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Archive for July, 2012

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Mr Nit Romney doesn’t really ‘get’ Britain…which is just fine and dandy with me…. Yeee…Ha!!

And… in other news… Britain’s LOCOG cracks it and goes for GOLD!

Thank gawd for the British Army – who, it has to be said, have pitched in when some of them could have been on well earned leave after very recent Afghan deployment

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Lawcast 218: John Cooper QC on the #Twitterjoketrial judgment

The judgment in the #twitterJoketrial is an important one for Paul Chambers who has been acquitted and can now get on with his life without the stain of criminal conviction hanging over his head.

Not given to hyperbole or persuaded by political grandstanding – I am interested in the hard law behind the judgment, why the decision is so important for ‘freedom of speech’, whether the DPP was misconceived  in bringing the prosecution as solicitor David Allen Green has stated (in fact he went further and described it as ‘disgraceful’ in an interview with Head of Legal blogger Carl Gardner), and whether the judgment really clarifies the law for users of twitter.
I am also interested in the change in legal thinking throughout the appeals – the arguments advanced by Ben Emmerson QC not finding sufficient favour at an earlier stage in the appeal process.  John Cooper QC was brought in for the final appeal before the Lord Chief Justice, Lord Judge.

The role of counsel in very public cases of this nature often goes unnoticed.  Counsel tend not to stand on the steps of the court to make televised announcements to the public – so for that reason and to get ‘counsel’s opinion’ on the matter I am talking to John Cooper QC who led the legal team before the chief justice Lord Judge.

I am not that impressed with Louise Mensch MP’s comments to Carl Gardner that the DPP should account to MPs who now appear to want to tell him that he got the decision wrong.  I am, however, impressed by Louise Mensch’s support for Paul Chambers’ cause. Her contribution is and was valued. Louise Mensch was the victim of some very nasty personal threats on twitter and gave her support to Paul’s cause freely not simply because he is now her constituent. Political sniping and teasing Louise Mensch on twitter goes with the territory of being an MP (and she is more than able to deal with that!) – personal threats to her or her family do not.  On the question of the DPP being called before the Select Committee –   I liked Carl Gardner’s take in response to Mensch’s political point…and I quote “The DPP’s also entitled to tell them (the MPs) that he makes his own mistakes – not those politicians tell him to make.”

This is a landmark decision for human rights, freedom of expression and common sense.  No-one will ever again, John Cooper QC says, have to go through what Paul Chambers went through as a result of a joke on twitter

Listen to the podcast

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Useful materials

The Judgment in the Twitter Joke Trial Case
Paul Chambers v Director of Public prosecutions [2012] EWHC 2157

David Allen Green’s archive on The Twitter Joke Trial

Carl Gardner on the twitter Joke Trial

The “Twitter joke” trial: why on earth did the DPP pursue this case?

Chambers v DPP: the judgment

“Twitter joke” appeal: interview with Paul Chambers’s legal team

John Cooper QC explains his strategy on his Shadow of the Noose blog

The Twitter Joke Trial: The Punch Line.

Statement from the CPS

The statement below from the CPS has now been taken down from the CPS website pending review – I am reliably informed –  Charon/(Mike)

Paul Chambers case

Some reports in recent days have been misleading about the decision making process in the Paul Chambers case.

The DPP was not the decision maker in this case, nor did he ‘overrule his subordinates’. At one stage, consideration was given to conceding the appeal, but as a matter of law this was not possible because the key finding of fact in the case was a finding of the Crown Court, which only the High Court could overturn.

CPS report

I understand that a ‘clarification’ of the CPS is due.  The CPS statement certainly does not reflect informed commentary last Friday – so it will be interesting to see which reports were ‘misleading’.

Clarification statement from the CPS

30/07/2012

Clarification on decision making in Paul Chambers case

The DPP was not the reviewing lawyer in the case of Paul Chambers, but in June he did instruct the team managing it to consider conceding the appeal. This was considered and progressed, however, at a later stage the DPP was advised that, as a matter of law, conceding the appeal would not be possible. This is because it was not possible because the key finding of fact in the case was a finding of the Crown Court, which only the High Court could overturn. The DPP accepted that advice and reluctantly agreed that the appeal had to proceed.

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Lawcast 217: Alex Novarese, Editor in Chief Legal Week – the changing legal landscape

Tonight I am talking with Alex Novarese, Editor in Chief of Legal Week.   The legal world is changing.  Legal news reporting  is changing – the way legal services are delivered is changing  and even the Bar is getting in on the act to compete for work.

Alex Novarese will not, I am sure, mind me saying that he has observed this process for some time as editor of Legal Week and continues to do so as  Editor in Chief.  We’re going to look at some of these changes and consider whether the so called new dawn of legal services is a good thing.

