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


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


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


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.


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


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).

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


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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I could not resist this picture from my old mate Charles Christian (@ChristianUncut and Editor of The Orange Rag)  – who keeps an eye on legal technology and this type of world class  marvellous behaviour…

However… all may not be as it seems.  HT to@Anttix for alerting me to this report from Snopes.com

Back tonight with a podcast on criminal law, the criminal justice system and the role of criminal lawyers.  We will also consider the PC Harwood acquittal.  Amanda Bancroft and Francis Fitzgibbon QC will be the guests, as will Carl Gardner if he is not tied up with work.

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Welcome to Without Prejudice with David Allen Green on Contempt of Court. 

“Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court’s authority.” (Wikipedia)  The powers of the judge are significant, as we saw last week when a trial judge used the contempt proceedings to prevent the showing of a BBC drama on the riots of last summer  during the final days of a sensitive ongoing trial on the Birmingham riots.

The powers are designed to uphold the rule of law and preserve the right to a fair trial.

We look at the powers at common law and in the Contempt of Court Act 1981 and illustrate the application of the rules with three important recent cases:  Chris Jeffries, Levi Bellfield and the Milly Dowler murder case and the Birmingham Riots case

Listen to the podcast


Useful references

CPS guidance on contempt under act and common law http://www.cps.gov.uk/legal/a_to_c/contempt_of_court/ – this is good overview
Chris Jefferies
Levi Bellfield/Milly Dowler
The Birmingham riots injunction

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Dear Reader,

I’m not allowed – none of us are – to use the Olympic Rings lest we  demean the value to the corporates who have paid to peddle and promote their not always  healthy products Olympics to our country. There is a delicious irony with  Coke and McDonalds sponsoring ‘the greatest spectacle on earth’.

Fortunately, The London Olympic Games and Paralympic Games Act 2006 et al cannot, I hope, stop me from tastefully laying out my breakfast of fried eggs and baked beans in the shape of the Olympic rings.  A rasher of bacon, artfully laid out below the ‘rings’,  can serve to symbolise The River Thames innit!  – geddit?!!

I am not that interested in athletics or, for that matter, any of the sports in the Olympic games (but hope that those who are into the great art of couch potatoing enjoy the games – my caveat to offer protection:  I would not want Boris The Buffoon popping out of my fridge to berate me for slagging orf t’games).

In a vain effort to get into the spirit of the games, I spent a happy half hour making my own Olympic Torch with newspaper and coloured wrapping paper.  Unfortunately, the end result looked like a GIANT SPLIFF and I came to the view that if I yomped to the caff for my black coffee and newspapers this morning,  carrying my giant spliff – this would likely attract the attention of overzealous bun eating PCSOs or ‘Community’ wardens charged by LOCOG with the important task of protecting the corporate sponsors and their tawdry rights and, in some cases, their tawdry products..

Fortunately, the British do not take kindly to ‘Jobsworths’ or officious behaviour.  There have been a number of excellent stories in the press about over excited ‘community wardens’ and their high handed enforcement.

I particularly enjoyed Stuart Lee’s piece in the Observer this morning – an excellent read and well worth your time: How I was busted by the O—— Advertisement Enforcement Office“It was only an innocent double entendre about rings of fire. But even multi-award-winning comics can fall foul of Olympic censors”

The G4S / private sector security  fiasco rolls on and The Mail on Sunday reports: Minister’s daughter exposes Olympic safety scandal: Stewards made to fake NVQ qualifications and ‘trained’ in one hour at nightclub

Good to see that Adam Wagner of the UK Human Rights blog has apologised for the post on the outlawing of Dawkins in Mississippi.

Adam tweeted:

Outlawing Dawkins hoax wp.me/pJiO3-3PH 9 hours ago

All, apologies for the Richard Dawkins outlawed post – clearly a hoax. I have been offline today otherwise would have responded sooner.

