Weekly Round Up 28.09.12
CBA Chairman’s Update: Michael Turner QC
- Instructed Advocates in Rape Cases: The New Protocol.
- The Late Payments Directives. This Governments Attitude.
- A Vision of the Future and a call for a united front.
- Forums still open
- CBA chambers representatives still required.
- Elections still open
- Forthcoming events.
1) Instructed Advocates in Rape Cases: The New Protocol.
I bring this to your attention as there has been some misunderstanding in the press and amongst politicians as to the objective of the new protocol. This is the bit that has caused the trouble:-
The Instructed Advocate
“Wherever possible the instructed advocate should conduct the hearing including defence applications for bail and other interlocutory hearings. Where they are not available another accredited advocate from the same Chambers (or a CPS rape specialist in the case of an in-house HCA) should conduct the hearing having been briefed by the instructed advocate. Where no such alternative advocate is available, a non-accredited advocate (or non-rape specialist HCA) may be instructed but only where the instructed advocate is able to speak directly to their replacement and ensure they are fully briefed on the circumstances of the case. The aim of this guidance is to ensure that rape cases are prosecuted to the highest possible standard and if not by the instructed advocate by an alternative advocate who is fully briefed by the instructed advocate on all relevant matters.”
In some quarters this has been interpreted as allowing non rape specialists to conduct trials. It means no such thing. In fact it is a sensible initiative ( you know I will always tell you if it is not ), designed to speed up rape prosecutions and ensure that a properly instructed advocate is available at all times. All practitioners will understand that it is not possible, nor desirable to have a rape specialist prosecutor at all hearings in the run up to the trial. All this amendment achieves is to ensure that the person who covers such a hearing is properly briefed. Rape Specialists will continue always to conduct rape trials.
2) The Late Payments Directives. This Governments Attitude:
In my email of Friday 7th September I brought to your attention the Late Payment Regulations. This has now been enacted in Scotland ensuring advocates across the border can obtain interest on any payments not rendered in 30 days. The Bar Council have not been slow to take this point up with Government. In July, Mark Lucraft QC (the outgoing Chair of the Bar Council Remuneration Committee) and a very good one at that wrote this:-
“The Bar Council is aware that the Late Payment of Commercial Debts (Interest) Act 1998(LPCDIA) was amended in 2002 by the Late Payment of Commercial Debts (Scotland) Regulations 2002 (SSI 20021335). This amending legislation provided for the application of the Act to the Faculty of Advocates in Scotland by inserting the following clause”
2a) Application of the Act to Advocates
“The provisions of this Act apply to a transaction in respect of which fees are paid for professional services to a member of the Faculty of Advocates as they apply to a contract for the supply of services for the Purpose of this Act.”
This provision has been successfully used to enforce interest payments on late payments of advocates’ legal aid fees in Scotland. Smith v Scottish Legal Aid Board 120121CSIH 14 has also confirmed that the 30 days for payment begins from when the Scottish Legal Aid Board receives a claim for fees.
“The Bar Council believes that a similar provision should be inserted to provide for the application of the legislation to the Bar of England and Wales, There is no reason why members of the Bar of England and Wales should be excluded from the application of the Act simply on the grounds of where they are qualified to provide legal services, We are also aware that the EU Directive20lU0TlEU on late payment (the Directive) must be transposed into national taw by EU Member States by 16 March2073. The Directive supersedes the previous Directive (2000135|FC), which was transposed into UK law through the amendment of the LPCDIA.”
Full text of his letter HERE
This was his response from Dr Elizabeth Gibby of the Access to Justice Policy Group.
Thank you for your letter of the 13 July 2012, concerning the payment of interest on late payments to Barristers undertaking legal aid work through the Late Payment of Commercial Debts (Interest) Act 1998 (Late Payment Act) and the EU Directive 2011/07/EU on late payment (the Directive).
I apologise for the delay in responding to your letter, however it has taken some time to confirm the position on the Late Payment Act and the Directive with the Department of Business Innovation and Skills (BIS) who are responsible for the administration of both. You had asked whether an amendment to the Late Payments Act could be considered, to enable a similar position for advocates in England & Wales to that which exists for advocates in Scotland, on the payment of interest for late payments received.
