What to do when the pet dies

My sister Tasha must have been about seven years old when she suffered her first family bereavement. This was not of the human kind; however it was still someone who mattered very much to her. He was at the time her best friend; they after all shared a bedroom. He was her goldfish “Luca”. Luca’s death was at the time a devastating moment in her life, it was exasperated by the somewhat melodramatic and archaic funeral arrangement which made reference to him being “returned to the sea” and “goldfish heaven” and that “big goldfish bowl in the Atlantic”.

This as you can imagine simply meant that Luca was to be flushed rather unceremoniously down the toilet. For the next couple of weeks she was rather unenarmoured with the prospect of using that vessel for any other deposits. It seemed to her somewhat disrespectful to say the least.

But this does in fact bring us to the rather emotive issue of what to do when a loved one, namely a pet does pass away.

For many pet owners the loss of their pet, who in truth is much more than a simple companion, is an extremely painful experience. With Britain being a nation of animal lovers it is perhaps no surprise that we have about 8 million domestic cats, 7 million domestic dogs and about 30 million goldfish in the country. This does not of course account for all the hamsters, guinea pigs or pet iguanas which we keep. But as with Luca’s demise consideration has to be given to the very delicate matter of what happens when our pet dies.

Of the estimated 1.5 million pet dogs and cats that die each year in the U.K., about 300,000 are buried in garden graves at home; 1,000 are buried in pet cemeteries; 100,000 are individually cremated; and the remainder are disposed of as clinical waste. This may not be the most pleasant or dignified final resting place for a beloved pet.

So what is the best thing to do when that family friend passes away?

This is not as you would imagine a new dilemma. Records show that as far back as 1000BC our ancestors considered how best to say good bye to their pets. Funeral ceremonies were commonly held for animals and the Egyptians enshrined an area of land adjacent to the River Nile for the burial of their animals.

Even our own Duchess of Bedford built a resplendent Corinthian columned temple for her Pekinese Wuzzy, Che Foo. The cat was further honoured and undoubtedly remembered by its effigy being cast in bronze. It stands with six elaborately carved Corinthian columns encircling the monument linked by benches supported by lion's feet. In addition to this memorial the Duchess expressed the views of millions of pet owners at the loss of their loved one with an entry in her diary declaring “My little Che Foo died. He has been my constant companion for over 11 years and a more faithful and devoted one I shall never have.”

When your pet dies you will need to decide whether to bury or cremate the remains. In cases, such as terminal illness, where death has been long-expected, it is a good idea to plan how to dispose of your pet's remains in advance.

Probably the most famous pet cemetery in Britain is the Victorian site in Hyde Park, which between 1880 and 1915 buried 300 dogs in graves as a memorial for their upper class owners. Today pet cemeteries have been built far and wide, and in this country reputable pet cemeteries are governed by the Association of Private Pet Cemeteries and Crematoria, which guarantees that all pets buried in APPCC cemeteries are in identifiable plots for which their owners have visiting rights. The cost of such burials in pet cemeteries range in value and quality, not to mention the size of pet, from between £180 and £400. It is also likely that you will be charged an annual maintenance fee for the plot.

There are in addition about 40 pet crematoriums in Britain and the reputable ones are also governed by the APPCC. The largest of which is the Cambridge Pet Crematorium (01763 208295) which has over twenty years of experience in pet cremation and bereavement care. They cater for companion animals, pets and horses. The cost of such cremations range in value and quality from between £60 and £150. Crematoriums should also provide the owner with the opportunity to take away the ashes for a final more private resting place or allow the ashes to be scattered in a special place within their Garden of Remembrance.

So what if you chose to bury your pet in the garden? What does the law say on this subject?

Perhaps the most attractive option for pet owners is to bury ones pet in their garden. The rules state that a pet owner can in general terms bury their pet in the garden of the domestic property where the pet lived so long as it is not within the definition of hazardous waste. It is uncommon for either a dog or a cat to be classified as such so as to raise a concern for the council. However if in doubt enquire of the local authority. 

The Environment Agency recommends that graves should be more than 250 metres from any well or borehole, 10 metres from ponds or streams and 1.5 metres from underground pipes and cables. Animals buried in fields should be 250 metres from any human-consumption water supply, 30 metres from any other spring and 10 metres from any field drain.

It is also a good idea to ensure that there is about three feet of soil between the top of the casket and the ground; as this will prevent other animals digging up the grave. The last thing you want is to go into the garden the next day and find that foxes have attacked the grave. As such it is always a good idea to place a temporary paving slab over the grave to offer further protection. Once buried, you are not allowed by law to exhume the animal. Many people include a memento such as a favourite toy, blanket or photos with your pet's remains. It is also nice to mark the grave with a small plaque or a single rose.

