner in a law Society and Bar Council, are Today, as we continue to strive to firm are still higher for white working hard to tackle this issue attain gender equality across all males than any other group, while head on, so that we can push ranks within the legal sector, it is BAME women are particularly positive initiatives which will help time to adapt again. We should disadvantaged when it comes to to remove the existing barriers take a moment to reflect on the reaching this seniority. for women in the sector, change radical and brave thinking of the cultural practices and put men and likes of Normanton, and continue This is not a talent pipeline women on equal footing. to follow the road to equality with problem. According to the Law the same vigour with which those Society, women continue to be We are playing our part by working female pioneers began the journey well represented at most levels, closely with the Government 100 or so years ago. including many middle managers Equalities Office in an effort to in the upper quartile. Yet when it improve women’s progression in For by improving diversity in comes to senior executive roles, the workplace, including in the the legal sector, and ensuring it this isn’t the case. It is little wonder legal sector. is reflective of the society within then, that some law firms have which it operates, our world- reported gender pay gaps of over As part of the partnership, the renowned and trusted legal sector 60 per cent, and that there is also City Corporation is working which will continue to go from a ‘bonus’ gap which women are at with businesses, academics and strength-to-strength for the next the wrong end of. government stakeholders to century. identify barriers to workplace The Bar Council’s own data shows progression, explore how City firms that while there is an almost equal can increase the number of women Catherine McGuinness, Policy Chair split of male and female pupils who progress to senior roles, and at the City of London Corporation studying to be barristers, the Bar develop new academic research to struggles with retention of women be published later in the year. and their progression. This is reflected by the fact that, despite The Bar Council is running its own a small improvement in recent ‘next 100 years’ campaign to mark years, only 16 per cent of QCs were the centenary of women being allowed to practice law – aiming women as of December 2018. to generate discussion about the challenges women face, as well The barrister magazine This is not, of course, a problem as highlighting positive initiatives will not accept responsibility confined to the legal sector alone. to support women at the Bar. for information supplied The financial services sector and The Law Society and SRA also by other parties, views wider professional services sector have targeted action plans at an expressed may not – and business more generally – organisational level to address the necessarily be that of needs to do more to ensure women gender pay gap. the editor or publishers. get to the top by removing barriers and creating a truly level playing But it is not just gender diversity field. There is a clear business – as that we need to improve. While well as moral – case for improving we strive for more women in the diversity. sector, we must also work hard

06 the barrister Michaelmas term 2019 authorised-education-and- p.1 training-organisations,- We have introduced more flexibility, including-pupillage-providers/ so now it is for the AETO to decide who is suitable to be a pupil Existing providers of pupillage supervisor and to ensure that they have received (and continue to If your chambers or organisation is receive) appropriate training. We already approved by us to provide no longer require barristers to seek pupillage, and you want to continue approval from their Inn to be a to do so in the future, you must also pupil supervisor. AETOs will have meet the criteria for authorisation set to tell us, through our authorisation out in the Authorisation Framework pupillage funding rules here: https:// and supervision processes, how and apply to become an AETO. We www.barstandardsboard.org.uk/ they decide who should be a pupil will be in contact with you over the media/1998211/2019_08_pupillage_ supervisor and therefore how they course of 2019-20 about this process. funding.pdf maintain high standards in training There is no fee. This does not affect pupils. any pupils that you have already recruited, and you can continue to Using the Professional Statement to Requirements for training of pupil advertise for new pupils. If you have assess competence in pupillage supervisors any questions, please contact us at authorisations@barstandardsboard. You are required to assess pupils in All pupil supervisors must receive org.uk. line with the Threshold Standard appropriate training. Most training and Competences specified in for pupil supervisors is delivered the Professional Statement for all by the Inns and Circuits, but New minimum pupillage funding starting on or after 1 supervisor training is open to award September 2019. This is a change to other organisations too and can the current requirement to complete be delivered in-house by an AETO. Pupillages that commence on or after the pupillage checklists. For example, if you are a large 1 September 2019 must be funded in employer, you can train supervisors accordance with our new minimum If you have not yet implemented in a way that is more suited to your pupillage award. The minimum the Professional Statement, you organisation, provided you meet the award for chambers and BSB entities should now be adapting your outcomes we specify. Organisations is now set having regard to the pupillage training programme and that train pupil supervisors are not hourly rates recommended by the documentation. It is for AETOs to accredited by us, but we will be Living Wage Foundation and are now develop their own training plan and prescribing “outcomes” for pupil set at: records in place of the old checklists, supervisor training – in other words, to provide evidence to the BSB that providing a broad framework as to • £18,436 for 12-month pupillages pupils have met the competences, what the training should achieve. We in London successfully completed pupillage and are in the process of setting those • £15,728 for 12-month pupillages are eligible to apply to the BSB for outcomes and will publish them later outside London a Provisional Practising Certificate this autumn, with a timetable for and a Full Practising Certificate. We delivery. AETOs will have to ensure The minimum will be increased in will not be prescribing templates for that their supervisors’ training meets future with effect from 1 January training records. the outcomes that we will prescribe. each year, the first such increase being in January 2020. Increases We have been testing this new Refresher training will be mandatory will be announced in November requirement with a pilot group of for all pupil supervisors, and will each year following publication chambers and organisations from the be required every five years, or of the Living Wage Foundation’s employed Bar for the past two years after three years for someone who calculations for the year ahead. and developing guidance, which has not supervised any pupils in you can find in the Bar Qualification the intervening time. We expect to Minimum monthly payments to Manual on our website: https://www. publish a timetable in the autumn for pupils are still mandatory (i.e. barstandardsboard.org.uk/qualifying- achieving this. the total divided by 12). However, as-a-barrister/bar-training- flexibility is permitted to allow requirements/bar-qualification- You can find out more about upfront payments. In the practising manual-index/ changes to training, registration period, AETOs must continue to of supervisors and new flexible cover the difference between a If you have any questions about this, arrangements for supervising pupils pupil’s earnings and the minimum you can contact us at supervision@ at https://www.barstandardsboard. monthly amount. The purpose of barstandardsboard.org.uk org.uk/qualifying-as-a-barrister/ these rules is to ensure that pupils future-requirements/ at least receive a regular, minimum income throughout pupillage. Pupil Supervisors

At the end of last year, we contacted Changes in the rules for determining Oliver Hanmer, chambers that were at that time who can be a pupil supervisor The BSB’s Director paying pupils below those amounts. of Regulatory If we have not spoken to you and Our rules were very prescriptive Assurance you want to discuss this with us, you about who could be a pupil can contact us at authorisations@ supervisor. We no longer prescribe barstandardsboard.org.uk the eligibility criteria for pupil supervisors except that a pupil You can read more about the supervisor must normally be a practising barrister.

the barrister Michaelmas term 2019 07 The first ever Dean of an Inn of Court speaks to The Barrister about the need for lifelong learning at the Bar

rofessor Cheryl Thomas of practice. But the vast majority to ensure that the profession is QC has been appointed of Inn members are established equipped to meet the demands of the the first Dean of an Inn of barristers at more advanced stages future. Court in 700 years. She is in their careers, and many of these the country’s leading expert members will no longer see their Inn Understanding barristers’ working Pon courts, judges and juries, and as relevant to their current practice lives is based at UCL’s Faculty of Laws, in the same way they did when they where she holds the first ever Chair were starting out. To do this the first thing we need in Judicial Studies in the UK at UCL to do at is to better and is also Director of the UCL Jury Education and training at the Inn understand what the working lives Project and UCL Judicial Institute. should be made available in every of established barrister members Here she outlines for The Barrister phase of a barrister’s career, in are like today and how the Inn what this unprecedented role will order to build knowledge, develop can better meet their needs. This entail. advocacy expertise and support the includes the employed as well as presentation of the profession to the self-employed bar and those I was absolutely delighted and the public. So as Dean, one of my on circuit out of London as well as honoured to be appointed Dean of main priorities will be to help Inner London-based practitioners. In Education at the Honourable Society Temple develop new, bespoke and January 2020, the Inn will take a of the Inner Temple earlier this year. innovative programmes to attract major step towards achieving this The decision to appoint a Dean for more experienced barristers back objective when we launch the first the first time in the ’s to the Inn. The aim is to create a ever Established Barrister Survey. almost 700-year history reflects more modern and progressive role This will help us better understand Inner Temple’s forward-looking for Inner Temple as a professional the needs of Inner Temple members approach to life at the Bar in the body for all its barristers and to who are now established in practice 21st century and its determination ensure that the inn provides ever beyond the new practitioner stage. to drive innovation in professional more useful training to members And in turn this will provide the development at the Bar. throughout their career, helping information the Inn needs to develop In my role as Dean I will advise and assist the Inner Temple in developing a bespoke programme for its established barristers and in increasing the Inn’s engagement with the public and academia. As Dean I have four main objectives: (1) developing a lifelong learning programme for established barristers; (2) improving public understanding of the role of barristers and the Inn; (3) deepening the Inn’s connections with academic experts; and (4) assisting with the implementation of major changes in the education and training of new barristers. During my tenure as Dean of Inner Temple, I will continue in my post at UCL, dividing my time evenly between the two institutions.

New programme for established barristers One of my first projects as Dean will be to create a lifelong learning programme for the Inn’s established barristers. For most members of an Inn of Court, their Inn played an important role in their professional development as barristers at the start of their career, and at Inner Temple there is an outstanding and extensive programme of education and training for students, pupils and new practitioners in their first 3 years

08 the barrister Michaelmas term 2019 programmes to bring the best out of affecting end of life decisions to has focused on law in practice, every barrister and create a cadre of forensic science and the intricacies of and my research is deeply rooted high-performing barristers who will Article 50. This knowledge can be of in understanding how the law raise standards at all levels of the great benefit to members of the Bar, works and how to make the law profession. who need to stay ahead of the curve work better to deliver justice to all I am fortunate to already have and incorporate the latest ideas and members of society. My work on experience running such a survey thinking from research into their jury decision-making in the criminal for experienced legal professionals. legal work. My appointment as Dean courts has often tackled sensitive Since 2014 I have been responsible provides an opportunity to exchange and controversial issues about juries for the UK Judicial Attitude Survey, knowledge and practice in law for the first time in this country and which I conduct regularly on behalf between the bar and academia for it has led to the development of of the judiciaries of England and the benefit of wider society. innovative educational tools for the Wales, Scotland and Northern Ireland public to use in courts. I also have a so that they can better understand My aim is to strengthen the Inn’s background in film and documentary the working lives and needs of judges relationships with research leaders making and this could come in in the courts and tribunals across across the UK to the benefit of all helpful in trying to explain the often the UK. I have also been involved members of the Inn including those mysterious world of the Bar to the for many years in the training and on circuit outside of London and at wider public it serves. education of judges and lawyers in the employed bar. The partnership the UK and abroad. between Inner Temple and UCL will As a of Inner Temple since also help facilitate the introduction 2012, I have a strong understanding of new learning technologies for the of the existing work of Inner Temple, Forging stronger links with the Inn’s education and training activities the Bar and the Inns of Court. I’ve public and academia and the Inn’s implementation been fortunate to have worked of new training and assessment closely already with Inner Temple As Dean I will also be helping the Inn requirements introduced by the Bar for many years as a member of the to forge stronger links between the Standards Board. Education and Training Committee Bar and academia and to raise wider and most recently to have helped public awareness of the crucial role Alongside this work with the with a major redevelopment of the Bar plays in ensuring the rule of research and academic community, Inner Temple’s ethics training for law. I will also be developing a public new practitioners. My appointment education project designed to reflects Inner Temple’s progressive The UK research community is better engage the public with what approach and commitment to being a home to some of the world’s leading barristers do, what an Inn of Court leader in life-long learning at the Bar. thinkers in many different areas, does and how crucial work at the from the neuroscience of memory to Bar is to the rule of law. This is Professor Cheryl Thomas QC: how artificial intelligence may affect an area that overlaps directly with [email protected] the work of lawyers, from cutting my own research and professional edge developments in medicine background. My academic career

the barrister Michaelmas term 2019 09 We need to better equip the next generation for the legal sector of the future

r Andrew James, Professor of Innovation Management & Policy at Alliance Manchester Business School and academic lead for Dthe Manchester Law & Technology Initiative, argues it’s vital act of technology in the legal sector and equip graduates with the skills they need to navigate the sector both now and in the future.