Having considered your request, BIS officials have advised that a change along the lines of your suggestion would likely go against the Governments transposition guidance on how to implement Directives effectively, so they do not currently intend to make any amendments to the Act beyond those that will be necessary to transpose the Directive.
Full text of her letter HERE
It appears that this Government is quite content to discriminate as between those North of the border and those South as well as playing fast and loose with European Directives.
What other areas of society are treated with such contempt. It is time we found our voice.
3) A Vision of the Future and a call for a united front.
You will all be aware of how the Bar and the Solicitors profession are fighting over QASA. The big debate is over “POA’s” Plea Only Advocates. The Solicitor’s profession has been forced into the court room as the graduated fee solicitors scheme does not remunerate them properly for the work they do. We fear a threat to our livelihoods and do not believe this to be in the public interest. QASA is simply a necessary pre-cursor to OCOF ( one case on fee ). Necessary because with the introduction of OCOF, the cab rank rule and any freedom a client has to instruct an advocate of their choice disappears. QASA provides the fig leaf which will allow the Government to say “We never promised you an advocate of choice, only one with the suitable Grade to conduct your case”. With OCOF comes the death of the Bar, as we know it, as instructions are given to the lowest bidder. There are some in both professions who believe a killing is to be made in this brave new world. What they have not noticed is that the likely successful bidder, once best value tendering comes our way, will not be either the Bar or the Solicitors Profession but the so called ABS’s ( The Alternative Business Structures ) the likes of G4 S. If you do not believe me you should know that the CO-OP is currently bidding for the contract in care work in London. Quite why anyone is fooled that ABS’s are value for money is beyond me, a small example:-
G4S retains the contract for front of house court security. It pays its employees £6.45 per hour, it receives on the other hand £11.49 per hour, per employee from the Court Service. That is a daily profit of £40.32 per employee. Its web site tells me it has 800 employees within the court service and their contract runs for 5 years from 2011. The gross profit to G4 S over the life of that contract is a staggering £41,932,800. Two of the oldest professions will be wiped out at no cost saving to the taxpayer whatsoever. To the Governments considerable gain and the public’s irreplaceable loss, those who have fought so tirelessly to expose injustice will have vanished. Is it any surprise that our own Prime Minister did not know the meaning of Magna Carta. By the time the dogs that represent these two great professions have stopped fighting over the bone that is QASA the carcass will have been picked bare. I am already in discussion with a number in the solicitor’s profession who believe the same. We are the ones that have a duty to protect the public interest, no one else will. It is time to fight on a united front.
4) Forums still open
These provide a vital link for you to express your views and provide the CBA with the necessary information to fight your battles. Please contribute to them.
5) CBA Chambers Representatives.
They are trickling in to all Chambers who have not done so please get appointing.
6) Forthcoming Elections
Nominations are now being accepted for the following:-
- CBA Treasurer
- Two QC posts on the CBA Executive
- Two 7 years and under posts on the CBA executive
Nominations for Election to the CBA Committee
Nominations are invited for election to the CBA Committee for 2013. The positions are for a term of three years commencing 1st January 2013. Please send your nominations to:
18 Red Lion Court
DX: DX 478 London/Chancery Lane
Nominations must be received by 5.00 p.m. on Friday 26 October 2012.
In the event of there being more candidates nominated than positions available a ballot of the membership will be held.
Nominations for Election of Treasurer to the CBA Committee
Nominations are invited for candidates to stand for the position of Treasurer of the CBA. These should be sent to the Secretary:
18 Red Lion Court
DX: DX 478 London/Chancery Lane
Nominations must be received by 5.00 p.m. on Friday 26 October 2012.
In the event of there being more than one candidate a postal ballot of the membership will be held. The position of Treasurer is one of two year’s duration.