I read the Rosalind English post  analysing the Mississippi anti-Dworkin legislation  on the UK Human Rights blog with mounting amusement.  I simply assumed that Rosalind  was being ‘straight faced’ and continuing with the hoax at first – but then remembered that the UK Human Rights blog is a serious blog and doesn’t do parody.  Laughing in Purgatory – the website which covered the original story, may have been a clue?  Anyway… good on ’em for having the grace to admit they were hoaxed. It was a very believable piece from Laughing in Purgatory and beautifully constructed.

Laughing in Purgatory reported: Mississippi Passes Anti-Richard Dawkins Legislation – a most amusing and very believable report.

RollonFriday has a great film of Dutch advocaats (?)

RollonFriday reports: “Just what are law firm marketing types smoking in the Netherlands? Just a week after RollOnFriday brought an astonishing recruitment video from top Amsterdam lawyers Deterink to a wider audience, another Dutch firm’s viral marketing video has been revealed.

Picture the scene: a bland courtroom in the Netherlands. Enter a host of grim-faced men and women in flowing black robes and white neckerchiefs. Why, it’s the lawyers of Wessel Tideman and Sassen. They line up, as if to pitch to a potential client. Will this be the usual litany of tedious statistics, deals done and so on? Absolutely not…”

Watch the film

Back later with a sensible Without Prejudice podcast  on ‘Contempt of Court’ with David Allen Green.

Have a good one.. the sun has arrived.  Phew wot a scorcha klaxons are available on sale – with no olympic ring marketing – from all good Poundlands

best, as always


Postscript:  I am not prone to texting or otherwise troubling god – but this excellent article about the Bishop of Durham is a superb read.  (My thanks to barrister  James Vine of The Bung Blog – for alerting me to it.)

The Saturday interview: Justin Welby, Bishop of Durham
Bishop Welby of Durham – former oil executive, Libor scandal inquiry member and possible next archbishop of Canterbury – discusses corporate sin and the common good

AND..finally… I’m with Andrew Rawnsley on ‘The Olynkinks’…

This five-ring circus is only for those in love with white elephants

“I wish the best for our competitors, but it is a delusion that the Olympics will make us fitter, wealthier or happier”

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Podcast 214: Andrew Keogh, The White Rabbit blogger,  author and  barrister

Today I am talking to Andrew Keogh, a barrister in practice, author of Twenty Twelve and author of the White Rabbit Blog

We talk of many things – including, Andrew’s writing, e-publishing v traditional publishing, law blogging and social ‘meedja’, Libertarianism (whatever that is) and the state of the nation generally with reference, en passant, to the legal profession.  In keeping with the fine tradition of The White Rabbit blog  – we manage to avoid talking about law altogether!

Listen to the podcast with Andrew Keogh

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The criminal justice system in England &  Wales is under siege.
Many have written about this – so I do not need to repeat the litany of examples in this podcast review post.

John Cooper QC has produced a manifesto for the Criminal Bar Association Vice-Chairman’s position and talks to NorthpodLaw in an excellent podcast which I can thoroughly recommend.

NorthPodLaw describe the contents:
The subjects up for discussion include the BPTC aptitude test and the conflicting interests between the providers pockets and the quality of the candidates; potential strike action; how to get the CBA out of London and engaging with wider Bar; and why the Bar and Solicitors need to be a unified fighting force but not a unified profession.

Listen to the podcast

By the way – To vote, you must be a CBA member and you will need to visit www.criminalbar.com with your membership number to hand.

I see that John Cooper QC, who I have had the pleasure of meeting and podcasting with, has taken up blogging with the wonderfully titled “Shadow of The Noose” blog – and you can read his manifesto for the Vice Chair position at the CBA there

Continuing with podcasts…

Legal Cheek has interviewed Emily Allbon of City University’s excellent Lawbore blog.
Well worth a listen: The Future of Legal Blogging

AND… I have managed to do a couple of podcasts myself in the last week…

Lawcast 213: Carl Gardner on the appointment of Lord Neuberger as president of the UKSC and House of Lords reform

Lawcast 212: Peter Crisp, Dean and CEO of BPP Law School

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I have decided that Mondays are rather tedious – lacking in interest, burdened by the woes of those who suffer from ‘Monday Morning Blues’ and oppressed by the twitter wildebeest stampeding inanely from one outrage to another.