Like many other industries, the legal sector is changing. We are no stranger to this concept, particularly as technological advancements progress rapidly and impact organisations of all sizes – both in terms of the way they operate and the challenges they have navigate.

While legal services firms have been slower to adopt new technologies than their financial counterparts, for example, we have seen a rapid in these firms is paramount - that’s the academic world, firms, researchers increase in the awareness of how why the Legal & Technology Initiative and students can fully understand the important technology is to the was set up and it will help to address bigger picture and recognise what skills profession. The legal industry has three main issues. are missing and how they fit into this long been accused of failing to adapt landscape. to the changing marketplace but in today’s digital age, we are starting to Recognising the need for new skills “And collaboration is key to achieving see increased recognition of the role this. The bar is the ultimate referral technology has to play. With the fully Traditionally, we have seen people profession - barristers receive work digital divorce application launched to in the legal profession - and across a from solicitors at varying stages the public in May this year and news variety of industries - operate in silos. within the life span of a case. If the of the Law Society launching a lawtech Today it’s important for us to have client is tech literate and solicitors are incubator in 2018 – an initiative access to lawyers who are technically adopting tech to enhance their service, designed to make it easier for law literate, and to software engineers a barrister who sits in the middle of firms to support legal tech providers who understand the legal landscape. the supply chain being out of touch - we are seeing evidence of the sector And while the legal firms we work from a technological perspective will embracing technology to improve with tell us that the sector can be a significantly hinder progress and processes. guarded one, pooling resources can impact on client delivery. Collaboration help to break down these barriers, is critical in avoiding this and in Alliance Manchester Business enable universities and businesses to understanding what skills we need School (AMBS), the School of Law understand where the gaps are and to better enhance our offering, both and the School of Computer Science foster the skills that the sector lacks. within the supply chain and to our at the University of Manchester Chris Ronan, CEO of St John’s client base.” came together last year to launch Buildings Barristers’ Chambers and the Manchester Law & Technology one of the partners in the Initiative, Initiative, the first industry-academic argues that we not only need to Shifting mindsets research collaboration of its type in acknowledge the skills the sector is the UK. The Initiative brings together missing but also understand exactly As well as acknowledging the new legal services firms with academics what those skills are and how they fit skills requirement, facilitating the to develop research and teaching in across the whole supply chain: “Not adoption of new technologies among centered on innovation and the only is there a skills gap but there’s professionals is also a challenge, application of new technologies in the a huge knowledge gap in terms of which the Initiative strives to legal services sector. what’s actually going on in the legal address. Understanding how to deal profession. Until recently, there were with the behaviours within a firm Given the pace of change over the only two law schools that included that might impede the adoption of last 12 months in particular, the next technology as part of their training new technologies is the first step in five years will be key when it comes and electives. There’s so much being challenging them - and finding ways to to adopting these new technologies. done around AI products, yet student best communicate the benefit of these Forbes reported that 2018 set a record bodies aren’t aware of who’s doing technological tools. 713 per cent growth in investment in what and exactly what innovations legal tech startups. Ensuring the next are taking place. By having a more Intapp, the industry cloud for generation is equipped to take up roles integrated approach with industry and professional and financial services,

10 the barrister Michaelmas term 2019 conducted a survey last year that efficiencies, an important part of But ultimately, the initiative is showed 46 per cent of UK lawyers felt the Initiative involves working on in place to enhance the student that the technology they use every day and adapting the new technologies experience and provide the industry We need to better equip the next doesn’t fully meet their needs. With themselves. The Manchester Legal & with workplace-ready graduates. outdated technology systems in place, Technology Initiative is a collaboration We must engage with firms to equip generation for the legal sector of the future it’s unsurprising to see how attitudes between industry and academia. We’re future legal professionals with both towards technology are hostile. drawing on expertise from across academic and industry expertise so the University to develop areas such they can develop the skill sets that Julia Kingston-Davies, Group Chief as machine learning, AI and data make them competitive in the labour Operating Officer at The Jackson Lees analytics – all of which are hugely market. Group, said: “The legal industry is important if we are to propel the legal confronted with a huge challenge when industry forwards. it comes to implementing change, but Dr Andrew James we’ve seen a significant cultural shift in Stuart Whittle, Director of Innovation Role: Senior Lecturer the last few years. Today, firms like us and Business Services at law firm Email: andrew.james@manchester. are recognising that the way people do Weightmans, said: “We are proud of ac.uk things needs to change to adapt to our the developments we have made in tech-literate clients and surroundings. the innovation sphere, creating an Biography In the past, lawyers were trained in artificial intelligence system capable of Andrew James is a Senior Lecturer a very traditional way, meaning their legal reasoning, a chat bot for internal in Science and Technology Policy thinking could be very regimented communication and creating a number and Management and a member too. But it’s about bringing people of intuitive applications designed to of the Manchester Institute of on the journey with you, rather than make our work quicker and more cost Innovation and Research at MBS. imposing change. In this respect, the effective. His research and teaching interests collaboration with Alliance Manchester focus on corporate technology Business School and other firms in the “This work would be impossible strategy, innovation management industry will help to change the way without collaboration with digital and science and technology policy, we consider technology – making it specialists, underpinned by academic as well as business strategy. He a part of the process as opposed to a precision – our innovation strategy is has engaged in research and standalone concept – something we will grounded in academic theory, which consultancy with companies from a be able to cascade to the industry at is why it is so important for us to diverse range of sectors including large.” continue to invest in initiatives such chemicals, industrial electronics as the Manchester Law & Technology and pharmaceuticals but his Alliance. This blend of expertise and particular focus is on the industrial Creating technology insight has enabled us to deliver new and technological dynamics of the hat’s fit-for-purpose ways of working which will not just defence, security and aerospace equip us for the future of legal services sectors. With some legal professionals finding but allow us to shape it.” current tech processes too complex and hindering rather than boosting

the barrister Michaelmas term 2019 11 The Law is now an App Michele Smith looks at how products are integrating to provide a modern one-stop service for chambers and barristers.

“It streamlines case creating, cutting out duplications by linking case IDs and other relevant data that exists in “Rumpole, you must LEX to create intelligent HyperLaw move with the times.” cases. Working with HyperLaw brings “If I don’t like the way together what have been separate functions and is leading to more the times are moving, innovative working practices in I shall refuse to chambers.” accompany them.” Desk bound working is no longer the way. All aspects of chambers and John Mortimer, The Anti-Social barristers need to be mobile. Clerks Behaviour of Horace Rumpole and barristers need to be able to work on the move anywhere in the world. Software should no longer be tied to specific equipment but cloud based. he words of one of the most with the bathwater and lose decades What people need is to be able to use famous fictional barristers. of expertise and experience, while a laptop or tablet, have an internet But how would Horace embracing new technology to ever connection and away they go. Rumpole’s philosophy and sharpen the delivery. A smart way Paper bundles, endless files and piles resistance to change fare for of working still values and utilises of documents are condemned to the Thim if he was working in chambers the heart of the legal system. It will past through technical integrations today? So how is technology, build on this by engaging with and and collaboration that are integral integration and partnership working endorsing new and innovative methods to this transformation. Cloud based taking the profession in new directions, of providing the service effectively and storage allows the ability to create a even into a new world? efficiently. It will be at the cutting edge centralised database for documents of technology whilst still maintaining which everyone can access. The British legal profession, by its the traditions that are trusted and nature, is a bastion of traditionalism. respected around the world as we “In short this new partnership For centuries its culture has been the move further into the 21st Century. working means better outcomes, faster model followed across the globe. Its responses and greater fee earning methods and formulas are tried and Two market leaders in legal software capacity”, said Mike Washburn, tested and have rarely failed. But have taken the next step and are Managing Director of HyperLaw. today we are entering, if not already working in partnership to provide a “There is also a reduction in document entered, a new era, not just in the better and integrated future alongside print and storage costs and reduced legal profession, but across all global improved collaboration between clerks GDPR risk. markets, led by fast paced, ever and barristers. HyperLaw helps evolving technology. barristers to take care of case review “We recognise the need to be a part of a new era which will take and presentation and Bar Squared’s barristers into the future through Although we are aware of this there LEX focusses on ensuring the efficient can be a reluctance within the faster case building and great review operation of chambers with features and presentation tools and the profession to embrace innovation and such as diary management, automated step outside of the comfort zone, which ability to work away from the office. billing, marketing and document By integrating with LEX Chambers leads to an increasing risk of being left storage. behind. Now is the time for the legal Management, we are significantly profession to adapt and keep up to enhancing the case workflow between The LEX and HyperLaw integration chambers and barristers to create an speed with technology and innovation, has connected the workflow of the and once ahead, to stay ahead. effective and paperless working process barristers and clerks. Bar Squared that delivers high quality results from has been at the forefront of chambers beginning to end.” Some lawyers still believe that if it isn’t management for more than 13 years broken it doesn’t need fixing. The issue and has always pushed the boundaries. is that just because something has So back to Rumpole. He would find it HyperLaw is taking case review and very difficult to cope with the modern, worked in the past doesn’t mean that it presentation to a new level. Two will continue to be relevant in today’s legal world. So, with the greatest ever evolving legal environment. It cutting edge companies now working respect Horace Rumpole QC needs to is vital to acknowledge and adopt together to provide a seamless, be put back on the bookshelf whilst his significant changes and developing paperless, streamlined future that is modern, real life, counterparts charge trends across the profession. transforming the way that chambers their devices, and do the whole job, work providing chambers with end-to- start to finish, anytime and anywhere. Chambers that don’t adapt risk being end clerk-to-barrister work flow. left behind and once that happens it LEX Chambers Management software is not easy to catch up with the front So why is this the way forward? is now installed in more than 240 runners. Helen Ford, Managing Director of Bar chambers worldwide and used by Squared explained: “We understand over 70 per cent of the UK market. Millennial professionals are now the need to be at the forefront of HyperLaw provides barristers with coming up fast on the outside, having technology to ensure that we are best-in-class technology to build, used electronic devices all their lives offering the best possible solutions and review and share a case. they are up to speed with every new service to our clients. LEX software development in both hardware and has always been ahead of the game, If you would like more information software. introducing invoicing into chambers, about LEX and HyperLaw contact LEX offering the first mobile application and at [email protected] or visit www. The challenge is to integrate the old recently integrating with Xero for MTD barsquared.com. To contact HyperLaw and the new. To not throw the baby out for VAT. email [email protected] or visit www.hyperlaw.co.uk