Forthcoming CBA Events:
The Kalisher Lecture:
“Experience is by industry achieved”
Given by Martin Shaw, Kalisher trustee and Bencher of Gray’s Inn
Tuesday 16th October 2012
The Royal College of Surgeons
To secure your place please email the Secretary of the Kalisher Trust – [email protected]
CBA Autumn Conference:
Saturday 3rd November 2012
IET Conference Centre, Savoy Place, London
Old Bailey Lecture:
Work of the Sentencing Council
Tuesday 6th November 2012
The Old Bailey
To secure your place please email Aaron
Old Bailey Lecture:
Research on Juries
Tuesday 4th December 2012
The Old Bailey
To secure your place please email Aaron
Health Support and Advice for the Bar – Law Care:
LawCare provides an independent and confidential service which assists members of the Law Societies of England and Wales, Scotland, Northern Ireland, Ireland and the Isle of Man; the Institute of Legal Executives; the Bar Councils of England and Wales, the Republic of Ireland, and Northern Ireland; the Faculty of Advocates in Scotland; the Department of Justice; the Institute of Barristers Clerks; and the National Association of Paralegals. This is a confidential advisory service to help lawyers, their immediate families and their support staff to deal with the health issues and related emotional difficulties that can result from a stressful career as a lawyer, or working with lawyers. LawCare is there to support and assist you, too.
LawCare offers you the opportunity to discuss problems that are interfering with, or have the potential to interfere with, your work performance and / or your family life and to seek to help in resolving these problems.
Through LawCare, help is available to those who are suffering from stress and/or depression, or who have alcohol, drug or other dependency concerns, or eating disorders.
There is a helpline which is open 365 days a year:-
9am – 7.30pm, Monday to Friday
10am – 4pm Saturday, Sunday and UK Bank Holidays
0800 018 4299
Further details can be found on the website here
Follow the chairman on twitter:
Criminal Law Week – updates (issue 34)
Key updates from this week’s issue of Criminal Law Week:
- Dangerous dogs – guidance on the making of contingent destruction orders in respect of dogs bred for fighting: R. (Sandhu) v. Isleworth Crown Court, D.C. (CLW/12/35/4).
- Excess alcohol – whether urine specimen taken by a constable from a catheter satisfied the requirements of section 7 of the Road Traffic Act 1988: Ryder v. Crown Prosecution Service, D.C. (CLW/12/35/1).
- Legal Aid, Sentencing and Punishment of Offenders Act 2012 – new commencement brings provisions into force on October 1, 2012, including provisions relating to costs and rehabilitation of offenders: S.I. 2012 No. 2412 (CLW/12/35/7).
CBA Bookclub Page:
The CBA book club page has just been updated, allowing CBA members to enjoy a 15% discount on the forthcoming editions of Blackstone’s Criminal Practice 2012 and the Blackstone’s Magistrates’ Court Handbook 2013, as well as many other Criminal Law books.
Your exclusive bookclub page can be found HERE
Yesterday, the Bar Council unveiled its plans for a unique new service. BARCO is a third party escrow account which will receive money from clients under a contractual arrangement relating to the ongoing provision of legal services. The payment of funds from the escrow account is determined by this agreement, allowing barristers to offer a full range of legal services without breaching the Code of Conduct and handling client money themselves, making it easier than ever to work with the Bar.
The terms of the Standard Criminal Contracts, which are expected to become available for tender in 2014/15, are not yet known. The current payment terms of the LSC to firms which successfully won contracts in the last tender are not compatible with the current prohibition on handling client money, because the LSC pays in tranches at specified times.
In the event that the LSC defines its funds as client money, as it is currently understood to do, when the next round of Standard Crime Contracts is released for tender, the Bar will need an escrow service if it is to bid for contracts with solicitors within chambers’ existing business structures. The sum of funds involved with these contracts would challenge even the most seasoned accounts manager in chambers. BARCO would provide a simple and cost-effective solution to this problem, as the LSC could continue to pay for services on the same schedule as at present, whilst enabling the Bar to continue to avoid holding client money.
BARCO is applying to be regulated by the Financial Services Authority (FSA) and intends to comply with the regulatory obligations arising from the Payment Services Regulations 2009. All funds are to be held in a ring-fenced account with Barclays Bank. BARCO remains subject to any approval process arising from the new Bar Standards Board (BSB) Handbook.