So… in the spirit of The Olynkink games (We are no longer allowed to use the real word – the trademark police have been deployed to oppress us further)… I give you this memorable letter from ‘Our Man’ in overseas territories…. to cheer you up.

By the way – for all those who are critical of the Naysayers..like wot I am about the Olynkinks games… we paid for the games… even those of us who could not care less if a man runs 100 yards in under ten seconds… so, I defend to the death the rights of all to enjoy the games.. or, likely to be far more amusing… and enjoy the fallout to the coalition government of Ms May and her supervision of the G4S fiasco.

Anyway… on to the way our Foreign & Commonwealth Office used to do things…

Lord Pembroke
The Foreign Office

6th April 1943

My Dear Reggie,

In these dark days man tends to look for little shafts of light that spill from Heaven. My days are probably darker than yours, and I need, my God I do, all the light I can get. But I am a decent fellow, and I do not want to be mean and selfish about what little brightness is shed upon me from time to time. So I propose to share with a tiny flash that has illuminated my sombre life and tell you that God has given me a new Turkish colleague whose card tells me that he is called Mustapha Kunt.

We all feel like that, Reggie, now and then, especially when spring is upon us, but few of us would dare to put it on our cards. It takes a Turk to do that.

Sir Archibald Clerk Kerr,
H.M. Ambassador.

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If you’ve heard this story before, don’t stop me, because I’d like to hear it again.
Groucho Marx

Dear Reader,

The Guardian reports on the latest ‘thinking’ from our political masters over at the Ministry of Cheap Justice: ” “Flash incarceration” of offenders who breach court orders, widespread naming online of those convicted, more witnesses giving evidence via videolink and Sunday court sittings are among measures outlined in government plans to speed up justice.”

The crux of the article is that criminal justice minister Nick Herbert MP believes that the present criminal justice system is slow and “opaque, with lengthy, complex procedures which make little sense to the public”… More important to Herbert..” “At over £20bn a year, it is one of the most expensive criminal justice systems in the world.”

Politicians, especially those of a Beserker persuasion partial to a bit of shield munching on the back benches, were delighted with the swift justice which followed the riots of last summer. Orgasmic at the prospect of judges dishing out exemplary sentences in ‘exceptional circumstances’ – the government is planning to ensure that terrorists and other sundry criminals, let into the country by untrained Border Agency officers, or waved through the barriers at The Olympic park by ‘highly untrained’ G4S security people, are dealt with quickly and, hopefully, ‘severely’.

Plans to have ‘single magistrates’ hanging about in village halls to dispense ‘flash incarceration’ worry me.  In fact, as it is Sunday, and a sunny day, I shall say that people like Nick Herbert, hanging about at The Ministry of Justice, worry me…. and on that note… I shall move on to other less serious legal and other matters…

The Law Society Gazette reports: Bar-solicitor divisions ‘music to government’s ears’

Jim Sturman QC warned: ‘By playing the two sides of the profession off against each other… each time the bar scores a point off solicitors, or solicitors off the bar, we cut our own throats as well as each others.’ Divisions between the bar and solicitors are ‘music to the ears of central government’, he said.

Legal Cheek notes that: A DISGRACED former solicitor and his ex-girlfriend caught with large amounts of amphetamines while planning to launch an escort agency will be sentenced next month.

Private Eye, still at the forefront of good journalism, reports: DON’T MENSHN THE ICO…“POOR Louise Mensch. After calling on social networks to identify internet bullies after she was stalked online, the chick lit author turned Tory MP was a touch embarrassed when it was revealed that security flaws on her own newly launched social network meant that it was identifying… everybody”

Worth reading – it would appear that Louise Mensch MP, a lawmaker, is not that clued up about the law applicable to websites and her new social meedja flop.