12 the barrister Michaelmas term 2019 the barrister Michaelmas term 2019 13 Foreign investors who own Spanish properties through corporate structures must pay attention to tightened tax regulations By León Fernando Del Canto, barrister and cross-border tax specialist practising from Normanton Chambers

he Office of National Statistics Previously, a summary of the due has found that over one diligence process (often provided by million individuals who reside unqualified professionals in Spain) in the UK own property would have sufficed to placate the abroad. Spain is a particularly solicitors and tax advisors in the Tpopular destination to have bought UK. Often, they would have failed to property in recent decades, with conduct a thorough assessment of over 5,000 estates owned by foreign the Anglo-Spanish tax regulations investors – the majority of whom are or legal due diligence because the UK residents – who have been drawn tax authorities were uninterested in to areas such as Ibiza, Tenerife and foreign investors. Marbella. However, the situation has changed Investors have targeted estates worth and, in addition to tax, there are new in the millions, and very few have regulations affecting large states which taken international tax advice to set must be considered, such as the tourist up a corporate structure through accommodation rules or employment As such, tax inspectors can search which to purchase them, or else buy laws. the name or registration number of a shares in a company that owns the taxpayer. The UBO must be named, and property already. The majority of the As UK professionals, we have a should he or she not be identified, the advice provided was solely focused legal responsibility to ensure these company director will be liable for any on the acquisition or transfer itself, properties are tax compliant both in wrongdoing, and could face charges in with very little attention given to the Spain and the UK, so that our clients Spain. Since the registry became law a don’t face potentially crippling fines for tax, compliance and costs associated year ago, over 120,000 shell companies failing to comply. with owning property with a corporate have been identified, most of which structure on a day-to-day basis. simply hold assets in Spain. One As it stands, it is only a matter of doesn’t have to look far to realise that time until Spanish properties that these are used as investment vehicles, Most of these properties are owned are owned by international corporate using double or triple international roughly 10% of which will be property- structures are investigated by the owning companies. corporate structures which involve a authorities, if the company was created Spanish company, a foreign special before 2018 and hasn’t been assessed Tax inspections purpose vehicle and, in many cases, recently. either a discretionary or bare trust. Most non-Spanish residents will end Such arrangements usually involve The ultimate beneficial owner registry countries that don’t have a double up paying taxes on their properties, taxation convention with Spain or whether owned in their name or via The Spanish tax authorities began a corporate structure. Carrying out a territories included in the outdated clamping down on these structures tax compliance assessment to identify Spanish tax haven list, including in the 1990s, when the Spanish risks is especially important if the Jersey, Guernsey, or the British Virgin government issued the Real Decreto structure was set up without doing so Isles for example. 1080/1991, listing many of the tax (particularly relevant if an offshore havens that were used to acquire company is involved). Foreign investors under these properties, which were heavily Spanish spotlight penalised as a result; fast forward a Somewhat unsurprisingly, wealthy few years and the non-resident income foreign investors have become an easy While holding Spanish properties via tax laws changed to make these target for the Spanish tax authorities, international company structures has properties owned by foreign investors as they are largely unaware of the new been relatively hassle-free until some taxable. regulations and associated pitfalls of years ago, the tide has been turning not complying. However, those showing with more and more cases surfacing. Spain’s tax plan for 2019 focusses on that they are doing their best to be international investors using opaque Spanish tax authorities have turned compliant will fare much better with structures and has a new weapon at the authorities upon investigation, so their attention to these estates and its disposal in the form of an ultimate have begun looking into whether taking action to avoid attracting the beneficial owner (UBO) registry, attention of the authorities is highly the owners are abiding by the anti- which is currently being rolled out in recommended. avoidance rules and regulations that all EU member states. This registry have been put in place to clamp down law, which was created a year ago León Fernando Del Canto is a barrister on potentially fraudulent activity. It has following the EU Directives 2018/848 and a cross-border tax specialist now become apparent that in many and 2018/849, means any Spanish practising from Normanton Chambers instances, this structure has been used company must disclose the beneficial at 218 Strand. He is a member of The illegally to evade capital gains tax, VAT, owner each year when doing the Worshipful Company of Tax Advisers corporation tax return, providing stamp duty and other forms of tax – in London and the Madrid Bar. He can details of all shareholders who own at be contacted by email at: fernando@ exploiting the country’s inefficient tax least 25% of the share capital. laws. delcantochambers.com.

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the barrister Michaelmas term 2019 15 Diversity at the Bar Dr Miranda Brawn, shares her views on diversity at the bar. She also explains how her hugely successful education, career and diversity charity, The Miranda Brawn Diversity Leadership Foundation is helping to empower the next generation of leaders across all diversity strands and sectors including law and at the Bar in the UK.

2019 not only marks the 125th anniversary of • the gender and ethnic diversity of pupil barristers is the Bar Council, but also 100 years since the Sex roughly in line with the population of England and Disqualification Removal Act. This is an Act which Wales, with 50.4 per cent of pupils being female and paved the way for women to become lawyers 16.3 per cent being BAME. for the first time. It is thanks to this Act, that today, there is a ratio of 50:50 male and female • The data suggests that a disproportionate number solicitors, a statistic which the City hopes to of barristers attended a UK independent secondary bolster through supporting initiatives such as the school between the ages of 11-18. The proportion Miranda Brawn Diversity Leadership Foundation. of barristers who went to independent schools is The Foundation covers all diversity strands higher than in the wider population; with 15.5 per and sectors. It has teamed up with numerous cent (including non-respondents) having primarily organisations to provide for example Hogan attended an independent school between 11-18, Lovells Law Scholarships and work experience at compared to approximately 7 per cent of school various law firms and law chambers. children in England at any age, and 10.0 per cent of UK domiciled young full-time first degree entrants in the UK in 2016/17. Of those that provided information on school attended, around 33 per cent The Lord Mayor of London, Mr Peter Estlin, has recently attended an independent school in the UK. called for the UK’s legal sector ‘to move into the 21st century’ by increasing diversity and equality as part of a The BSB has a statutory responsibility to monitor and major speech at the annual Judges’ Dinner to be held at promote equality and diversity both as an employer and Mansion House, in 2019. The Bar Standards Board (BSB) as the regulator of barristers in England and Wales. has published its annual report on diversity at the Bar on The more accessible the Bar is, the better it is able to 1st February 2019. The report shows that progress was represent the society it serves. Equality and diversity made in 2018 with regard to both diversity at the Bar and should be priorities. The data shows that there was a to the disclosure rates of barristers providing data. While steady improvement in gender and ethnic diversity at the diversity of barristers is improving, the report shows the Bar. However, the upper levels of the legal profession that more needs to be done to improve diversity within the appear to be dominated by white, British males. During profession. 2018 however, more work is required to achieve our end goal. Some of the key findings include: Diversity within the judiciary is fundamental to a • at 62.0 per cent, men still outnumber women at 37.4 truly democratic and legitimate legal system. It plays per cent at the practising Bar. The percentage of a quintessential part in enabling the enforcement of women at the Bar overall increased by 0.4 per cent key acts, preventing discrimination and infringements during the last year; of the rights of the nation’s citizens. Only where there is diversity within a body that arbitrate in matters of • the percentage of Black and Minority Ethnic (BAME) considerable import will UK society find that its blend practising barristers has increased by 0.3 per cent of cultures, genders and religions are reasonably and compared to December 2017. 13 per cent of the respectfully protected and promoted by the law. practising Bar is now BAME; There are many benefits to be derived from much greater • male QCs still outnumber female QCs, but the judicial diversity. It affords equal opportunities for all percentage of female QCs increased from 14.8 per aspirational individuals harbouring ambitions within cent in December 2017 to 15.8 per cent in December the field of law. It also lends weight and credibility to the 2018. The poor pipeline of female employment silk decisions and outcomes of judicial reviews. A judiciary applications is not due to shyness or lack of ability; it comprised of a broader range of backgrounds and is structural, and based on retention and opportunity. experiences will create an improved form of judging. This places responsibility on law firms for their The issue of judicial diversity has attracted increased instructions, and chambers for their work allocation. political attention over the past two decades and various panels have found that there is a strong case for judicial • The percentage of BAME QCs has increased by 0.6 per diversity. It reached the view that there should “be cent year on year with 7.8% being BAME and 87.9% equality of opportunity for those eligible to apply” and being white; and “in a democratic society the judiciary should reflect the

16 the barrister Michaelmas term 2019 diversity of society and the legal scholarships and a diversity lecture is studying law at the University of profession as a whole.” Judges which made UK history in 2016 Kent and has aspirations to be a drawn from a wide range of societal for being the first of its kind. This Judge. We have arranged for them to starting points would bring varying was hosted by my law school, The have mentors who are a commercial perspectives to bear on critical legal University of Law, and they have lawyer at a top city law firm and issues. It stated that a judiciary which supported my work from since the a criminal Queen’s Counsel at a more closely mirrors the everyday very beginning. top chambers in London. This has world of the people will doubtless provided the scholarship winner with inspire more public confidence. My main argument for diversity and the variety of knowledge in order for equality was that it was a necessity them to make informed decisions From my personal perspective, with a strong business case to help about their career including work diversity has improved over the years increase company profits while experience at an award winning especially in comparison to when I providing the extremely important chambers focused on diversity in had first entered the City of London morale and fairness factor. That said, London. in the 1990s. However, we need to we have to also change the culture of focus on the speed in order to help organisations that promote diversity We have helped to move the dialogue increase the numbers for gender, by making them more inclusive in from gender to ethnic minorities race and other strands such as social order to keep talented women and and now we focus on all strands of mobility, age, LGBTQ+, disability and minorities. Diversity training is going diversity. There is still time to apply so on. It was while I was speaking to be key in order for this to work. for our law scholarships as the at a gender diversity event in UK deadline date has been extended until Parliament that I had decided to The Miranda Brawn Diversity the last day of September 2019. We focus on a different approach to help Leadership Foundation have now welcome supporters to join us to help make a change. Thus, I came up helped to impact approximately us diversify the Bar and other areas with the Miranda Brawn Diversity 50,000 young people with 40 within law. Leadership Foundation – with the scholarships being awarded this initial goal to have more ethnic year. The Foundation have helped Dr Miranda Brawn Biography minorities across the UK workforce our next generation of leaders across Born and raised in London, Dr including at the Bar at senior levels. the UK workforce, including the Miranda Brawn has spent more than This has broadened out to include City of London, to succeed at their 20 years working in finance and law all forms of diversity strands now. education and career choices while within the City of London, starting at When I had launched the Foundation helping to close the diversity gap. the tender age of 18 years old. She in January 2016, it was initially to Our work includes the diversity worked her way up the career ladder help raise the awareness of and act leadership scholarships (funding, in an unconventional way from an upon the racial diversity gap via work experience and mentoring), operations analyst to front office one self-funded scholarship. I was mentoring programmes, educational sales trader and now senior banking receiving thousands of emails from diversity lectures, networking lawyer after being Called to the Bar of young people asking for mentoring opportunities (including Inner England and Wales. She has blazed a advice and work experience. This Temple Annual Garden Party). Our trail in the process to inspire our next led me to have the idea to launch scholarship winners have also met generation of leaders to follow their a diversity lecture to help educate, HRH Prince Charles of Wales, HRH own path to success. give information and empower our Countess Sophie of Wessex and Rt next generation too. There were lots Hon John Bercow MP alongside other Further information about Dr of events and support for diverse top leaders, plus assistance with Miranda Brawn and The Miranda employees once they had entered the education and work opportunities. Brawn Diversity Leadership workforce but not enough for those Foundation can be located viahttp:// who were still at school, college and/ An example is last year’s social mirandabrawn.com and http:// or university. Hence, the Foundation mobility scholarship winner who mbdiversityleadership.com. was born from my idea of innovative

the barrister Michaelmas term 2019 17 Employee social media posts: in what circumstances may an employer be liable under the Equality Act 2010? By Katie Spearman, Assistant Practice Development Lawyer, LLP

The prevalence of social media at work continues to grow, along with people’s appetite to share their personal views and activities online. Within such a landscape, when will an employee’s social media posts be sufficiently connected to their employment to attribute liability for any wrongdoing to their employer?

