Wednesday, 24 April 2013

Advocacy Teaching Blog

I noticed the other day that one reader was following the Advocacy Teaching Blog. I hadn't seen it before, and I'm not sure how long it's been going, but there's already a wealth of information there.

It's administered by Assoc Prof Chris Behan (Southern Illinois University School of Law), Prof Charles H. Rose III (Stetson University College of Law), and Assoc Prof Hugh Selby (Australian National University).

Although some of the articles have a focus on North American practice that might not directly apply in the Australian context, there are enough similarities for most of them to be good.

For example, a random post I looked at on control of witnesses suggested a couple of good key phrases for calming down a recalcitrant witness who won't answer questions as asked. (One of the things I liked about this were the examples, similar to Mauet & McCrimmon's Fundamentals of Trial Technique, which tells readers how to go about the task, with specific examples of questions, rather than just what they want to achieve.)

And there's an Agony Aunt section for asking questions of the hive-mind at work on this blog!

And another advocacy resource I came across is a YouTube channel set up by the National Institute of Trial Advocacy. NITA was responsible for the Irving Younger videos at Boulder, Colorado, that probably many of us have seen once or twice over the years. None of these free videos I've seen so far are quite so entertaining, but they're interesting nonetheless.

Monday, 22 April 2013

Justice Legislation Amendment Bill 2013: donations again available for undertakings

Parliament introduced the Justice Legislation Amendment Bill 2013 last week.

Part 6 of the Bill introduces perhaps the most significant amendment. It will overcome the effect of the decision in Brittain v Mansour [2013] VSC 50. That was the case which held charitable donations and the like were not valid as special conditions of adjourned undertakings imposed under ss 72 and 75 of the Sentencing Act 1991. )I discussed the case in my post here.)

The Bill proposes two sets of changes to overcome Mansour.

First, amending ss 70, 72 and 75, expressly permitting for donations to be set as special conditions to adjourned undertakings, whether with or without conviction.

Second, inserting a new section 149A that simply says, "Schedule 4 has effect." This seems to be a new-ish trend from Parliamentary Counsel to add in validating provisions in legislation.

Schedule 4 is intended to validate any previous adjourned undertakings (and CCOs too, for good measure) which had a donation special condition. Knowing now what we do about the validity of judgments which might have been subject to error — discussed in DPP v Edwards here — it's perhaps not needed, but for the sake of avoding doubt, they've added it. It seems the most likely purpose is to prevent appeals by other bodies that might want the money to go to them, rather than charities, as happened in Mansour.

The Bill has progressed to second-reading stage in the Legislative Assembly, with resumption of debate scheduled for the next sitting on 7 May. After it's passed there, it moves on to the Legislative Council. Both Houses are sitting 7 - 9 and 28 - 30 May, so my guess is the Bill won't receive Assent until June some time.

Thursday, 4 April 2013

Thomson Reuters ProView

For many months now I've been meaning to do a short screen cast reviewing ProView on the iPad, as a follow-on from my review last year about LexisNexis's eBooks on Bluefire Reader. (Sadly, nothing's improved there, and they're still not as satisfactory as they could be.)

Easter provided a brief opportunity, so here's my short review of ProView.

In short, if you have a choice where the content is much the same from Thomson Reuters or LexisNexis, then there really is no choice. ProView wins hands down, and is without doubt the iPad app of choice for legal ebooks.

Wednesday, 3 April 2013

Independent Bar an endangered species?

A significant debate seems to be occurring in the UK at the moment, though from 12,000 miles away it's hard to quite know what it's all really about or how it might finish, and whether it might have any effect here in Australia.

But, if the concerns are legitimate — and there are enough informed participants who say they are concerned to suggest there's merit to that concern — then the independent Bar might be about to disappear from the UK legal landscape

What's so important about an independent Bar?

When I went looking for a nice pithy explanation of this, I struggled to find one from all the places you'd expect to find one. Lots of Bars from across the Commonwealth explain what barristers do, and how they do it, and how they operate, but there aren't very many descriptions of why an independent Bar is a good thing.

The main reason is that the independent Bar is independent, and subject to the cab-rank rule. The two are related and depend on each other. An advocate is supposed to fearlessly protect their client's interests, even to the advocate's detriment, so long as they don't breach their overriding duty to the Court.

And lest barristers chose to only represent the easier and more pleasant client, they are obliged to provide that independent representation for any brief offered in their area of practise at their usual fee if they are free.

At his swearing in, at (1952) 85 CLR xi, Dixon CJ said about the independence of the Bar:

But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.

Ysiah Ross in Ethics in law cites Erskine, quoted by Lord Pearce in Rondel v Worsley [1969] 1 AC 191 at 275:

From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arrainged in the court where he daily sits to practise, from that moment the liberties of England are at an end.

And at 227, Lord Reid said:
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case.