Welcome to the Blackstone’s Criminal Practice 2012 e-mail alerter service.
The Blackstone’s Criminal Practice 2012 companion website is a unique service offering monthly updates to the main work set out on a chapter-by-chapter basis, as well as links to the full text of available judgments and to relevant legislation.
The September 2012 update has now been added to the site. It includes updates relevant to parts:
A3 General Defences
B1 Homicide and Related Offences
B12 Offences Relating to Weapons
C5 Drink-Driving Offences
D1 Powers of Investigation
D3 Courts, Parties and Abuse of Process
D8 Assets Recovery
D10 Sending Cases from the Magistrates’ Court to the Crown Court
D25 Civil Behaviour Orders: ASBOs, Closure Orders, SCPOs and VOOs
E1 Sentencing: General Provisions
E6 Suspended Sentences under the Criminal Justice Act 2003
E19 Confiscation Orders
E21 Exclusions and Disqualifications
F10 Opinion Evidence
F18 Evidence of Identification
Please click here to view the September 2012 update.
UPCOMING INTERNATIONAL EVENTS AND OPPORTUNITIES
Annual International Rule of Law lecture
18 December 18:00 in Inner Temple Hall
The International Committee is delighted to announce Mark Mulholland QC, Chairman of the Bar Council of Northern Ireland as the keynote speaker at its Sixth Annual International Rule of Law Conference. The lecture will take place at 18:00 on 18 December. This free annual lecture aims to stimulate debate and inspire barristers to become involved in rule of law related projects. Barristers, judges and law students are welcome to attend. The title of the lecture will be announced closer to the time. If you are interested in attending please email [email protected].
Brazil Trade Mission, 22-25 October
The Bar Council is planning to increase its engagement with Brazil which is a rapidly growing market for UK legal services. We are planning a stand-alone Business Development mission in 2013/14. In the meantime an opportunity has arisen as both the Lord Mayor and the Law Society, supported by UK Trade & Investment (UKTI) will be travelling at the same time to São Paulo to promote UK-Brazil legal links and business. The Bar Council is supporting an Unlocking Disputes conference on 24 October in Sao Paulo. For further information please see here.
There will be optional activities in Rio de Janeiro for those wishing to travel on following the São Paulo programme.
As the Bar Council will have a presence at some of the events it would be helpful for us to know if you are registering for this mission; please email [email protected].
Russian Law Week 2012, London
5 – 7 November 2012
The second Russian Law Week 2012 will take place in London from 5 to 7 November 2012. This event, of which the Bar Council is a co-organiser, will bring leading Russian and English practitioners together to discuss the latest developments in Russian Law. This is an excellent opportunity for any barrister wishing to develop their practice in relation to Russia.
You can register and view the draft programme here.
Increasing Access to Justice through E.U. Class Actions: A Conference for Litigators and Policy Makers
12 – 13 November 2012 at the European Parliament Building in Brussels, Belgium
This is a two day conference in Brussels, Belgium and is jointly presented by AIJA, Brussels Bar Association, Netherlands Bar Association, New York State Bar Association International Section, NUIM Law, Pan European Organisation of Personal Injury Lawyers (PEOPIL), Public Interest Law Alliance (PILA); UIA; Universidad de Santiago de Compostela; and Universite Catholique de Lyon. Topics at the conference will include:
- Class Actions, especially as they relate to Enforcement of Basic Human Rights
- Opt-In vs. Opt-Out Mechanisms in Class Actions
- Collective Redress as it applies to the EU and US
- Access to Justice as a Human Right
The conference will also feature several networking breaks as well as a social reception to be held Monday evening at the Renaissance Hotel.
For a full agenda, please click here
For further information regarding registration, hotel or sponsorship opportunities for this conference, please contact Curry Wilson at[email protected]
Other business development news and opportunities
Experts Needed for UNDP/Somalia: Court Case Management and Tracking (Nairobi based)
The ABA-UNDP International Legal Resource Centre (ILRC) has received a request from UNDP/Somalia for an expert to establish a pilot case management and tracking system in Somaliland and Puntland. The program is strongly focused on post conflict recovery and consolidation of peace and the work involves six main components: access to justice, civilian police, local governance, institutional development, constitution and armed violence reduction. The overall goal is to strengthen rule of law, governance and security. The expert will be supervised by the UNDP Access to Justice Project Manager and will be responsible for developing a functional case management and case tracking system in Hargeisa and Garowe.