The recent Employment Appeal Tribunal (EAT) case of Forbes v LHR Airport Limited considered this issue and found on the facts that the employer was not liable under the Equality Act 2010 for the racially offensive image and caption posted by an employee on their private Facebook page.

The facts the thing has been done with the or their business; employer’s approval. The employer • was shared with a list of friends In this case an employee (A) shared may have a defence if it can show which largely excluded work an offensive image of a golliwog along that they took all reasonable steps colleagues and which importantly with a caption: ‘Let’s see how far he to prevent the employee from acting didn’t include Mr Forbes. can travel before Facebook takes him unlawfully e.g. by implementing off’ on their private Facebook page. A effective policies and training (and The EAT also noted that: fellow work colleague (B) was amongst ensuring workers are aware of them); A’s Facebook friends and B later and dealing effectively with employee • the fact that the employer treated showed the image to another colleague complaints. the act of sharing the image on at work – Mr Forbes. Mr Forbes was Facebook as a disciplinary matter “shocked” and “appalled” by the image The decision did not necessarily mean that it and complained to his employer, LHR had been done within the course of Airport Limited that racist images were In this case, the EAT held that the employment; and being circulated in the workplace. posting of the image was not done • there could potentially be within the course of A’s employment situations where the sharing of an Mr Forbes later raised a grievance and and therefore the employer was not image on a Facebook page could following a disciplinary investigation, liable. be deemed to fall within the course A was given a final written warning of an employee’s employment, and apologised for her actions. Mr The EAT emphasised the fact sensitive such as where the page is used for Forbes was then posted to work with A nature of vicarious liability cases and raising work-related matters, or and he raised a complaint about this. stated that laying down set guidance where an employee’s work activity Mr Forbes was thereafter relocated of when liability would be attributed to is partly conducted online at home. without explanation and the following the employer in cases involving social day was signed off sick. Shortly media was not appropriate: before his return from sick leave Mr The EAT recognised that social media Forbes raised claims of harassment, “Just as is the case with the physical adds a further complexity to the victimisation and discrimination work environment, whether something already difficult task of determining against LHR Airport Limited under the is done in the course of employment whether an employee is acting within Equality Act 2010. when done in the virtual landscape will the course of their employment for be a question of fact for the Tribunal vicarious liability purposes under the Vicarious liability in each case having regard to all the Equality Act 2010. Despite no concrete circumstances. No clear boundary as principles being laid down by the court, Employers can be liable for the to when such conduct will be in the this decision provides some useful actions of their employees, known as course of employment can be defined” indicators which may come into play ‘vicarious liability’. Under the Equality when deciding which side of the line Act 2010, in respect of discriminatory However, key factors which the EAT liability may fall. It also confirms that acts such liability will be imposed took into consideration in reaching its a tangible link must exist between the if the employee’s act is done ‘in the decision included that the post: employee’s social media activity and course of their employment’. Whether the workplace and/or their colleagues. or not there is a sufficient connection • had been made outside of work between the discriminatory act and and neither the employer’s Katie Spearman, Assistant Practice the employee’s employment is very fact equipment nor network was used; Development Lawyer, Brodies LLP dependent. • was on a private non-work-related +44 (0)1224 392548 Facebook page; [email protected] It does not matter whether or not • made no reference to the employer

18 the barrister Michaelmas term 2019 Employee social media posts: in what circumstances may an employer be liable under the Equality Act 2010? By Katie Spearman, Assistant Practice Development Lawyer, Brodies LLP

the barrister Michaelmas term 2019 19 Giving Chartered Legal Executives equality of opportunity is vital to ensuring a diverse, competitive and dynamic legal market By Matthew Foster, President of the Chartered Institute of Legal Executives

was brought up on a council legal documents or international a whole: estate in Stockport and left recognition under the EU Lawyer school at 16 with little idea of Recognition Directive, there continue Clearing out technical anomalies what to do next. Without the to be barriers that need to be broken education and support I have down for the benefit of consumers Chartered Legal Executives can do Ihad from the Chartered Institute of and to create a profession that is anything solicitors can do when Legal Executives (CILEx), I would fully representative of society. employed by solicitors’ firms or never have been able to become a local authorities, but still cannot as lawyer. individual professionals. Advocacy Growing recognition rights are often granted by courts My story is not unusual. CILEx offers after application but technically an alternative route into the legal For many years CILEx has been require significant additional effort profession that proves attractive chipping away at rules that to be awarded. Powers of Attorney to those from a range of different unjustifiably discriminate against can be created, but not proved by backgrounds, allowing them to study our members. There has been a certified copy. whilst working, accommodating great deal of success – we achieved career gaps, different educational chartered status in 2012 and our Sorting these out doesn’t change backgrounds and offering a more members include business owners, current practice in any way but financially viable path into the law. partners in law firms, heads of either fixes a technicality or resolves department and supervisors of teams an anomaly to confirm and confer CILEx opens up access to the of lawyers. They can be authority as of right rather than profession to those who might in open court and may be appointed through supplication. otherwise have felt a career in law coroners and judges. was not an option for them and this explains why the membership is so This year Elizabeth Johnson became Change the law diverse. 75% are women, 14% are CILEx’s first female member of the from a BAME background, 81.5% judiciary when she was appointed as We want to see a change to laws of members do not have parents a Judge of the First-tier Tribunal in that preclude Chartered Legal who went to university and just 6% January. She was closely followed by Executives from the provision of attended a private school. Chloe Hubbert whose appointment certain services. They have a key role to Deputy District Judge was to play in making justice accessible Chartered Legal Executives have a announced in April. There are now but are unreasonably precluded from vital part to play in ensuring we have four Chartered Legal Executives providing certain services. As an a diverse, competitive and dynamic sitting as judges, as well as a number example, members who have been legal market that serves both the of solicitors who initially qualified as Associate Prosecutors for a long public and business. Chartered Legal Executives. time are barred from progression in their careers to Crown Prosecutors, In my year as president I want Amongst some in the legal and all because of a complete lack of to see CILEx lobbying even more profession, the perception of clarity and an inconsistent approach vociferously to change to out-of-date Chartered Legal Executives remains to recognising their qualifications legislative anomalies that needlessly out of step with the reality but there in legislation that has remained prevent our members being able are many progressive firms out unchanged for decades. to act in the same way as other there who no longer differentiate lawyers, effectively denying equality between solicitors and Chartered This is both impractical and in of opportunity within the legal Legal Executives and value the discord with the recognised status profession. Competition requires a different experiences, perspectives of Chartered Legal Executives under level playing field, and so we are and specialisms our members bring. the . The committed to working in the public As far as their clients are concerned Ministry of Justice acknowledges that interest to remove any outdated they are being supported by an this needs to be rectified but have so restrictions that unjustly prevent outstanding lawyer: the public do far failed to act. Chartered Legal Executives from not recognise any difference, so why offering a full range of services to should we maintain this fiction? consumers. Opening up the judiciary There are four areas in which we can Whether it’s the ability to apply work together across the profession Currently, Chartered Legal Executives for higher judicial posts, the to achieve a level playing field that are prevented from applying for ability to sign or certify certain will benefit consumers and society as judicial roles above district judge

20 the barrister Michaelmas term 2019 level (circuit judge or higher). Outdated views and professional snobbery are preventing the Government from making a quick and easy change to the eligibility criteria for lawyers who can submit applications, to include Chartered Legal Executives at every level.

Despite concerns about diversity in the judiciary, failure to include our members means excluding the most diverse group of lawyers in the country from consideration for senior judicial roles. Educated to International recognition areas, doing the same jobs day the same standard, doing the same Despite the significant lobbying of in day out. We are not the same job, and otherwise having all of the as solicitors. We are proud to be same opportunities as their successive governments, unlike other lawyers, Chartered Legal Executives different. Our learning begins in counterparts, Chartered Legal the workplace from day one, we Executives are being blocked. are unrecognised in the EU Lawyer Recognition Directive. This generally specialise early on in our careers and undertake qualifications It is ten years since Chartered Legal unreasonably restricts their ability to offer services to other EU countries. that focus on what we need to know Executives first became eligible for to support our clients, rather than on junior judicial roles, yet two-thirds of This discrepancy is outdated and knowledge that we may never use. the appointment rounds run by the These differences are a positive in a Judicial Appointments Commission CILEx is asking that Chartered Legal Executives be properly recognised as diverse and competitive legal market have been for roles for which they and should not hold Chartered Legal are not eligible. lawyers alongside their solicitor and barrister counterparts in any post- Executives back from being able Brexit trade agreement with the EU, to provide legal services across the If Government means what it says mirroring domestic parity. board. when talking about a representative judiciary, it ought to give Chartered CILEx lawyers operate on a par Matthew Foster is President of Legal Executives the opportunity to with solicitors in their specialist the Chartered Institute of Legal be considered alongside everyone Executives else.

the barrister Michaelmas term 2019 21 The SFO’s Use of Informants: A Bright but Unclear Future By Maria Cronin, Partner and Craig Hogg, Associate, at Peters & Peters Solicitors LLP