A quick selection of nonsense from the Tabloids…

The Sun: English football on the brink of civil war after Terry race trial

The Mail on Sunday: No 11 prepares ‘for life after Osborne’: Hague is tipped for job as UK is given 50% chance of losing gold-plated AAA rating

The Mail on Sunday: Judge who let Taliban soldier remain in Britain now allows refugee who raped girl, 12, stay in UK

And I do like this Sunday Mirror headline writer’s take on The Olympics…

It’s pathletic: Police and army seethe as G4S admits Olympic Games shambles

That’s probably enough nonsense for today… back next week with with more podcasts and Law Review Weekly et al.

Enjoy the sun….and the fact, according to the Met Office, St Swithin has never been right since weather records have been kept…

Best, as always


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Lawcast 213: Carl Gardner on the appointment of Lord Neuberger as president of the UKSC and House of Lords reform

Today I talk to Carl Gardner, ex government lawyer and author of the Head of Legal blog.  Downing Street announced the appointment of Lord Neuberger MR as the new President of The United Kingdom Supreme Court – taking over in September when Lord Phillips retires.

We also  examine the reform of the House of Lords and the antics of our political masters this week.

Listen to the podcast

Read Carl Gardner’s blog post: We must say no to this bad Lords reform


I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law School David Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone, BPP Law School 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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Lawcast 212: Peter Crisp, Dean and CEO of BPP Law School

Today I am talking to Peter Crisp, Dean of BPP Law School, part of BPP University College. We examine the developing law programmes at  BPP Law School, the Legal Education Training Review and the changing face of legal education and practice in England & Wales

It is a wide ranging and robust  discussion which, I hope, will also be of interest to practitioners.

Listen to the podcast


I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law School David Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone, BPP Law School 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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One morning I shot an elephant in my pajamas. How he got into my pajamas I’ll never know.
Groucho Marx

With the Olympics but a fortnight away – the news that the M4 is closed, that G4s is unable to perform their £300 million contract to specification and we need to bring the army in to provide further security for the Olympics, that no-one appears to be interested in taking over the great white elephant of the main stadium post-olympics – it would seem that things are going swimmingly well for the coalition government that has been inflicted on our benighted isle.
When one adds the farce of the Lords reform bill this week and long immigration queues still at Heathrow  to the mix, the lack of regulation over Ali Babadiamond and the Forty Thieves at Barclays, Eurogeddon – and the eternal rain – one begins to wonder if it is worth staying alive to go gaga in a care home which I will not be able to afford when (and if) under Duckworth Lewis rules the umpire signals ‘Not Out’ and I am doomed to live yet more rather depressing years in a country run politically by inexperienced Spads and Spivs – the two aforementioned categories of ‘human’ not being mutually exclusive.
I shall do a John Simpson, stock up on suitable pills and be a patriot – and die for my country quietly, lest I be a burden to the new generation of Spads and Spivs which will follow..as surely as night follows day!
Fortunately, I have not gone gaga and only present the early symptoms of grumpy old gittery which, I am advised, is perfectly normal for a git of my age.  So, as they say in the wonderful (and prescient) BBC satire  Twenty Twelve..”that’s all good”… and I shall be around to irritate the legal and other establishments for some time…which, to borrow from The Blues Brothers…I regard as a ‘Mission from God”.

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Guest Post: Simon Walland – Preserving the Quality of McKenzie Friends

McKenzie Friends have been permitted to attend hearings since the early 1970’s and are becoming more and more accepted as an alternative to professional legal representation, but what of the standards and quality of McKenzies?  Only in the last week or so the Court of Appeal upheld a refusal to allow a McKenzie Friend ‘who had been found to have behaved in an intimidating manner towards the mother’.