A loss of a pet is an incredibly emotive situation. But preparation and consideration can make that loss that little bit easier to countenance.

Road to Nirvana at the King’s Head Theatre Islington

For me Shaun Williamson and always will be Barry from Eastenders, an irritating, yet loveable character actor. In this play by Arthur Kopit, directed by Colin McFarlane we meet an American Barry on speed and he is fantastic.   Shaun Williamson has raised his game enormously as an American film producer in a rush to find fame, celebrity and that good old American buck. Barry is reborn! This play is about Barry, sorry Al, as a washed-up wannabee with a last chance at stardom and his latest squeeze Lou (played exquisitely by Wendy Morgan). His success depends on securing “the kingdom” that movie which will bring him to the top again. To achieve this he returns to his former partner Jerry, a loser in the mould of Oliver Hardy – Al had ruined Jerry’s career and drove his wife to suicide but needed him to close the deal as he “had balls”.

The film upon which the play is based is to be the life story of Nirvana, “the biggest rock star in the world” who is unfortunately slightly crazy. She has written an autobiography which has amazing similarities to Herman Melville’s Moby Dick;   well other than the cover it is the same book. But she is a celebrity and the fans loves her so in truth “who cares”. For continuity however the whale has been replaced, but this time by something a lot more personal and I am not referring to Moby.

To get to the dream deal Jerry has to endure almost everything to show his commitment to the deal; including cutting his wrists; the eating of Holy poo and ultimately the sacrifice of his “balls” or at least one. The performances are fresh, witty and energetic. When Shaun Williamson is off stage the play labours somewhat awaiting his verbosity and ruthless energy.  This is a great part comedy; part farce with twists laughter and what at the end of the day everybody is missing from their lives, that “splash of life”. Rejoice Pat and Janine, for Barry is back!

Mitchell : The Court of Appeal gets cold feet?

Craig Barlow and Jason Hadden consider the Court of Appeal’s recent decision in Denton v White clarifying the guidance it gave in Mitchell

Introduction

Practitioners will be conscious of the ridiculous practice that ensued in the lower courts following the “guidance” dispensed by the Court of Appeal in Mitchell v News Group Newspapers [2013] EWCA Civ 1537 as to the operation and application of CPR Part 3.9 “Relief from Sanction”.

In many Courts, the tiniest infraction of either a CMC direction specifying a time for an act to be done (even if it wasn’t an unless order) or the breach of a time set forth in a CPR Rule or Practice Direction (even if no default sanction applied) was regarded as engaging the “relief against sanction” provisions with generally lethal effect.

Mitchell was eagerly embraced by a streamlined Civil Court system crippled by spending cuts and burgeoning cause list. The message conveyed in Mitchell was that there was unmistakable. There was a “New Sherriff in Town”. Delay would not be tolerated. Strict adherence to the modern CPR procedures would be ruthlessly enforced.  Defaulters would effectively lose their place in the queue for the greater good and like a game of ‘snakes and ladders’ they would have to start all over again. They would pay their and the other side’s costs and if they could not either through the exigencies of finance or statutory limitation, then tough luck.

‘Justice’ had lost its talismanic value and the criterion was whether the Court had given them the opportunity of access to justice. It wasn’t three strikes and you are out; it was one strike and you are out. A new justice of finality, well subject to the odd appeal and the potential to reissue.

Mitchell, arrived in the month prior to lawyers completing their CPD points for 2013 and quite rapidly the above interpretation of Mitchell was transmitted through the legal profession like a plague.

Denton v White

In Denton v White [2014] EWCA Civ 906, the CA was confronted by conjoined appeals in Denton, Decadent and Utilise.  What was common to all three appeals was that the time frame specified in a CPR provision, practice direction or Order had been exceeded and that failure was delivered with a specified sanction.

In Denton, additional witness statements were served a year after the period specified and thus the sanction in CPR Part 32.10 applied “…may not be called to give evidence unless the Court gives permission.” Nevertheless, the judge gave permission and the trial date was vacated.

In Decadent, a litigant was subject to an “unless order” striking out their case unless court fees were paid on a given date. The fees were not paid on time., but a month later. The court refused relief from sanction.

In Utilise, the litigant’s costs budget was filed 45 minutes late and the litigant had not notified the Court of the result of negotiations, as so ordered. The lower Court refused relief.

The Outcome

The CA allowed all three appeals holding that the judges in each had not correctly interpreted or applied CPR Part 3.9 and the guidance in Mitchell.

As Lord Dyson MR opined at paragraph 3 of Denton:

“… Mitchell has been misunderstood and is being misapplied in some courts. It is clear that it needs to be clarified and amplified in certain respects.”