Listen to the podcast

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I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law SchoolDavid Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone, BPP Law School, Brecher Solicitors and Cellmark for sponsoring the  the free student materials on Insite Law – appreciated.

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Lawcast 216: Clare Rodway, MD of Kysen, on PR and marketing for law firms

Today I am talking to Clare Rodway, managing director of Kysen | Professional Services PR.  Public relations, reputation management and putting the message out is as important to law firms as it is to any other business.  Clare Rodway and her team have built a good reputation in the legal sector. Our discussion was wide ranging – the meaning of PR, the distinction between PR, marketing and advertising and the value of social media and blogging to law firms.

Clare Rodway also writes her own blog – The Conversation: an interesting concept based on conversations she has had with lawyers and others that week.

Listen to the podcast

Clare describes her blog thus:


The idea behind The Conversation is to do exactly what it says on the tin really
– to capture some of the most interesting conversations I have in the course of my work. One of my clients once asked me, “What happens if you don’t have any interesting conversations in a week?”! I was stunned, because I can’t think of a week that has gone by WITHOUT fascinating conversation. More often I have difficulty choosing which one conversation to highlight above others. His comment made me realise that perhaps I am quite privileged to meet so many interesting people and be privy so many original ideas and thoughts.

Part of it, I’m sad to say, is a function of age. Quite simply, I have been around a long time: more than 20 years in the legal profession in marketing and PR roles – 12 of those in-house, in four different law firms, and 5 of those studying part-time evening for an LLB.  So my network goes back a long way and includes solicitors, barristers, academics and journalists covering almost every corner of the profession.

Hobby horses are marketing and communication strategy as you’d expect, and linked to that ‘legal market change’; I also have particular interests in human rights (we have close links with Amnesty); City and financial regulation (something’s got to be done!); and anyone with anything new to say in the field of dispute resolution, whether in the context of personal or commercial relationships.  I also have a passion for the arts, particularly film, and this sometimes seeps into the blog.

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I had lunch with Clare recently – and she has written a brief account of our ‘conversation’.  I would like to point out that working with Charles Prior, then CEO of BPP Holdings PLC, which led to the founding of a continuing education company and, subsequently, BPP Law School was a most enjoyable experience.  I sold my interest in the continuing education side as part of an agreement to work with BPP Holdings to set up BPP Law School and break into the GDL and vocational training (LPC and BPTC) sector. BPP Law School has gone on to be one of the leading law schools and, I have no doubt, will continue to do well under the present team.  One further ‘correction’ – I have declined honorary awards; one this year and two last. While the offers were kindly made – I am not a fan of honours or awards,  but I am always delighted when others receive them.

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Lawcast 215: Francis Fitzgibbon QC and Amanda Bancroft on Criminal justice

My guests today are Amanda Bancroft, author of the Beneath the Wig blog and Francis Fitzgibbon QC, a leading silk and author of the Nothing Like The Sun blog

We look at the criminal justice system.  Topics include – the role of the prosecution and defence counsel, ‘How can you defend someone you know to be guilty/unpopular defendants’, overview of the rules of evidence designed to ensure a fair trial, the role and power of the jury, contempt of court laws and the recent verdict in the PC Harwood manslaughter case.

Listen to the podcast

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I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law SchoolDavid Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone, BPP Law School, Brecher Solicitors and Cellmark for sponsoring the  the free student materials on Insite Law – appreciated.

In association with The Lawyer

With thanks to the Law Society for sponsoring the  Law Review Weekly  and my Lawcasts

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The Creation

BY Professor R.D. Charon LLB (Cantab), BCL, Ph.d,  FRSA
Emeritus Professor of Jurisprudence, University of The Rive Gauche, London Faculty, London

Author: “Legal Nihilism: Taking Rights Seriously, seriously”, Maninahat Press, 2009

While I marvel at the ability of regulatory committees to achieve anything of value, The Bar Standards Board, enthused, possibly, by that great festival of corporatism The Olympic games, have gone for Gold with their proposals to introduce a Bar Course Aptitude Test (BCAT).
Prologue

1. In the beginning Mammon created the law and the Bar

2. And  The Bar was without form, and void; and darkness was upon the face of the deep. And the Spirit of mammon moved upon the face of the waters.

3. And Mammon said, Let there be a Bar Standards Board to regulate all the barristers: and there was  The Bar Standards Board.

4. And Mammon saw the light, that it was good: and Mammon divided the light from the darkness.

5. And Mammon called the light barristers, and the darkness he called those wishing to be barristers. And the evening and the morning were the first day.

6. And Mammon said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters.

7. And Mammon made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament with a Bar Course Aptitude test: and it was so.

I have no idea how The Bar Standards Board cooked up their idea of a Bar Course Aptitude test – but it amuses me to think that it may not have been far from the imagined description above – judging by the plans in place thus far.