No regulatory body governs McKenzie Friends
The use of a McKenzie Friend can be a life saver, but if done badly, can also be a life wrecker.  While there is no regulatory body governing their use, the situation can only become more uncertain.  The fact is that anyone can become a McKenzie Friend, and prey on the vulnerable, and let’s face it, the majority of people going through a relationship break-up, loss of house, children and dignity, can be at their most vulnerable.

Most McKenzie Friends have had no training whatsoever, and rely on their own experiences when attending court in their own case as representative of how the courts operate, and however well, or badly they may have done is disregarded as they lead the unwitting litigant into the same mess that they created for themselves.  Being well meaning is not the same as being worthwhile.

Scarcity of McKenzie Friend Training
There is a scarcity of training, and a shortage of McKenzie Friends who are capable and knowledgeable about what is necessary to properly assist a litigant with the court process.
Being a good McKenzie Friend involves being able to provide a variety of skills, from counsellor, mediator, lawyer, teacher, friend, providing moral, emotional and legal support.
Most litigants have startlingly similar stories to tell, often falling into two camps, those that have relied on common sense and a feeling that justice will prevail, and those that believe that standing up and fighting back is the only way forward.  Both usually find themselves in the same position, apart from their children and relying on the courts, and/or CAFCASS to resolve their problems, and realise that they need to deal with things differently, as the typical delays of three months between hearing quickly results in not seeing their children for six months.

How a McKenzie Friend Can Help
A McKenzie Friend is forced to work at a disadvantage professionally to both Solicitor and Barrister, as they do not represent their client, and cannot speak for them in a hearing.  Assisting with paperwork, letter writing, and establishing a strategy which will be effective in countering the problems they are experiencing is essential, and a large part of the assistance is to explain the legal process, what to expect and effectively managing their prospects.  Preparation for a hearing will generally involve writing a Position Statement setting out their case, as relying on the litigant to remember say the right thing in a hearing is tempting trouble.  On the negative side, setting everything down on paper fixes their position, and prevents the fluidity and alternative proposals which can occur once the other party’s case is known.

Negotiation before the hearing and at breaks during the proceedings is often one of the areas in which the McKenzie can bring the greatest advantage.  Counsel will usually appreciate speaking to a McKenzie that is knowledgeable and has reasonable expectations.  Better that then arguing with a litigant that doesn’t understand what is happening to them.

During the hearing, the charm and eloquence of many Barristers, as well as a familiarity with a Judge is an unbeatable obstacle to many litigants, tongue tied, nervous and emotional.  It is no wonder they feel let down and beaten up by the system.  Being able to say the right thing at the right time is the key to a hearing, and although the McKenzie is able to talk quietly to his litigant and encourage them to make responses, by the time the litigant understands what to say the moment has often passed.

Nevertheless, it is clear that Judges in the majority of cases appreciate the benefits of a good McKenzie Friend.  It assists them to conduct the hearing efficiently and avoids irrelevant issues being argued repeatedly and focuses the hearing on what is necessary.  The Judiciary, with few exceptions, do as much as they can to ensure that the litigant is not disadvantaged, and will make suggestions and proposals which will assist.

McKenzie Friend Training
Whilst there is no regulation or governance over McKenzie Friends, Simon Walland has organised a training course to teach aspiring McKenzies how to work with litigants.  The first course will be held in London in September and is almost fully booked.  It is hoped to get together a network of McKenzies that will work together, have a level of understanding and knowledge that will benefit the litigant, and hopefully gain a reputation for being a good McKenzie.

To book or for more information, visit: McKenzie Friend Training Courses

Simon Walland is a Professional McKenzie Friend, as well as being a qualified Lawyer. Simon has been a McKenzie for ten years, and being heavily involved with several charities assisting parents apart from their children.

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The Benefit System: Does the DLA Discourage Employment?
Switalskis Employment Law

People claim Disability Living Allowance (DLA) for various reasons from arthritis, to alcoholism. It is intended to help people to cover the costs of their illness and is not just a benefit for those who are out of work. It is not means tested and is available to all.