n April, Lisa Osofsky, Director of the Serious Fraud Office (SFO), announced plans to introduce a US-style informant scheme in the UK, sparking fervent debate over Ithe use of undercover sources in white- collar crime investigations. Although Osofsky has since downplayed the proposals, informants could help the agency to overcome intensifying pressure to increase its success rate and speed up its investigations. However, questions remain about the practical, and cultural, viability of such a scheme in the UK context. the target of a covert operation, section 71 of the Serious Organised US style informants or those that the CHIS receives Crime and Police Act 2005 (SOCPA). information from, to be unaware of the Under s.71, the SFO has a power to On 26 April 2019, in comments relationship that the CHIS has with the offer an individual immunity from reportedly made to the London law enforcement agency concerned. prosecution by issuing a written Evening Standard newspaper, Osofsky This is exactly the type of wire-wearing immunity notice, a provision that the outlined her desire for the SFO to work informant envisaged by Osofsky. SFO would presumably seek to use to with potential offenders to uncover facilitate an informant scheme in the corporate crime. Through co-operation, Pursuant to s.29 and Schedule 1 UK. Unhelpfully for the SFO, s.71 gives potential offenders would be presented of RIPA, a CHIS may operate on rise to a number of practical issues all with a blunt ultimatum: “spend 20 behalf of a so-called “designated of its own. years in jail … or wear a wire and authority”, which includes the SFO, work with us.” the Financial Conduct Authority Most notably, it is unclear how a (FCA), the Competition and Markets section 71-based informant scheme This is not the first time that Osofsky Authority (CMA) and the DOJ. Through would work in parallel with Deferred - a former US Department of Justice RIPA, informants are given certain Prosecution Agreements (DPAs), which (DOJ) and FBI lawyer - has advocated safeguards: a designated authority are only available to corporates and the use of US-style investigatory must be satisfied that the use of a CHIS have become the leniency mechanism methods; the SFO Director has is both necessary and proportionate, favoured by the SFO. Unlike the CMA previously indicated that the agency and the security and welfare of the leniency programme, the Joint SFO- was “intently exploring” the use of CHIS must be protected. Crown Prosecution Service (CPS) informants in the UK, highlighting Code of Practice for DPAs makes no how “valuable co-operators can be in There is an established body of case provision for co-operating offenders. cracking white collar cases”. law demonstrating a willingness by the courts to protect the interests of This is significant, as informants are The primary factor driving these CHIS, protections that are now largely arguably most effective for speeding up proposals is clear: speed. Giving encoded in the 2018 CHIS Code of large-scale, document-heavy cases - the evidence before the Commons Justice Practice. However, many issues in very cases that are also likely to hold Committee in December 2018, Osofsky a financial crime context remain: DPA potential. It is noteworthy that the bemoaned the slow pace of SFO namely, concerns have been raised latest and fifth SFO DPA, announced investigations as being “probably the about how CHIS are protected from this month in respect of Serco biggest criticism [she was] hearing”, self-incrimination, as well as how a Geografix Limited - a wholly-owned and expressed a desire to make the CHIS-based informant scheme would fit subsidiary of the outsourcing company prosecutor more “proactive” and within the framework of a typical SFO Serco Group - involved documentary “nimble”. investigation and prosecution. evidence relating to alleged fraud and false accounting offences committed as Legislative framework: RIPA What mechanism exists, for example, far back as 2011. for willing co-operators to reach out A key concern is how the proposal to the SFO, with a view to acting as a Reduced sentences would work in practice: there is, for CHIS? Equally, what safeguards exist example, no direct equivalent to a US- to prevent informants from lying and With these possible impediments in style plea deal here. However, there is obstructing justice, and how would the mind, the SFO may look to utilise provision for informants. Part II of the SFO test the robustness of information section 73 of SOCPA instead. This Regulation of Investigatory Powers Act provided? Further, what status would more commonly utilised provision 2000 (RIPA) provides the legislative informants hold when compared to creates a presumption that, if an framework through which informants, whistleblowers, and what protections offender pleads guilty to offence(s) and or Covert Human Intelligence Sources would they have? And, finally, does the also offers assistance to an investigator (CHIS) as they are known in the UK, SFO have the necessary resources and and/or prosecutor, then the sentencing can operate. infrastructure to adequately safeguard court may impose a substantially the interests of informants? smaller sentence. Under section 26(8) of RIPA, a CHIS is defined as an individual who Immunity However, the agency has seen an establishes a “personal or other unfortunate number of cases collapsing relationship” with another person for These questions are not with evidence provided on this basis. a covert purpose, essentially requiring straightforward, a fact that is further Moreover, the conditions imposed by compounded by the operation of such agreements can be onerous and

22 the barrister Michaelmas term 2019 drawn-out, and require an offender requisite for any potential informant to for the state to cause or instigate an to make admissions under caution weigh up their options. offence (which is not permitted), and at an early stage, which is likely to the act of providing an opportunity act as a deterrent for some suspects for the accused to commit an offence contemplating becoming informants. Cultural perception (which is permitted). There is also no guarantee as to likely sentence, which may act as a further According to reports published by the However, this distinction starts to deterrent. Investigatory Powers Commissioner’s break down in more complex cases, Office, there have been approximately and entrapment arguments deployed An informant arrangement supported 3,000-5,000 active CHIS deployed in the financial crime context would by SOCPA also risks conflicting with every year since 2003. This figure inevitably be analysed using a more parallel overseas investigations. is largely comprised of undercover comprehensive factual matrix test Theoretically, if a suspect pleads officers working in the field, not the adopted by courts in recent years, guilty to a criminal offence in the UK wire-wearing, white collar crime taking into account factors such as (pursuant to a section 73 agreement), informants envisaged by Osofsky in her the necessity and proportionality of they can seek to rely on the recent comments. the means employed by the agency internationally recognised principle of controlling the informant. This would ‘ne bis in idem’ (or double jeopardy), if The negative institutional attitude create further uncertainty as to the prosecuted elsewhere in respect of the taken towards informants – or efficacy of such evidence, whilst also same conduct. However, outside of the “snitches” as they are more colloquially potentially blurring the perceived EU, such protection is not consistently known – runs deep, particularly in “justice” of informant-generated applied, and separate agreements may the area of financial crime. This is convictions in the eyes of the public. need to be negotiated from overseas largely because there is not an easily authorities conducting parallel understandable system of guarantees Conclusion investigations. in place to reassure informants as to the advantages of offering assistance. Clearly, informants hold the potential Guidance needed Notably, the sentences imposed in the to speed up investigations, with UK for financial crime are a far cry Osofsky suggesting that co-operating For it to succeed, the SFO will need from the lengthy prison sentences in witnesses could further assist in the to clarify how such a scheme would the US. For any informant scheme to interpretation of documentation and work in practice and its expectations be successful, full transparency will be in the presentation of cases to juries. from co-operating offenders. This required to bridge this trust gap. However, for this potential to be would include when and how offenders unlocked, greater clarity is needed should offer assistance, what their A further potential obstacle is the on the mechanism, outcome and options are if the SFO approaches risk that evidence obtained through safeguards for informants. This would them, whether waiver of privilege undercover means is tainted by offer the crucial comfort needed for will be required and whether any entrapment. Distinguishing between those contemplating coming forward continuing obligations apply. Indeed, unlawfully created “state crime” is a and for the public to embrace such a detailed guidance, similar to the CPS’ fact-specific exercise, with the courts scheme. regarding “assisting offenders” co- historically drawing a distinction operating under SOCPA, will be a pre- between an agent who has acted

the barrister Michaelmas term 2019 23 Crackdown on the misuse of NDAs By Beth Hale, Partner and Harriet Riddick, Associate, CM Murray, Employment & Partnership Solicitors

ommonly referred to as in settlement agreements, for those things in an employment “gagging clauses” and example where the provisions in an contract or standalone described in the headlines employment contract are inadequate agreement, therefore, would be as “bullying tactics” and or have fallen away due to a breach void for that (and potentially a “legal weapons for the rich of contract. number of other) reason(s). Cand powerful”, the non-disclosure agreement (NDA) has been a topic The other – and more controversial • disclosing information in of major controversy following - type of NDA (which is the focus circumstances in which public revelations about their inappropriate of public scrutiny and this article) interest overrides the contractual use in high-profile scandals (such as is that which purports to preclude duty of confidentiality. This the Harvey Weinstein scandal and an employee (current or former) exemption is not particularly well the Presidents Club dinner). Some from speaking out about incidents defined in law, which makes it commentators have gone as far to that amount or may amount difficult to advise upon with any suggest that their use in the context to harassment, discrimination, certainty, but would cover the of workplace harassment cases is victimisation (or some other reporting of a criminal offence as wholly inappropriate and have called unlawful conduct). These provisions well as where there is a genuine for them to be banned. But is it right are typically found in settlement public interest in disclosing other to attribute blame to NDAs for past agreements but can occasionally information, for example where scandals and – if so - should they - as the Presidents Club dinner there is misconduct of such a be banned (or restricted) to prevent case exemplified – be found in serious nature that it ought to be future ones? These are just some employment contracts (in which case disclosed to others3 (including of the questions that have been the the preclusions would necessarily be recipients who fall outside the consideration of multiple inquiries, in respect of future conduct). ambit of the Public Interest consultations and reports in recent Disclosure Act 1998). months. From a legal perspective, there are some key limitations which already • disclosing information where On 21 July 2019, the Government exist on the enforcement of NDAs. In required to do so by law – for published a response to its summary, an NDA will not prevent example, where an individual consultation on proposals to prevent an individual from: is required to give evidence in the misuse of NDAs in situations court. of workplace harassment and • raising a protected disclosure discrimination (the Response). under the Employment Rights In addition to the above, on 12 March This article considers the proposals Act 19962. A disclosure of 2018 the SRA issued a Warning announced in the Response, including information which satisfies Notice (intended as a reminder of whether they go far enough in the requirements of the the existing position rather than a tackling the misuse of NDAs. whistleblowing legislation will change in the rules on the use of not be in breach of any express NDAs) which provided that NDAs But first, to set the scene, what is or implied contractual duties. should not be used: an NDA? Broadly speaking, it is a term used to refer to a provision • disclosing information which • as a means of preventing, or (or provisions) which prevent the does not have the “necessary seeking to impede or deter, a disclosure of confidential information. quality of confidence” (Coco v In an employment context, these Clark). There is no absolute test person from: provisions are routinely included as to what types of information in both employment contracts will have such a quality, but - reporting misconduct to a and settlement agreements and it has been interpreted fairly regulator; play a crucial (and legitimate) broadly (and it is assumed by - making a protected disclosure role in protecting the confidential many practitioners, although under the whistleblowing information of a business. Without there is no case law on this point, legislation; express contractual provisions, allegations relating to sexual - reporting an offence to a law generally only information which harassment would fall within this enforcement agency (such as the amounts to a “trade secret” will be category). police); protected from disclosure by an - co-operating with a criminal employee both during and after • initiating a claim for harassment investigation or prosecution; or employment1. In order to protect key or discrimination under the sensitive documents, such as client Equality Act (or another statutory • as a means of improperly lists and financial information, it is claim such as unfair dismissal) threatening litigation against, or standard practice for employment unless it is included in an otherwise seeking improperly to contracts to include confidentiality agreement which satisfies the influence, an individual in order wording. This type of wording statutory requirements governing to prevent or deter or influence a – which is generally considered settlement agreements. An NDA proper disclosure. uncontroversial - may also appear purporting to prevent any of

24 the barrister Michaelmas term 2019 Government Response published 21 July 2019

On 21 July 2019, the UK government announced plans for new legislation in its response to its consultation on proposals to prevent misuse of NDAs in situations of workplace harassment or discrimination (the Response). The Response also addressed a number of the recommendations set out in the Women and Equalities Committee’s report on the use of NDAs in discrimination (published on 11 June 2019), although a full response to that report will follow.

