Archive for July, 2012

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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It can only be a matter of time, surely, before the fraud cops get their men and women in the City for the LIBOR – and who knows what other –  frauds?   HT to Tom Kilroy @kilroyt for the link to this appropriate pic on twitter (left).  It appears that this photo has, in fact, been photoshopped – but it is still an amusing comment on the Barclays fraud – but not as amusing as this one (right).

Libor Scandal: UK Serious Fraud Office will launch investigation into rate rigging

Synonyms for the noun ‘amateur’ include:   dilettante – dabbler – lover – fancier

It is a fair assessment  of the MPs questioning Bob Diamond at the select committee last week to describe their efforts as ‘amateur’.  While a few good questions were asked – there are reports on twitter that lawyers were sending tweets to MPs suggesting questions to ask – the questions lacked precision and cohesion and were doomed, inevitably, to fail to reveal Bob Diamond as anything other than a banker coached in how to not answer questions with a side specialism in selective memory and hyberbole expressed in his repeated statements of ‘love for Barclays’.

Parliament has gone on, inevitably with the Tories in power , to arrange for the investigation into the LIBOR fraud and corruption in banking generally to be handled by a select committee of amateurs – declining the opportunity to have the matter dealt with by a judge assisted by a lawyer skilled in the art of questioning  leading to a greater likelihood of laying bare some semblance of truth through techniques of forensic legal excision.

John Thurso, the bearded Liberal Democrat ex-peer, intending to be critical of Diamond, inadvertently summed up the ineffectiveness of the MPs questioning thus: “If you were an English cricketer I think you would be Geoffrey Boycott – in occupying the crease for two hours I’m not sure we’re any further forward.”

Something is rotten in the state of Denmark.
Hamlet (1.4.90), Marcellus to Horatio

Trust in the great institutions of the British establishment is, clearly, on the wane. 

The MPs expenses fraud added to the lack of trust and respect we have for our ‘political masters’.   The power of the Church of England, despite the absurd presence still of many Bishops in the House of Lords in 21st century Britain, has waned as we have become more secular and atheistic as a society and, increasingly, there are concerns about the legal system and the rule of law which in part underpins the working of our society.

Government is inflicting great damage to our legal system with the ‘cuts’.  Legal aid is being taken away from the more vulnerable members of our society.  The secretary of state for justice and lord chancellor, Ken Clarke, is believed by many criminal law practitioners, particularly at the Bar, to be on a ‘mission from God’ to destroy the criminal justice system and weight the odds in favour of the prosecution and the courts.  The government applauded last year as our judges accepted the political requirement for swift justice in the wake of the riots – and many would argue that our judges stepped up to the plate badly and handed down sentences disproportionate to the harm and rather more severe than sentences for similar behaviour outside the context of ‘riot’.  It is hardly surprising that many question the fairness of sending a young person to prison for looting a £3.50 bottle of water when we cannot manage to prosecute very much more serious corporate and banking fraud.

 “We are very bad at prosecuting financial crime in this country,”
Mr Clarke said in an Interview with Radio 4’s Today programme.

The Telegraph reports: Kenneth Clarke has said that it is easier to “get away with” financial crime than practically any other kind.

Alex Bailin QC writes in the Guardian: The law catches up with Libor
“The process for setting Libor is pretty much unregulated. That will have to change”

There are plans to engage in an orgy of swift justice, should it be necessary to bring villains and others to justice during the Olympics.  Ironically, there are suggestions that some of our courts will have to close during the Olympic period because ‘Olympic chiefs’ will be wafting around London in the new Olympic ‘Zil’ lanes.

The Mail on Sunday reports this morning that serious villains who are currently being entertained by Her Majesty’s prison authorities are being moved quietly out of London lest, inspired by watching the pole vault and high jump,  they escape during the Olympics (below).  It appears that we won’t have enough Police – another problem with government cuts – to catch these escapees.  The Police will be too busy ensuring that visitors to the Olympic games don’t engage in rioting, general affray and that most heinous of crimes –  interfering with Corporate sponsor rights by bringing non sponsor bank  credit cards, pepsi-cola and Wendy burgers into the Olympic Park.