How is DLA Connected to Employment?

The last Labour Government introduced an independent medical assessment for those wishing to claim Incapacity Benefit (IB). IB compensates those who are unable to work due to illness. The introduction of this assessment has made it clear that there are many in receipt of IB who are able to work and who should not receive it.

While those who receive IB are all unemployed, the same cannot be said for those in receipt of DLA. The Government however is of the view that receipt of DLA can be a factor that discourages those who are able to work, from seeking employment.

Potential discrimination in the workplace is a further factor that could discourage those who are in receipt of DLA from becoming employed. However there are many legal safeguards to protect disabled employees from discrimination and firms can assist if disabled employees believe they are the victims of discrimination.

The Current System

The current system for assessing DLA is a mainly paper exercise and there are concerns that this can result in a number of claims that are not genuine. In only a small percentage of cases are potential claimants medically assessed to ensure that the information provided on the form is genuine? However, the volume of paperwork that is currently required can have a significant impact on potential claimants, particularly those who are also looking after a sick relative or child. There is little doubt that the system is in need of reform but it is important that claimants with a genuine need do not feel alienated because of the desire to find who should not be entitled.

Plans for Reform

The Government plans to reform DLA by introducing a new form of independent medical assessment which will reduce the number of people entitled to the benefit and ensure that only those who really need it, receive it.

The number of people in receipt of DLA has increased to three million from one million in 1992. This could be because of factors such as medical advances and an ageing population. At the same time there has been a reduction in those claiming IB which could be because an independent medical assessment has been introduced for this benefit. However, it is unclear whether those who have been declared medically fit for work then go on to be in employment or whether they are still claiming other unemployment benefits as well as DLA.

It is not thought that the very existence of DLA discourages employment, however the question has to be asked, whether it is right that those who have had their IB stopped because they are deemed to be fully able, yet are still unemployed, should continue to receive another benefit that is intended to help those with a disability? It is this imbalance that the Government is trying to address while ensuring that the DLA remains in place for those who really need it.

This post was written on behalf of Employment Advice Law who are solicitors in Wakefield

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Newly minted Supreme Court justice Lord Sumption makes some good points with his recent statement that the best lawyers are not law graduatesbut it would be interesting to know what  evidence he has for this broad assertion. It seems to be rather a general and sweeping statement?  Perhaps Lord Sumption has developed a taste for ex tempore extra-judicial statements of a general nature?

Amusingly, Ronald Dworkin has a scathing response to  a Lord Sumption review and it is worth quoting in full from Ronald Dworkin’s Justice for hedgehogs blog –   the source of the quote:

In the course of an otherwise generous review (The Spectator, March 19, 2011) Jonathan Sumption, who is a Justice of the UK Supreme Court, made a damning observation:

[Dworkin] has taken pleasure in throwing rocks into the placid ponds of academic discourse; to such an extent that the life-cycle of a Dworkinian argument is by now quite well-known. It starts with a brutal forensic demolition of some conventional truth, accompanied by a radical alternative theory. Critics then gather round with their objections. Some of them hit the mark with distressing accuracy. Dworkin responds by reducing the size of the target. He jettisons the more striking and vulnerable parts of the argument one after the other, in order to preserve the persuasive force of the rest, rather like the crew of an early steamer cutting timber out of the superstructure to feed the boilers. Gradually, the theory becomes more acceptable but less radical, until the point is reached when Dworkin is no longer saying anything remarkable after all.

I recently asked him for an example of my regrettable but recurring practice. He confessed that he had “somewhat” overstated his position. He didn’t really mean that it was “well-known” that I water down earlier bold claims. On the contrary he meant only that he now remembers having that impression – in the 1970’s – based on his understanding of my first book. Could he remember which bold statements he had the impression that I later retracted? Or any other details about the impression he now remembers? No, it was much too long ago. Justice Sumption will, of course, take much more care on the bench.

Well.. it amused me.