In the Response, the government reiterated its view that confidentiality provisions can serve a legitimate purpose in both employment contracts and settlement agreements, but that using these clauses to silence and intimidate victims of workplace harassment and discrimination cannot be tolerated. Hence, it will legislate to, in summary: limitations of NDAs - as well as the the costs, time and stress involved requirement at law to make this • ensure that individuals cannot on both sides of such litigation. clear to the individual signing the be prevented from making a agreement - is welcome and should disclosure to the police, regulated Importantly, regulating the use of help to end ambiguity about what health and care professionals NDAs can only go so far in tackling employees’ rights are. However, (e.g. doctors, social workers) or the issues. The reason this debate overall, the proposals do not go legal professionals; is alive is because harassment and beyond what is already considered discrimination in the workplace best practice in this area (particularly • ensure that the limitations of are still rife, and it is crucial that in view of the SRA Warning Notice) confidentiality provisions are we continue to focus on preventing indicating that cultural shift has clear, in plain English, within this type of behaviour occurring in been more impactful than legislative a settlement agreement and the first place. This is the subject of change is likely to be. in a written statement for an a further Government consultation employee; (due to end on 2 October 2019) Some may argue that the proposals and we can expect to hear calls for do not go far enough to ensure • require that the mandatory legislative change in this regard that individuals are appropriately independent legal advice (for example, a mandatory duty on protected from the misuse of NDAs. on a settlement agreement employers to protect workers from For example, the right to disclose includes the limitations of any harassment and victimisation in the to “regulated health and care confidentiality clause; and workplace). professionals” would not extend to (unregulated) therapists and • introduce new enforcement In the meantime, it is clear that counsellors; the ability to speak measures in relation to careful consideration needs to be to such a person being potentially confidentiality clauses that fail to given to the use and drafting of integral to victims’ ability to move comply with legal requirements NDAs, and the onus continues to fall on from the events. In addition, the - for example, confidentiality on legal advisers on both sides of rejection of standardised wording clauses that do not follow new disputes to ensure that NDAs are not for confidentiality clauses means legislative requirements will be being used in an abusive manner. employers will still have a degree void. of control over how the clauses Beth Hale Partner, C M Murray, are constructed (creating scope specialising in Employment and New guidance will also be produced for misuse) and some may see the Partnership law and also acts as by the EHRC, SRA and ACAS to decision against this as a missed General Counsel for the firm. Beth is clarify the law and good practice. opportunity to bring an immediate extremely well-regarded and has a change in lawyer and employer particular strength in explaining and Proposals that were considered practice in this area. simplifying complex legal concepts by the government but ultimately rejected include the introduction However, too much regulation in Harriet Riddick, Associate C M of standard-form confidentiality this area – and in particular a total Murray, specialising in partnership wording and a reporting duty in ban on the use of NDAs in sexual and employment law. Harriet advises relation to use of confidentiality harassment cases - risks interfering clients across many sectors on all clauses which were deemed (for with parties’ contractual freedom aspects of UK contentious and non- different reasons) too difficult to and may serve to discourage contentious employment law issue implement in practice. employers from reaching settlement with employees, driving more cases The increased clarity that the to the Employment Tribunal and all new legislation will bring on the

the barrister Michaelmas term 2019 25 Quality Compromised is Justice Denied Great strides have been made in embedding international quality standards in forensic science work that is to be relied upon by investigators and the courts. But these standards alone can’t guarantee that mistakes won’t continue to be made with forensic science at the heart of them. Professor Angela Gallop explains why, and what should be done to minimise the risks.

International accreditation 3. All scientific instruments amount of time allocated to the are in good working order, case, and the type of report they are Mainstream forensic science methods to be used on them commissioned to produce at the end laboratories are regarded properly validated, and all of it. as ‘Calibration and Testing staff appropriately trained Laboratories’ for accreditation – as demonstrated by initial Amount of background information purposes and come under the ISO/ proficiency, and then regular available to the scientist IEC 17025 international Standard. competency testing. This means Combined with adherence to the that the results they produce can Forensic science has become Forensic Science Regulator’s Codes be relied upon of Practice and Conduct, this helps increasingly commoditised in recent ensure that: 4. All staff understand, and have years with police customers choosing individually signed up to the from a menu of examinations and 1. All items submitted to the Forensic Regulator’s Codes tests precisely how many and of laboratory for examination of Practice and Conduct. This which type they want to be applied to and analysis are handled in means that their honesty and items they submit to the laboratory. such a way as to preserve their integrity should be beyond This has been taken to obviate continuity (through unbroken reproach the need for much background chains of custody) and integrity information about the crime, the (by avoiding contamination). 5. Critical results and surrounding circumstances, and This provides confidence that interpretations in each case are test results relate to the items checked by another, similarly activities of the people involved. It they are supposed to, and that qualified scientist in a system of follows that the scientist conducting these items have not been peer review. This provides an the tests may not appreciate the contaminated whilst in the additional safety net potential for evidence linking a Laboratory with anything that suspect with a crime to have arisen could be mistaken for evidence in innocent circumstances. Take So where’s the problem? the case of a man charged with 2. All processes and procedures murdering his wife by strangling applied to items during testing Problems can arise in interpreting her with a pair of her own are fit for their respective what the results of a particular leggings. Evidence presented by the purposes, are recorded in examination or analysis are likely prosecution included what looked a comprehensive quality to mean in the context of a specific like the husband’s DNA on the management manual, and case. This is because interpretation followed by all staff. Together leggings. But when, as a result of a can be critically influenced by eg. the review on behalf of the defence, this with participation in proficiency amount of background information tests and inter-laboratory was put into the context of what the comparisons, this means that it available to the scientist about the husband said he did and the fact shouldn’t matter which scientist case, the selection of which items that he and his wife lived together, it has been involved in which case they are to examine and for what, lost its force as evidence of his direct the depth and breadth of experience – their results should all be the involvement in her death, and the of the scientist doing the work, the same case was dismissed at half time.

26 the barrister Michaelmas term 2019 Selection of which items to from the defendant simply standing of instruments used to analyse examine and for what close to the other man while he toxicology samples leading variously was bleeding. There was certainly to wrong results, or right results Pressure on police budgets has nothing to suggest any kicking or being attributed to wrong samples, brought commissioning of forensic stamping; indeed, there was no and failure to calibrate equipment tests into sharp focus – not because complaint about this. But without our properly so firearms were wrongly forensics forms a large part of such intervention, the initial opinion of the classified as lethal. budgets, but because it represents first scientist would have been taken a large part of a Force’s external at face value. spend. This means that it stands So, how can we minimise the risks? out like a sore thumb and, in an Type of report or witness attempt to reduce costs, there has statement produced There are several things which would been a concerted attempt to reduce make an immediate improvement to the number of items submitted for In an effort to save time and cost, quality in forensic science including examination. Streamlined Forensic Reports or ensuring that: SFRs have been introduced. An SFR On the basis that you can only find 1 provides a short factual summary 1. Scientists are given sufficient potential evidence where you look of an analytical result, often written background information to for it, this can result in distorted by a police officer, and an SFR understand the significance or interpretations and some evidence 2 gives slightly more detail and, otherwise of their results in the being missed altogether. For written by a scientist, offers a simple context of the specific case at instance, at the scene of a domestic opinion of what the results mean. hand burglary, multiple footwear marks We have been involved in a number were observed on the conservatory of cases where SFRs have been used 2. Scientists contribute to decisions floor. Gel lifts were taken from the inappropriately, sometimes with about which items are to be clearest marks and submitted to the potentially serious consequences. In examined and for what, and how laboratory where they were shown to one case a drink can from a crime their work should be reported represent two pattern types, neither scene was examined by a crime of which matched the tread pattern scene examiner who reported that 3. All organisations providing of the suspect’s shoes. That would DNA from saliva on the can matched forensic services – including the normally have been the end of the an individual with a statistic of 1 in police themselves, are accredited matter. But the scientist involved 250 million. Fortunately a scientist to international standards and noticed that there were other fainter, appointed by the defence identified are not just ‘working in line with more fragmentary footwear marks that: no saliva had been looked for them’, and importantly in photographs of the scene. When let alone detected; the DNA result these were explored in detail, they was a partial profile which could 4. Each organisation actively were found to correspond with alternatively have resulted from supports its own quality system, the suspect’s shoes – in pattern, someone just touching the can; no- using it to embed a culture of pattern arrangement and unique one had checked the DNA match; the continuous improvement, as damage features to the extent that statistic was generic (best guess) and opposed to merely ticking boxes they provided conclusive evidence not specifically related to the case; and caring more about passing that these marks were made by the and finally the crime scene examiner proficiency tests than casework suspect’s shoes. had not been trained in DNA itself, and reporting and so would be unable to answer any questions about it. 5. Where forensic science evidence Depth and breadth of experience is critical to a case, it is always independently checked on behalf The adverse effects of inexperience Human error of the defence by a properly are seen most often in newer forensic qualified and experienced, disciplines, and where traditional Besides shortcomings in the system independent forensic scientist forensic science activities have that we know about, there will – also working in a quality been taken over by police or related always be other sources of quality accredited environment. So often personnel. For instance, there are failure that are more difficult problems in forensic science are numerous examples of faulty cell site to predict. Each of the three only exposed as a result of this evidence suggesting the owner of a main forensic science suppliers type of check – the ‘critical last mobile phone was somewhere he have suffered from these despite level of quality assurance’ as a or she wasn’t, and of arson cases in undoubted commitment to quality former Forensic Science Service which the wrong suspect has been and quality management systems. In Director once described it to me. identified, and which wouldn’t have one case, a disposable sample tray come to light if the defence had not was inadvertently re-used during the Only in these ways can we help commissioned their own review of DNA profiling process, resulting in ensure that forensic science is as the work. someone being arrested and charged good as it should be and is less likely with rape in a city he had never to feature in miscarriages of justice. But there can also be problems in the visited. In another case, the use of best traditional forensic laboratory. non-unique identifiers resulted in a A recent case concerned a man who sample from one crime scene being Professor Angela Gallop CBE was accused of injuring another in mistaken for one from another. This Forensic Access Ltd a fight. There was blood staining on led to the victim in the first case his shoe which, the prosecution’s being arrested and interviewed as a Angela Gallop is known equally scientist suggested had resulted from suspect in the second. In a third case, for setting up and running full him kicking or stamping on the other a simple handling error during DNA scale forensic laboratories and for man. But our independent review analysis resulted in someone being personally leading the scientific suggested that it simply represented arrested and charged for two crimes teams who helped to solve many the sort of secondary back spatter when any connection was only with of the UK’s most complex and high you get when drops of blood fall one of them. Other examples from profile criminal cases including into a pool of liquid blood nearby. In accredited facilities relate to eg. Rachel Nickell, Damilola Taylor and other words, it could have resulted incorrect programming or loading Stephen Lawrence.

the barrister Michaelmas term 2019 27 The Importance of Pursuing Mediation before Starting Legal Proceedings By Patrick Cannon, tax appeals barrister