The cab-rank rule is intended to protect the independence required of the Bar, removing the need to justify or defend representing what might seem apparently unreasonable or apparently hopeless cases, and instead guaranteeing representation for everyone at law.

There are a few other reasons why solicitors might value an independent bar, though maybe some won't agree with some of my suggestions (or maybe, any of them):

  • especially for smaller practices, it allows solicitors to retain clients and have them represented in Court when the solicitor can't be everywhere at once
  • barristers might have expertise or experience in an area of law the solicitor doesn't possess
  • the solicitor might not feel capable of, or comfortable with, appearing in court for a particular case
  • the solicitor might want an independent opinion or advice, say perhaps if a client isn't very receptive to the advice they're provided
  • it might be cheaper for the client to brief a barrister. For example, the daily rate of a junior barrister might be less than a day's fee calculated on an hourly rate for a senior partner waiting all day at court, or spending several hours settling an advice

I discussed the cab-rank rule, and its importance, on twitter last week with a solicitor who thought that the cab-rank rule is often ignored by members of the Bar. I can't say I've seen it, but then, I can only really speak for my own practice. I've prosecuted and defended; represented people with lengthy criminal pedigrees, and police officers and professionals with no previous court appearances; I've taken legal aid briefs and declined others because I'm already briefed. I hope my experience is typical, because otherwise, the future of the independent Bar is in strife. What do you think? Is it typical, or are barristers declining briefs in the hope of better paying or easier cases?

Recent UK developments

Meanwhile, in the UK, the independent Bar seems under threat from present plans by the Attorney-General.

The direst prediction is the death of the Bar, and most solicitors firms, in two years.

The Criminal Bar Assocation is not quite as dire, but still remains very concerned about the government's plans.

The dispute centres on two things: the Quality Assurance Scheme for Advocates (QASA) and Best Value Tendering (BVT).

The two are apparently claimed to be separate, but QASA ratings will be linked to the ability to perform correspondingly rated legal work under BVT. So, despite the government's claims, it seems the two go hand-in-glove. There's nothing official out on BVT yet, with a consultation paper due for release in April, and commencement of BVT scheduled for June. (Which is odd, unless the 'consultation' is more window-dressing, and the thing is intended to happen regardless of what the legal industry says.)

One contentious part of the proposal is that judges will assess advocates. The potential for problems is obvious, because a 'fearless independent' advocate might well get up the left nostril of the Bench.

But even then, though a judge can be trusted to judge, they won't be completely trusted to assess advocates! That important task will pass to people employed by a legal regulator, and they will assess the judge's assessment, and decide if the advocate is up to scratch. So the fearless advocate now has two people (or perhaps more) to satiate, which may or may not conflict with their obligation to do the best for their client.

Lord Justice Alan Moses recently observed in his brilliant critique of QASA, "Do we really want a generation of criminal trial advocates who go into the court with the intention of pleasing the judge?"

He continues, "The obligations of independence may clash with the judge’s ideas of what the case requires. Everyone thinks they can run someone else’s case better than their own…judges are not immune from that self-deception, and the Court of Appeal and the Supreme Court live by the belief that they can." I think most advocates have experienced this phenomenon at some stage. (One of my colleagues describes this phenomenon in the Magistrates' Court, where the Bench doesn't have access to depositions, as the tendency of the one person in the court who does not hold the brief and who knows the least about the case feeling the most qualified to proffer opinions to everyone else about how the case should run.)

In situations like this the independent advocate comes to the fore. Lord Justice Moses again, "The advocate’s job may well be to insist that that is not the case, even when the judge who has missed the point persists in his belief that it is he, and only he, who has spotted it.The advocate’s job may be not only to clash with the judge’s ideas but even to clash with the judge." (Not to mention, does the current generation of judges want to add to its workload, and provide a potential further ground of appeal if an unsuccessful litigant claims the judge was distracted from their function by the additional role of assessing advocates before the Court?)

Recently, but no doubt entirely coincidentally, the Legal Services Board released a report into the cab-rank rule (executive summary here). The very short form of that report is because it's more of a principle than a rule, and doesn't seem to have ever been enforced, it should be abolished! (If charge or enforcement rates were the true measure of the utility of a rule, there are any number of criminal laws that might be abolished, like insider trading, or misconduct in public office.)

A recent response to that report was published on the Bar Standards Board website, here, where three barristers critiqued the LSB report, and another response by Sir Sydney Kentridge QC was published by the Bar Council here. (I confess I'd never heard of Sir Sydney, but turns out he's something of a rock star of the UK bar. BBC4 interviewed him just this week; you can listen to the show here.)