Please find as an attachment a more in-depth summary of this opportunity and a P-11 form. Applications must include a P-11 form (see attached document), an updated CV and cover letter (each attached as word or PDF documents). The application deadline is 26 September at 17:00 US Eastern Standard Time. Completed applications must be sent to [email protected].
What makes a good witness? Presenting evidence in the courtroom:
Visually-recorded evidence in chief is thought to produce the most comprehensive and accurate record of the interview process and be best evidence. But is this really the case? We are currently conducting a research project examining views from criminal justice professionals regarding the issue of the medium in which evidence in chief is presented. A topic that has driven interesting debate nationally. The research concerns three inter-related areas; (i) your views regarding your perceptions of witness testimony and certain terms that are often used when determining its credence, (ii) your views on the way the police gather information and how this impacts on witness evidence in chief, and (iii) your perceptions of the medium in which evidence in chief is presented in the courtroom. As part of the on-going research we would be grateful if you could take some of your valuable time to complete the questionnaire using the link provided below. It should take about 15 minutes to complete and participation is anonymous. If you would like to discuss this further or for any other information relating to the research and for related publications on these issues please contact either Jemma Hodgkins, [email protected] or Dr Rebecca Milne, Reader in Forensic Psychology, Director of the Centre of Forensic Interviewing, Institute of Criminal Justice Studies, University of Portsmouth. [email protected] or on (+44) 2392 843 927. Thank you for your assistance.
Be part of a study to examine child witness credibility:
If you agree to participate, you will be asked to read a transcript of an interview with a child witness. We will ask you to rate the credibility of the witness and the interview using a number of different criteria. All materials (including information about confidentiality and consent) will be sent to you by email. Once the study is complete, you will be debriefed. On request, we would be happy to send you a summary of the results.
I am an MSc Student studying Investigative Forensic Psychology at London South Bank University, supervised by Dr Anne Ridley.
To participate in this research, please contact Miss Vedrana Ilic on [email protected].”
The Young Bar Conference:
The Young Bar Conference 2012 is being held on Saturday 6 October and registration forms are now being accepted. Please click HERE, for booking information and programme.
The European Institutions: OLAF, EUROJUST and EUROPOL:
What are they, what use are they and could we manage without them? And do we need another one – the European Public Prosecutor?
Thursday 18 October 2012
14.00 – 17.45
Institute of Advanced Legal Studies
Further details and booking information can be found HERE
Annual Bar Conference 2012, 10 September 2012, London Hilton Metropole:
The Annual Bar Conference is the place to learn, debate and look to the future. It is a unique forum for sharing ideas as it is the principal and largest event in the Bar’s calendar.
The theme of this year’s Conference is “The Modern Bar: Accessible, Adaptable and Relevant.” This year we will be considering whether and how the Bar needs to change in order to keep up with a quickly evolving legal landscape. The market for legal services is changing rapidly: business structures are becoming more flexible, competition is ever-increasing, and sources of funding are under pressure as never before. The conference allows the Bar community to have its say and consider:
- How the Bar can continue to be fit for purpose
- How the Bar can anticipate and adapt to new opportunities
- How the Bar can ensure sustainable long term growth in a challenging environment.
The Criminal Bar session continues this theme with its title: “Cutting legal aid: Damaging democracy and killing open justice”.
Please click here to view the complete CBA session, speakers and the whole conference programme.
The early bird rate will be ending on Tuesday 25 September so to book your place at the discounted rate, please click here.
The Slynn Foundation are delighted that The RT Hon the Lord Phillips of Worth Matravers KG, who will retire as President of the UK Supreme Court in September, has agreed to deliver the 10th Slynn Foundation Lecture on Monday 12 November 2012. More details will follow but please note the date.
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