Under the APN regime, there is no The Principle right to apply to HMRC or to the tax tribunal to postpone payment of the tax As long ago as 2001, Lord Woolf LJ demanded. However, section 222 of gave this guidance in R (Cowl) v Finance Act 2014 allows the taxpayer Plymouth City Council [2001] EWCA to make representations to HMRC Civ 1935 at [1]: objecting to the APN and/or the amount demanded if the taxpayer believes that “The importance of this appeal is that the statutory conditions for issuing it illustrates that, even in disputes the APN were not met or the amount between public authorities and the shown in the notice is incorrect. members of the public for whom they Payment of the tax demanded by an are responsible, insufficient attention APN is normally required to be made is paid to the paramount importance within 90 days of the issue of the of avoiding litigation whenever this APN, but if representations are made is possible. Particularly in the case of under section 222, payment of the tax these disputes both sides must by now is then postponed until 30 days after be acutely conscious of the contribution HMRC respond to the representations, alternative dispute resolution can make assuming that HMRC then either to resolving disputes in a manner confirm the amount specified in the which both meets the needs of the APN or amend the notice to specify a parties and the public and saves time, different amount. Mrs Archer’s APN expense and stress.” was issued on 4 November 2014 and the 90 days for payment of the tax And at [27]: been no detailed preparations at that ended on 5 February, 2015. Yet less stage for a trial. than four weeks after the issue of the “This case will have served some APN, the legal services department of purpose if it makes it clear that the KPMG wrote to HMRC on 28 November, The Court of Appeal’s Decision lawyers acting on both sides of a 2014 stating that they would be dispute of this sort are under a heavy applying for a judicial review and that The Court of Appeal dismissed the obligation to resort to litigation only if they would be sending a copy of the it is really unavoidable. If they cannot claim for costs. Henderson LJ held sealed claim form when it had been that Parliament must have intended resolve the whole of the dispute by the issued by the Administrative Court. use of the complaints procedure they taxpayers to take advantage of section In fact, the claim form was issued on 222 Finance Act 2014 before having should resolve the dispute as far as is the same day although not served practicable without involving litigation. resort to judicial review. Judicial on HMRC until 2 December, 2014. review is a remedy of last resort and At least in this way some of the The statement of facts and detailed the facility to make representations to expense and delay will be avoided.” statement of grounds were settled by HMRC under section 222 provides a counsel. relatively cheap and simple way for a Two recent tax cases offer a salutary taxpayer to challenge an APN without reminder of the importance of this KPMG then made representations resorting to the Administrative Court. judicial guidance and that legal under section 222 of Finance Act 2014 advisers should not use the issue of but not until two weeks after service of Indeed, it was all but self-evident legal proceedings including judicial the judicial review claim form. that section 222 was intended by review as a first or concurrent line of On 22 December, 2014, HMRC Parliament to provide the primary attack, and if only in the interests of withdrew the APN, but in their defence recourse for challenging an APN. The their clients, they should exhaust all against the judicial review, said that time for bringing a judicial review alternative dispute resolution avenues, (1) KPMG’s letter had failed to comply application should in practice not begin including mediation, first. The extra- with the pre-action protocol for judicial to run until the section 222 procedure ordinary irrecoverable costs bill run up review and in any event was written had been completed. The danger in in one of the cases considered below on the date the claim form was issued; the way KPMG had proceeded was illustrates the risk of failing to follow and (2) the claim was premature that very considerable costs may be this principle. incurred in preparing for a judicial because Mrs Archer had not exhausted review when the whole point of section her statutory remedy under section 222 222 is that it may lead to a result which of Finance Act 2014. Recent Cases Showing Why makes legal action unnecessary. ADR Is so Important A further ground to refuse costs The Costs Claim The first case isR (on the application was held to have been the litigation conduct of Mrs Archer’s advisers. No of Mrs Archer) v HMRC [2019] EWCA It was argued on behalf of Mrs Archer Civ 1021 and it involved a claim by serious attempt was made by KPMG that HMRC should pay the whole cost to comply with the pre-action protocol Mrs Archer to recover the costs of her of the judicial review because Mrs for judicial review. Indeed, HMRC judicial review proceedings concerning Archer had been fully successful in were presented with a fait accompli on an accelerated payment notice or her claim. Total costs were put at 24 November, 2014 instead of being “APN” issued to her by HMRC in £601,552.20, including that of Mrs given time to respond. Far from using 2014. The APN required the payment Archer’s husband who had faced a judicial review as a last resort, KPMG of £6,116,598.95 tax in respect of similar APN. This level of costs was had employed it as the first line of a tax scheme she had deployed in described by the judge hearing the attack and the very substantial costs of order to avoid tax on a capital gain original costs application as extra- preparing the proceedings had already of £15.3m in the 2005/06 tax year. ordinary, particularly as there had been incurred.

28 the barrister Michaelmas term 2019 367. At the end of the day, we cannot adjudicate on the Another Example ADR process, although in this case we happen to know quite a lot about it because the parties - each legally advised The second case was Stirling Jewellers (Dudley) Ltd v HMRC and represented - chose to place a significant amount of [2019] in the first-tier tax tribunal and concerned a dispute correspondence which pertained to settlement discussions about corporation tax with HMRC and the remarks of Judge before us. Christopher McNall about the utility of ADR in clarifying the issues and helping to narrow the scope of the dispute are 368. Posturing and skirmishing in correspondence worth quoting in full: ultimately proved to be non-progressive, and there is an impression (we cannot put it higher than that) that the tone 363. The Appellant’s cover letter to its Notice of Appeal says of the correspondence ended up driving the parties into that an application for ADR had been made. That was very polarised, and entrenched, positions. sensible. If ever there was a dispute which cried out for a determined attempt at Alternative Dispute Resolution, it was this one. The Lesson Learned 364. This appeal has been allowed in part, and dismissed Both the Court of Appeal and the tax tribunal have recently in part. Put bluntly, both parties’ cases as advanced and provided reminders of the importance of pursuing and pursued before the Tribunal were either factually or legally exhausting alternative dispute resolution remedies to try to wrong in significant respects. The Appellant still faces a resolve the matter or at least to try to clarify and narrow the significant tax bill, albeit this will end up being somewhat scope of the dispute before going down the path of issuing less than the amounts which were assessed and subject to legal proceedings. The failure to do so can have huge costs the appeal. implications for clients. Moreover, professional advisers whose enthusiasm for a fight overrides their better judgment, 365. If this appeal and our resolution of it - which has risk professional embarrassment if they fail to advise clients been laborious - has shown anything, the process of ADR to pursue alternative remedies first. Lord Woolf’s words may well have been challenging. Both parties would have quoted above should be at the forefront of every litigation had to be prepared - in a confidential and without prejudice lawyer’s mind. environment - to reflect on the genuine strengths and weaknesses of their respective positions. Patrick Cannon, a leading SDLT and tax appeals barrister. Patrick is a CMC accredited mediator and also advises on 366. At the very least - even if a negotiated settlement, and appears in civil and criminal tax investigations and giving appropriate regard to the strengths and weaknesses disputes with HMRC, challenges to tax avoidance schemes of the parties’ cases, could not have been reached - there and action against professional and other advisers who mis- was nonetheless still ample scope for the parties to have sold aggressive tax avoidance schemes now subject to APNs engaged co-operatively so as to properly identify and narrow and Follower Notices. the issues genuinely in dispute.

the barrister Michaelmas term 2019 29 Wellbeing at the Bar? Is a Legal Aid Lawyer’s Work All Stress and Distress? By Professor Jo Delahunty QC

hen I told my children that I was going to can drill a major hole into a firm’s meagre profits). Whilst write about Wellbeing at the Bar, they gave I will have had this type of conference many times before, me one of those looks that any parent caught for the client it will be a first: and potentially so too for the out in a whopper will recognise. What, they junior and clerk. How well have they been prepared for asked, could I possibly know about wellbeing, this experience? When do I take the time in advance of the givenW the way I work (often up half the night, as well as conference to make sure that they are going to be OK with evenings and weekends) and my unhealthy obsession with what’s going to happen? ‘Not often enough’ is the honest performance as a child protection silk? answer. And how can they ever be ‘OK’ with it actually?

I know what being unprepared means to my own emotional It is a good question. I believe that being a barrister and and psychological cost. As a junior barrister I went to a a legal aid lawyer is a rewarding and fulfilling career police station to watch client evidence. I had not been told (emotionally and intellectually), but that our profession also what I was to see. I have never forgotten watching the video needs to change to become a heathier one to practice in if of a child being buggered and the sadistic delight the camera we are to honestly encourage junior members to follow in person took in zooming into the child’s face as it contorted in our footsteps. I say that because a legal aid lawyer will be terror and pain. working in an underfunded system that depends on unpaid work by those who practice in it to fill the gaps and because It’s hard to feel clean and whole after these experiences. It is the nature of the work we do requires us to confront grim hard to go back home and watch your own child innocently and brutal aspects of life (and death) that are rarely seen by playing with his dad when all you can see is the difference ‘normal’ society. in their size and what that can mean in terms of power and pain for an abused child. Images are etched on your retina. For example, my field of specialist child abuse requires me One’s antennae for distress is heightened. It’s hard going to to look at images of a baby’s inert and dead body. I track its a park and not noticing the slaps that should not have been photographic transition through pathological dissection from given to a child irritating a harassed parent, not to notice child to its component parts of brain, bones and organs until the child who may or may not be being bullied surrounded its humanity is lost and becomes a collection of ‘parts’ and by a baying group of kids. I can’t watch film, TV dramas or slides. If I cannot avoid it I look at images of child sex abuse, documentaries that touch on anything to do with child abuse. of rape and buggery of babies, barely a few months’ old, It breaches that final barrier between work and normality as well as young children. Under the watchful eyes of the that I try to erect. anti-terrorism force, I read restricted ISIS material: photos, images of the dead and dying and tortured. In the course So why do this? Legal aid lawyers do this kind of work of my work with families during the Hillsborough Inquests because it is a vocation. We had (have) a desire to make a I, and my colleagues, had to look at footage of the crowd, difference in the job we do. Whether we choose to practice trying to pick out a loved one from the grim press images of in family, crime, immigration, human rights, we are all the many fans suffering; zooming in on a loved ones face to barristers. To be a barrister requires an ability to work try to work out the moment of death the point at which the independently with intuition, imagination and drive. We are crush overcame the bodies resistance to the pressure of the competitive. We are judged by our performance in court: crowd. We watched as they died. Over and over again. our last case, our last cross examination. There is no ‘re- wind ‘button if we ask one question too many that shatters In a client conference I will have a junior with me to sit, a line of defence. We are self-employed: no work = no pay. listen and note. I may have a solicitor with me but more We don’t get sick leave. I know of many a women who has often than not a clerk (legal aid solicitors can rarely now come to court having had a miscarriage that night/morning; take the time out of office or court work as lost billing time of colleagues who have come to court in the immediate

30 the barrister Michaelmas term 2019 aftermath of a bereavement. We come to work because we feel we have to. Because we fear the client’s case will suffer if we don’t. Because we are programmed by our work culture to tough it out, stay calm, and carry on. I have fallen ill in court three times in my career and have not been able to continue. Afterwards I felt ashamed at my weakness and worried at the damage I may have done to my reputation. I still feel ‘small’, years later, when I think of those instances.