London’s criminals to get a break during Olympics as courts close
The Independent reports: Services to be cut by half during Games over fears that transport delays will prove too disruptive

Joshua Rozenberg has wheeled himself out to comment, rightly, on the plans for swift justice:
Courts unprepared for Olympics, warns top solicitor

In the wake of the experience last summer, I will not be surprised if newspapers report, two months hence, that the ‘swift justice’ plans further erode trust in the English criminal justice system.  I hope to be proved wrong.

Charlie Gilmour, son of Pink Floyd band member, has an interesting article in the Mail on Sunday today – commenting on his time in prison and the disenfranchisement of many young people who were caught up in the riots and ‘swift justice’ of last summer

Faith in our legal system rests, to some extent, on a good understanding of how it works. 

Cheryl Thomas, professor of judicial studies at University College London’s faculty of laws, has an interesting article in The GuardianLack of understanding about the judiciary is unacceptable and dangerous

A video of her inaugural lecture, Purple Haze: The Danger of Being in the Dark about Judges can be found here

I  very much welcome greater openness on the judiciary.  Gone are the days of automatic deference to authority – thankfully.  Much has already been done to open up our justice system.  Parliament is televised routinely.  We can watch proceedings in The Supreme Court on television.  There are plans to televise other trials – or parts of them.  Professor Cheryl Thomas is right – we do need to scrutinise the judiciary more closely.

The lack of judicial studies in the UK is unnecessary, unacceptable and dangerous. Amid growing media attention on the political role of judges, the British judiciary has become more open, often speaking publicly about important social issues. It is now time for the academic community to develop judicial studies in Britain so it too can contribute to a better functioning justice system and better public debate about the judiciary.

Professor Cheryl Thomas

It is bad enough when government inflicts wounds to the legal system.  It is, arguably, even worse when the profession indulges in ‘self harming’ through incompetence.

Professor Richard Moorhead writes scathingly about the recent efforts of The Bar Standards Boards in relation to their findings on Advocacy: Bar Standards Board’s ‘research’ is crass and deeply flawed

“Barristers think higher court advocates aren’t much cop. Let’s not pretend that’s a reliable indicator of their quality”

Professor Moorhead continues…

The debate on criminal advocacy standards has been a fraught one. It is a debate about quality and the public interest, but it is also a debate about territory, and which profession gets to dominate the criminal defence system. Given the temperature of the debate, one would expect any independent regulator to take a forensic, principled and evidence-based approach to the resolution of the problems posed by intra-lawyer rivalry.

It is against this background that an astonishingly crass piece of research has been published by the Bar Standards Board, the Bar’s independent regulator. The Board’s chair, Baroness Deech, says the research provides, “a robust evidence base as to the high level of concern about advocacy competence in the criminal courts.” The solicitors‘ representative body, the Law Society’s CEO, Des Hudson describes it as “deeply flawed [and] self-serving research… It simply gave participants an opportunity to express their prejudices and self interest.”

And finally.. for this cheery snapshot of a possibly dystopian legal system for modern Britain – The Bar Standards Board has run into a few problems in relation to the new Bar Professional Training Course.  I spent an interesting Friday and Saturday afternoon talking to lecturers, students and others on the problems which have arisen on the new centrally set BPTC.  I now plan to go further into this topic and I have written to Janet Pugh of the Bar Standards Board for her thoughts on how the BPTC has gone this year. I have started to write to the deans of the law schools providing tuition for the BPTC.

It may be that the problems are ‘teething problems’.  It may be that they are not and reveal a systemic failure which goes beyond minor incompetence.  I shall try to find out.  I suspect that this will take some time. Having founded BPP Law School with BPP Holdings plc and a team of my academic colleagues in the early 1990s – I retain an interest in legal education and, particularly, into instances where students are unfairly prejudiced by providers and regulators – should activity of this nature come to light.

Alex Aldridge in Legal Cheek has flagged up some of the concerns: EXCLUSIVE: BPTC Students Point Finger At Bar Standards Board Following ‘Disastrous’ And ‘Unfair’ Exams

Part 2 and 3 of Law Review Weekly will follow on Monday….

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