And so…to the law blogs…

I continue my ‘dystopian legal system’ theme from my Law Review Weekly #4 Part 1 with this notification of fraud and world class theft from RollonFriday.com…

There are two new entries from the archive into the RollOnFriday Dodgy Solicitor Top Trumps pack this week.

First up, Simon Morgan, formerly of Milners, Leeds. Ex-office manager Morgan is currently eighteen months into his seven year jail term for stealing an impressive £1.4 million from his former employer. He spent the cash on using private jets and a Ferrari and on expensive holidays.

Second, and long overdue his own RollOnFriday Top Trump is Hogan Lovells’ nightmare Christopher Grierson. The former partner was recently convicted of stealing £1.3 million in phony expense claims from his firm, much of which he gave to his mistress. Given his extensive plea in mitigation, Grierson escaped what could have been an extremely stiff sentence, but will still serve three years.

And Legal Cheek is on the boil with this story: EXCLUSIVE: Drug Possession Pupil Barrister Henry Mostyn Is Rejected For Tenancy. Clearly..being the son of a famous high court judge – Sir Nicholas Mostyn – was not a plea in mitigation.

It is, of course, not unknown in the legal profession for lawyers to enhance their performance by self medicating with alcohol and taking coke and other illegal highs.  Being caught by Police in possession of  cocaine is not a career improving move.  Legal Cheek reports: “As Richard Todd QC put it while defending Mostyn at his May Bar Standards Board (BSB) disciplinary hearing: “The caution [given by the police to Mostyn when he was caught with the drugs] itself has an impact – it will have a bearing on future applications, whether for [crown court] recorder or Queen’s Counsel.”

And on that note..on to more legal matters…

Following the report of the BSB on advocacy – scathingly ripped apart by Richard Moorhead (referred to in Part 1) – Legal Futures reports: Judges “warming up” to QASA as row over solicitor-advocates rumbles on

I followed the debate in the House of Commons on Lords reform yesterday and was struck at how badly flawed the proposals are.  The principle of electing members of the ‘upper house’ is a good one – but the proposals for a 15 year term, to quote just one part, let alone difficulties surrounding  primacy of the two houses and the lack of a referendum reveal a lack of clear thinking and, one suspects, an element of haste for vainglorious Liberal-Democrat political legacy and glory?  Clegg was described as a ‘struggling sixth form debater’ by one twitter ‘observer’ – and, I have to agree.  It was not an impressive performance.  Rather woolly.

Carl Gardner, on his Head of Legal blog – puts the boot in with elegance and precision of thought: We must say no to this bad Lords reform

Carl Gardner begins with…“Walter Bagehot, in his high Victorian classic The English Constitution, wrote that the danger of the House of Lords certainly is, that it may never be reformed.”

I suspect that reform may be kicked into  the long grass tonight by the Tory rebels et al – not a matter over which I shall lose much sleep given the rather more pressing problems facing the country at the moment which require mature political thought and action.

The UK Human Rights blog reports: Supreme Court dismisses self-incrimination appeal
Philips v Mulcaire [2012] UKSC 28 – read judgment.  The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.

@Bretttechlawyer has an interesting piece on his blog: Accountants win in the Board Room – also not taught at General Counsel School

In England, the accountants rule. But it’s the lawyers who are dominant in business in the United States*. I work in England under the rule of accountants and they call the shots in business here. For a profession that has zero television shows made about it accountants really do command a lot screen time in the office and in the board room. But “LA Accountant” is never going to make prime time.

Meanwhile.. over at Family Lore…John Bolch asks: Can divorce lawyers stop wives from cutting up their husbands with chainsaws?

JohnBolch writes: “This advert by Dresden-based lawyers Hannig, Ahrendt & Partners is apparently causing something of a stir in Germany. The slogan that appears after the woman drops the chainsaw reads: “This wouldn’t have happened with a divorce lawyer.” Hmm…”

Obiter J has an interesting analysis on the riots of last summer: August 2011 Disorder ~ Judicial and Court ~ Statistics

There are three kinds of lies: lies, damned lies and statistics.”  The phrase is something of a warning to exercise care when reading statistics.  Nevertheless, two interesting statistical offerings from  the Ministry of Justice and one from the Attorney-General’s Office are worthwhile reading.  Make of them what you will.