This is not just my personal experience. Earlier this year the Guardian reported that barristers are in the grip of a mental health crisis. A couple of years before, In the Bar Council’s seminal Working Lives Survey 2015 , which they plan to repeat this year, it found that 1 in 3 find it difficult to control and stop worrying, 1 in 6 tend to feel down or in low spirits most or all of the time; 2 in 3 feel that showing signs of stress at work indicates weakness; and 3 in 4 see genuine mistakes as opportunities for learning only ‘some of the time’ or ‘not at all’. And if you want to understand what you should be looking out for, the ’s Gateway, “Working with Traumatized Witnesses, Defendants In January this year our new Head material); it will not bring back a and Parties”, Toolkit provides detail of Division, The Right Hon Mr. properly funded legal aid system, but on manifestations of trauma, PTSD, Justice Andrew MacFarlane singled we can help ourselves, as a profession, complex PTSD, dissociation and good out as his number one priority the to make our working culture a little bit practice examples on working with unprecedented and unsustainable more bearable. traumatized individuals; it also covers volume of cases in the family justice material on secondary trauma, which system, and the impact of that on But we also need to raise awareness is sometimes confused with burnout. working conditions for professionals. of how to spot symptoms both in your Secondary traumatic stress, known He identified the problems caused by own behaviour and in colleagues’. as compassion fatigue or compassion the rise in private law applications and That’s one of the reasons why I have stress, can strike suddenly and without the increase in unrepresented litigants. chosen to speak out. Mental health warning (unlike burnout which is He acknowledged the negative impact matters and saying you are struggling a process that can potentially be on cases due to the lack of paediatric should not be viewed as toxic to your prevented with self-care). experts willing to take on work in pubic reputation. There are resources to law child protection cases. He said, ‘it help lawyers, the Bar Council’s www. We need to recognise collateral damage is neither necessary nor healthy for the wellbeingatthebar.org.uk is heavily or the potential for it in ourselves and courts and the professionals to attempt used: it has had 242,440 hits since its our colleagues in order to help because to undertake ‘business as usual’. He launch, with over 75,000 hits in the sometimes it can be hard to spot it. ‘encouraged’ local dialogue between last 12 months. These figures show the legal profession and each court that we have a problem at the Bar that Among the symptoms can be: to identify parameters ‘as to what is there’s nothing shameful in saying so numbness, depression, anxiety, and is not sensible or acceptable in or using the help that is on offer. A self-medication (drugs, alcohol), terms of working practices’. He offered full list of people and services the Bar overworking and compulsive eating; suggestions such as agreeing can access is included in my lecture sleep difficulties, headaches, gastro- notes: please log on, circulate and use intestinal problems, impaired immune • The earliest time of day when the them: Wellbeing matters. The whispers system, self-harm, isolation, irritability, court can reasonably be expected of worry that emerged in 2015 have nightmares, flashbacks and exposure to to sit; now become a full-throttled shout: we abuse by others. • The latest time of day when the need to change our working culture. court can reasonably be expected Please join in this conversation. We are But apart from looking out for these to sit; stronger together. issues, what can we do to improve • The latest time in the evening, and wellbeing at the legal aid bar? the earliest time in the morning, This subject will be re-visited by when it is acceptable to send an Jo Delahunty QC in articles to be I think we must change the way that email to another lawyer in a case published in the autumn by the Bar the legal aid bar works. or to the court. Council in ‘Counsel’ Magazine and by Jordan’s in ‘Family Law’. This We know it is underfunded, and One judge HHJ Roberts, then issued subject needs to be kept in the spotlight that working all night (which is a wellbeing practice note providing because words are not enough: we not uncommon) should not be an changes in Essex and Suffolk (26 need action and change. expectation in order to get the work February 2019), but she is currently done. We know that the way our legal the exception to the rule. This is a shortened version of a lecture Professor Jo Delahunty QC gave at system works intrudes upon normal As a profession we need to embrace Gresham College. It can be viewed at expectations of family life (for example, what Macfarlane told us and make https://youtu.be/FcJuXeVi8ig and her being told on the day you must stay that change. It will not remove the notes can be accessed at http://www. beyond 5pm; 24 hour emailing with danger of stress and PTSD (we will still gresham.ac.uk/lectures-and-events/ urgent, last minute evidence). be dealing with the same distressing family-lawyer-stress-distress

the barrister Michaelmas term 2019 31 Clinical Negligence: Our Fight For Public Safety and Justice By Steve Webber, Chairman (SCIL) The Society of Clinical Injury Lawyers

Introduction claims under £250,000, or possibly mother’s arms. £100,000 should be fixed. The government have been n an emotional video on www. indicating their determination The government have accepted scil.org.uk his father, Jamie, talks to impose fixed fees in clinical these arguments and now say that about that awful experience and negligence cases since July 2015. the limit will be set at no more five years later in 2018 told The It all started with an announcement than £25,000 and the Civil Justice Sunday People why they needed that the government would save Council have been instructed to specialist legal support; ‘Families, £80 million and the then Health investigate further and will be like ours, must spend years trying Minister, Ben Gummer, accusing reporting shortly. to establish the facts, reliving the claimant lawyers of “using patient worst moments of our lives’. claims to load grossly excessive Specialist representation is costs on to the NHS ….”. essential as shown in the case It shouldn’t have to be like this of new born Sebastian Sparrow and that is why politicians from The Society of Clinical Injury who died ‘twice’ in two London all sides of Parliament including Lawyers (SCIL) spent many months hospitals in heart breaking Lords Falconer and Alton are dis-spelling this myth and the circumstances in 2013. Pronounced raising serious questions about accusation that claimant lawyers dead after delivery his grieving government plans are to blame. parents an accountant and a solicitor were told 30 minutes later SCIL have argued since 2015 that The government’s campaign that he was breathing. Rushed to fixed fees are not appropriate in started with an indication that all another hospital he later died in his any clinical negligence cases, as

32 the barrister Michaelmas term 2019 well as reminding the government a significant focus on patient ground, so the order goes out: that previous reforms implemented safety then the reforms will ‘Deny, defend, delay!’ by Lord Jackson have not inevitably fail. yet worked their way through 2. The second biggest factor 3. There are a number of very the system. The recent NHS affecting costs is defendant serious cases where value Clinical Negligence: Our Fight For Resolution reports show the only behaviour. A claimant, in the may be below £25,000 costs in clinical negligence that present system, cannot incur including fatal cases (arguably are reducing are claimant costs costs if a case is settled. The the most serious injury of all), Public Safety and Justice which have reduced by £24m earlier a defendant settles, psychiatric injuries, still By Steve Webber, Chairman (SCIL) The Society of Clinical Injury Lawyers and £31m in the last two years the lower the costs will be. births as well as injuries to . Damages and defendant costs Defendant behaviour is not the most vulnerable in society, are all increasing. It is completely being addressed. The NHS including those on lower pay, illogical to impose further reforms Resolution annual reports children and the elderly . For before the full effect of the previous show that claimant lawyers are any reforms to succeed then reforms are known. succeeding in approximately these complex and emotionally 75% of all cases once court charged cases must be Any change in the system must, proceedings are issued. How excluded. as its primary focus, concentrate can any defence organisation on patient safety. It is a simple allow this to happen? SCIL is 4. How are any reforms going to argument that if you can improve an organisation that represents deal with expert fees? patient safety you can reduce the specialist lawyers whose number of cases and therefore success rates post-proceedings I have significant experience of reduce costs. are generally much higher than litigating in Wales where there 75%. have been previous reforms The issues that need to be The problem was very that have attempted to fix considered are: neatly summarised by the experts fees (this occurred in Conservative Peer, Lord the Speedy Resolution Scheme). 1. SCIL have created a scheme Garnier when he said “…the These reforms did not work. to reform clinical negligence NHSLA (forerunner to NHS Claimant lawyers struggled cases under £25,000 which has Resolution) too often engages in to identify experts who would patient safety at its very heart. unproductive trench warfare: work at those rates and even If any reform does not include it must not be seen to be giving if you could identify someone

the barrister Michaelmas term 2019 33 the waiting lists were very long, claim at that point. pagination fees, depending on the as experts would do work at number of records. full remuneration before they If the claim does not settle at that would think about working at stage then the claimant will provide It is SCIL’s view that expert fees the lower rate. Expert fees a detailed letter of claim in the should continue to not be fixed will have to be paid at a rate normal way, but it will be signed but discussions should begin with that would be attractive to by an appropriate AvMA or Law medical expert organisations to see appropriate experts. The Legal Society panel member confirming what can be done to control costs. Services Commission have also the letter is based upon supportive It is SCIL’s view that with these attempted to cap costs and this expert evidence, or if not the basis reforms fixed fees would not need only resulted in cases being of the evidence that supports the to be implemented but the costs dealt with by CFA agreements. letter of claim (for example, SUI incurred within the scheme could report). be monitored closely and it will 5. How will counsel be dealt with show that if defendants take the in any reforms? The defendant would then provide opportunity to settle cases early the a full reasoned response to the costs will reduce dramatically. This is a particular concern letter of claim. for the junior bar as if reforms There are strict time limits set for If the defendants do admit are put in place where a fixed each step and the sanction would liability then there should be an fee is set too low and there is be the case would fall out of the opportunity to settle quantum no allocation for use of counsel scheme. quickly and it is anticipated that then it is likely that the bar will most cases will settle without be excluded. Often in cases This scheme only deals with the the need for litigation but early such as fatal claims a more issue of breach of duty of care and neutral evaluation (ENE) could senior counsel is often required. causation based on an admission. be incorporated into the scheme If an appropriate allocation to deal with quantum only. It of fees is not provided then The vast majority of cases should would not be appropriate to appropriately experienced settle and, in fact, already do deal with liability due to the counsel would not be available settle without disclosure of expert obvious difficulties of an evaluator to be instructed to everyone’s evidence or witness statements. assessing liability on the papers detriment. The statistics obtained by and not by way of oral evidence. SCIL show that in 2017/2018 approximately 74% of cases settle The focus of these reforms would So how does SCIL suggest the before that stage of proceedings. not be on fixing either parties costs reforms should be implemented? but putting patient safety at the The key to the SCIL scheme is forefront, reducing the amount of providing more early opportunities work required by claimant lawyers SCIL has created a scheme for to admit liability and settle before notifying the defendant so dealing with claims valued at below cases without increasing costs, as to allow them to consider the £25,000 . The scheme involves appointing a safety champion to case, encouraging early settlement, amending the pre-action protocol ensure patient safety is at the heart appropriate sanctions to stop to put patient safety at the centre of of the reforms and dealing with poor behaviour and a scheme that the case and allow for three early poor behaviour by the parties by could be monitored so that further opportunities to settle the claim. including sanctions as the case falls improvements could be made over There would be an automatic out of the scheme if deadlines are time. limitation waiver upon notification. not met. The claimant would apply for the There have been so many reforms medical records in the normal SCIL believe that only accredited in the clinical negligence arena way, but will provide brief details lawyers should operate within the over the last 20 years that we feel of the case to be put forward and scheme. This would be on the any further reforms should involve the defendants can settle at that basis of AvMA or Law Society panel tweaking the present system rather point for example if there has been membership. SCIL also believes than overhauling it and changing an internal investigation or never that an organisation should be the focus that always appears to be event. appointed to monitor the operation placed upon claimant costs rather of the scheme generally. than avoiding claims and costs and If the defendant does not want ensuring access to justice. to settle then the claim will Finally, there are strict exclusions continue with a letter of intention in the scheme which would include ------to be submitted to the potential still births, all fatalities, children defendant. cases, claimants who do not have 1 Legal Aid, Sentencing and capacity, multiple defendants or Punishment of Offenders (LASPO) A copy of the letter of intention will claims involving foreign nationals. be sent to a ‘safety champion’, to 2 NHS Resolution annual reports 2017 be appointed by each trust and will The scheme will allow every to 2019 investigate claims being submitted opportunity for early settlement and review patterns of claims. and for the safety champion to 3 NHS Resolution annual reports 2016 identify opportunities to learn to 2019 Defendants have often indicated from mistakes and issue letters they are not given an opportunity of apologies in appropriate 4 HOC Hansard 9 March 2016 : Column to settle a claim before significant circumstances 144WH costs are incurred so the defendant can review the letter of intention, When dealing with costs there 5 Due to lack of or low loss of earnings investigate the case and settle the could be scale costs relating to claims and other special damages

34 the barrister Michaelmas term 2019 the barrister E XP ERT WI T N ESS SER VI CES the barrister Michaelmas term 2019 35 VI CES WI T N ESS SER E XP ERT the barrister 36 the barrister Michaelmas term 2019 the barrister E XP ERT WI T N ESS SER VI CES the barrister Michaelmas term 2019 37 VI CES WI T N ESS SER E XP ERT the barrister 38 the barrister Michaelmas term 2019 the barrister E XP ERT WI T N ESS SER VI CES the barrister Michaelmas term 2019 39 40 the barrister Michaelmas term 2019