The importance of this is not only in a detailed look at the cab-rank rule and how it ensures the Bar remains independent, but that the same arguments might be argued here, given our governments predilections for importing all sorts of ideas from overseas. I reckon the significance of this is that without the cab-rank rule, there is no real difference between solicitor advocates and barristers. There are some fine solicitor advocates around, so it can't be advocacy skills alone that are the difference. (Indeed, since the UK abolished the right exclusive right of audience for barristers in the higher courts, and created a class of solicitor titled the Higher Court Advocates, the similarities have increased, and the differences disappeared.)

The players in the dispute

To make sense of who these bodies are and what they do, here's a brief overview of the players.

The Legal Services Board is the overall legal regulator in the UK. But it doesn't directly regulate lawyers. Oh no, that's done by no less than ten different regulatory agencies. (As an outside observer, I wonder why the cost-cutting doesn't commence with reducing the number of regulators...)

The regulator that supervises barristers is the Bar Council. It delegates that regulatory function to the Bar Standards Board, which is described as something independent, but shows in the Bar Council's organisational chart as a division of the Bar.

There is also a Criminal Bar Association, which has been busily advocating firm opposition to QASA and BVT.

The BSB says the whole thing is coming, one way or another, and that the CBA is silly to oppose it. (If you're a fan of Douglas Adams, you might think it sounds rather like the justification for building bypasses...) Meanwhile, the CBA is marshalling its resources, and the Bar Council has just weighed in with Sir Sydney's response.

You can watch developments at the various sites above, or on twitter with the hashtag #NoToQASA.

Tuesday, 2 April 2013

Private contractors responsible for contracted State obligations?

R v Applied Language Solutions [2013] EWCA Crim 326 is a recent costs decision from the UK Court of Appeal considered the obligations of a private contractor to provide court interpreters.

But more than that, in this age of contracting various functions traditionally performed directly by the government, it suggested that private contractors who willingly assume State obligations might be answerable for their discharge of those functions much as the State might, albeit only to the degree provided for in the terms of the contract.

Applied Language Solutions agreed to provide interpreters for criminal court cases. In a particular case, for reasons that don't seem to be explained in great detail, an interpreter was booked but not told personally of a revised time for a case, and the case was adjourned. (It turned out the interpreter was in fact in the court house at the correct time and available, but not in the required court room.)

The court made a costs order against Applied Language Solutions. That required a finding of serious misconduct by Applied Language Solutions, within the terms of the Prosecution of Offences Act 1958 c 23, s 19B . It appealed.

On appeal, the Court of Appeal held:

  • It is clear that the provision of an interpreter for a witness or a defendant in a criminal case is an obligation of the State which is regarded as an integral part of its obligations to provide a fair and just system of criminal justice, at [13].
  • If a private company takes on the discharge of an obligation of the State, it assumes the responsibility to do so in accordance with the terms it has agreed, at [14].
  • The conduct of the appellant was to be considered in the light of the responsibility to discharge the State's obligation to provide an interpreter in criminal proceedings; a simple failure by the interpreter to attend was a failure for which the appellant was responsible, at [35].
  • In the present case, as in the earlier case before this court, there was no evidence that the failure was anything other than an isolated failure, at [39].
  • In the present case, there was no serious misconduct on the evidence before the judge, at [44].
When concluding there was no serious misconduct in this case, and so quashing the costs order, the Court said:

41. We have reached that conclusion in the light of the following:
i) Courts have to alter times not to suit judges but to suit advocates and witnesses in cases to ensure that trials which are in progress proceed on time. Judge Kelson plainly altered the timing of the case to accommodate counsel so as not to interfere with the progress of a part heard trial. In such a case it is essential that the strict obligations under the agreement are complied with by the appellant.
ii) The Crown Prosecution Service and, on many occasions, those instructed on behalf of the defence are paid out of the public purse. If a case cannot proceed then this has an effect on funds available to the CPS and to the Legal Services Commission who fund much of the defence work. The CPS lawyer and the defence lawyer will have lost the time that they could otherwise have spent. The loss to the public purse is real.
iii) Having efficient systems and good and reliable interpreters is expensive. A contractor cannot be allowed to maximise its profit or reduce its loss in the context of court proceedings by not having in place the best systems and the best interpreters. It cannot transfer its costs of failing to do so to the CPS or the defence.
iv) As the appellant is providing an integral part of the State's obligations, then it must discharge that obligation for the reasons we have set out.
v) Taking, therefore, this wider public interest into account, a court is entitled to view successive non-attendance of an individual interpreter or successive failures in systems as amounting to serious misconduct, thus rendering the appellant liable for the costs thereby incurred to the CPS and the defence.
It's pretty rare in my experience for interpreters to not attend courts here when booked. (The problem can sometimes be availability, but I've always found that once confirmed, they attend as and when required.)

But I wonder if the bigger issue from this case is the fact that the contractor was liable to meet the State's obligations in the same manner the State would have been. If this were the case here, it would seem that contractors can be held to account by the Courts when they don't provide State services, as long as those services are within the terms of their contract. Would this overcome claims of commercial-in-confidence 'privilege'?