A number of points  come to mind.  I address these seriatim:

1. There is no room at the Inn.  There are too many Bar students pushing at the door and frightening the existing members worried about being handed a SAGA holiday brochure by the senior clerk in their early fifties if the thrusting young are not held at bay.

“And Lo”… the éminence grises of The BSB  pronounced the creation of the Bar Course Aptitude Test (BCAT).

2. Competition Law, unintended consequences or even fairly straightforward out of the box thinking not being on the  agenda, presumably: The BSB has gone for an aptitude test which has, Neil Rose of Legal Futures reports, been “set at a level that aims to weed out the bottom 10% of candidates.   The Damoclean sword has been replaced by a bacon slicer.

3. It would appear that a law degree is not a sufficient test of ‘aptitude’ to be a barrister.  Curiously, The BSB  has decided, in its wisdom, not to test English as part of this aptitude for the time being.  One can only surmise that they are rather keen to ensure that the many students from overseas (who return to their own countries and are not a burden to our sceptred isle or the angst of the practising Bar worried about the horde at the gates) continue to come from overseas, pay the fees to them, the Inns and law schools, and then return to their own countries?  I would not wish it to be thought that I suffer from gout to come to such a surmise.

The alternative, possibly rather too radical, proposition of making the Bar Professional Training Course  more difficult to pass – which would probably  achieve the same reduction of numbers objective, give all students a fair chance to take the exam and  benefit the general public onto which the thrusting young barrister is unleashed  – does not appear to have survived the bacon slicer thinking behind the BCAT creation process.

Interestingly, The Bar Standards Board appears to have invented a good old fashioned bogeyman to head criticism off at the pass with this statement – taken from Neil Rose’s report:

Some 64% pass all modules of the BPTC at the first attempt. The application says that as well as showing that “students are admitted who are not capable of passing the course after the one year of academic study for which it is designed”, their presence “immensely diminishes the quality of the learning experience for the class as a whole”.

At the risk of being burned at the stake for apostasy by the éminence grises of The BSB – I would imagine that students with poor English skills being allowed onto the course, may well have a more ‘diminishing the quality of the learning experience for the good guys effect’?  But be that as it may.  Aptitude in English is not a required aptitude for practice at The Bar for the purposes of the bacon slicing designed to repel boarders at the gates of heaven.

I fear that Chris Kenny may have been reading too many editions of Private Eye with this wonderful piece of BBC Burtspeak taken from the Legal Futures article. I sympathise.

LSB chief executive Chris Kenny said the very fact that the test has not operated in practice, other than in limited pilots, means it is “impossible to verify in absolute terms” what impact the test will have on issues such as diversity, and the number or competence of barristers.

“This uncertainly has a material impact on our ability to reach definitive conclusions, both about the impact in relation to individual regulatory objectives and better regulation duties, and our assessment of the broader impact on the overall public interest,” he said.

But it isn’t all bad news: Neil Rose reports BSB chair Baroness Deech saying that far from breaking new ground, the BSB was late to the idea of aptitude testing. “Medics have been doing this for years without any adverse impact on race and class,” she said. Overseas legal bodies also used it, she added.”  So to borrow from the BBC’s excellent Twenty Twelve …”That’s all good”.

And…and at least fee income is being considered – a priority in these dark days..

The BCAT will be in place from this September ahead of applications for the 2013 Bar professional training course opening in November. The application fee for the test will be about £67. All students will be told their scores, but the information will not be passed to course providers.

I am, it has to be said, a bit baffled by the kafkaesque last sentence – “All students will be told their scores, but the information will not be passed to course providers.”  I can only assume that those who failed will be ‘disappeared’ or be given the keys to the library where a revolver and a whisky await, provided at no extra charge. ?

Perhaps I shall telephone the BSB to find out how cunning that latter part of the plan is and what the sentence means in practice.

On that note – given that it is unlikely my colleagues from the world of academe and practice will be able to pull any more stunts over the Long Vacation requiring my analysis, I bid you leave.

If you are short of material to read over the Long Vacation – may I suggest, without irony, my greatest work (infra)  which my brother Charon QC describes thus “If you thought that Shades of Grey was amazing…this mind  ripper will alter your mindset forever.”

I am not quite sure what he meant.  When I first asked him to review my book he replied with the famous aphorism of Sir Maurice Bowra when asked to review a book – “Be sure, I shall lose no time in doing so.”

Professor R.D. Charon LLB (Cantab), BCL, Ph.d,  FRSA
 Author: “Legal Nihilism: Taking Rights Seriously, seriously”, Maninahat Press, 2009

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Note by Charon QC

My brother has ‘issues’ with the legal establishment.  I have found it better to humour him than engage with him in reasoned rational argument – for therein lies the sort of ‘mania’ experienced by some legal commentators on twitter when they engage the libertarians, trolls and shield munchers.

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