Obiter J also reflects on the Libor scandal: Can the law nail the Libor bankers?

“I love the law,” said UpTights today. “Makes me skip to work in the morning. Gives meaning to my life. Colour to my soul. Feeds me from the first to the last. You know, without the law, I am nothing.”

Babybarista: I love the law

“Proof that as the Olympics grow ever closer the authorities are losing whatever grip on reality they may ever have  had came yesterday with an electronic cigarette.”

The White Rabbit investigates The Case of The Electronic Cigarette

Bizarre… indeed.


Recent podcasts

Lawcast 211: Giles Peaker of the Nearly Legal blog on housing law and the changing legal world.


The Guardian

Lawyers decry government plans for ‘flexible courts’ to speed up justice

Supreme court president to be confirmed by No 10 within weeks
My money is on Lord Neuberger MR

John Terry trial: Twitter’s contempt for the rules

‘Secret justice’ bill will mean no justice at all

Shami Chakrabarti: National security doesn’t mean we should jettison our proud tradition of fair trials – peers must oppose this bill

Clive Stafford Smith: ‘The jury system in this country is utter insanity’
The lawyer and founder of Reprieve on defending clients on death row, why the whole justice system is flawed – and his fear of appearing sanctimonious

LegalWeek: CC takes on double Libor role for Barclays and RBS with Chinese wall
Clifford Chance (CC) is advising both Barclays and the Royal Bank of Scotland (RBS) on the fallout from the Libor scandal, with a Chinese wall set up to avoid potential conflicts.

Legal Week: A little more collaboration
Alex Novarese on Legal Week’s move to work on a ‘preferred partner’ basis with Chambers and Partners…

Law Society Gazette: Freshfields and Linklaters dampen magic circle celebrations
Magic circle rivals Linklaters and Freshfields have recorded modest financial results to end a week of announcements by the UK’s biggest firms.

Law Society Gazette: Legal Ombudsman delays complaints publication

The Lawyer: Firms have well-publicised diversity programmes – but they’re not working, InterLaw finds

The Times (£): Cohabitees ‘should get more rights’

The Times (£): Lucy Scott-Moncrieff takes the helm at the Law Society


Professional Update
Thursday 05 July 2012
This week’s issue features diversity reporting requirements, PII practice notes, new president, and more.

Law Society annual review and financial report

Help shape our library services and win M&S vouchers

Sponsored by CILEx

49th CILEx President calls for independent practice rights

Higher Apprenticeship in Legal Services
Industry to benefit from government funding for new Legal Services Higher Apprenticeship.

Bar Council news

School Pupils Gain Taste of Life at the Bar
9 July 2012 – The Bar Council, which represents barristers in England and Wales, will this week host the sixth annual Bar Placement Scheme in conjunction with the Social Mobility Foundation. The scheme enables talented state school students to spend a week undertaking work experience with barristers’ chambers and attending talks, workshops and a reception hosted by the Chairman of the Bar, Michael Todd QC, and the Chair of the Bar Council’s Social Mobility Committee, Taryn Lee QC.

Bar Council Chair Condemns Secret Court Plans
9 July 2012 – As the House of Lords prepares for the Report Stage of the Justice and Security Bill, the Chairman of the Bar Council, Michael Todd QC, has condemned the Government’s planned extensions to the use of Closed Material Proceedings (CMPs), endorsing the arguments of Liberty, Reprieve and the Special Advocates who participate in these proceedings.

And I leave the more mature male readers with the news from the humourist Barry Cryer – that he continues to take Viagra to stop him rolling out of his bed…

AND…this, without much doubt, is probably the BEST transcript of court proceedings in a criminal case you will ever read.  Class!

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