At paragraph 9, the CA went on to remind practitioners that the costs budget in Mitchell had been filed 6 days late, 1 day prior to the Case Management Conference scheduled to consider those costs budgets, the delay had caused the CMC to be adjourned and disrupted the Court’s List. The automatic sanction engaged and that required the defaulter to obtain relief from sanction. Thus, explains Denton, the real reason the appeal in Mitchell was dismissed was that the lower court had correctly applied CPR 3.9.  Since it was a matter of reasonable discretion the CA could not intervene.

The CA pointed out that CPR Part 3.9 (1) is layered and that on its literal construction:-

(1) The Court’s first task is to identify the Rule, Practice Direction or Court order imposing the sanction;

(2) Next the Court considers all the circumstances of the case and the need-

a.     For litigation to be conducted efficiently and at proportionate cost; and

b.     To enforce compliance with the rules, practice directions and orders.

But as the CA then explained a more nuanced approach was needed.

The CA was concerned that CPR 3.9(1) was not being pragmatically or uniformly applied. Worse, some judges had got hold of the wrong end of the stick entirely and adopted the stance that unless (i) a default could be characterized as “trivial”; or (ii) there is some good reason for the default, the Court was bound to refuse relief.  Denton specifically castigates such a judicial mindset and unequivocally eschews it as wrong. 

The Revised Guidance

It is from paragraphs 34 of Denton onwards that – depending upon one’s disposition towards cynicism– the CA either re-writes the Mitchell guidance or as Lord Dyson MR would have it “clarifies and amplifies it.” It does not particularly make any difference provided that the CA guidance is properly understood and applied. The 9 bullet points to be extracted are these:

1.     What Mitchell sought to explain was that factors (a) “efficiency and proportion” and (b) “enforcing compliance” in CPR Part 3.9(1) are of considerable weight. They were not to be casually disregarded. They were designed to engender a cultural change from the old lax approach to Court timetables. 

2.     But even when giving those 2 factors their significant weight, the Court must to consider “all the circumstances of the case” when exercising a discretion to grant or refuse relief from sanction.

3.     The rules are not ‘trip wires’ and compliance with them is not an end in and of itself. The prime objective is to secure the litigant’s compliance with them because that is the route to the efficient, proportionate conduct of litigation. By these means the Court can deal with cases fairly and justly.

4.     A fundamental objective is to make Case Management Directions that were realistic and achievable. The Court should be careful about making “unless orders”. Such orders are designed to coerce compliance and are best used to bring about efficiency and costs savings at appropriate stages, if the defaulter persists.

5.     A key factor when considering relief from sanction is the need to avoid the waste of the litigants and the Court’s resources with adjourned hearing and broken trial windows fixtures.  Where a hearing or trial window has been set and non-compliance imperils the same, the weight and importance of factors Rule 39.1(a) and (b) magnify. Depending upon all the relevant circumstances including promptitude, explanation,  previous history of compliance, conduct etc the Court will have to balance the competing factors.

6.     Nevertheless, in the vast majority of situations where one litigant has slipped in compliance but proposes to appropriately remedy it, the Court expects the other litigants to be co-operative and consent to an extension of time or relief from sanction.

7.     The Court will discourage contested applications for extensions of time or relief from sanction. In general, these should usually be disposed of by consent. See Rule 3.8(4).

8.     One litigant is not by a side wind to gain a tactical advantage from the other’s default by refusing to co-operate. A party’s lawyers should think very carefully before advising their clients to adopt a strategy of non co-operation. The litigants are required to assist the Court to further the over riding objective. Court will robustly assess a party’s unreasonable refusal to agree to an extension of time or relief from sanction and visit such a party with appropriate costs orders or record its reasons for the use of the trial judge or costs judge at a later stage.

9.     Where contested, the Court should ask whether the default is significant or serious in the context of the litigation. The answer will usually be obvious.  If it is not significant or serious, an extension/ relief should ordinarily be granted without the need to perform any balancing of factors. Where it is not obvious, the Court ought then proceed to weigh and balance in accordance with the above.

Conclusion

The word “trivial” as a rule of thumb test, has been discarded in favour of not “significant or serious”.  The core policy objectives the CA seeks to pursue with the application of Rule 3.9 is made explicit in Denton. Arguments about extensions of time / relief from sanction are to be discouraged unless the failure imperils a hearing date or trial fixture. The Court emphasises a more co-operative approach between litigants to assist the Court in managing the case, steering it step by step and keeping it on track to the trial date. The shift in emphasis between Mitchell and Denton is that the CA does not expect the litigants to eat up the Court’s resources in squabbles about time and compliance if the same can sensibly be resolved between them.  Perhaps the clue to this judicial shift is that the Law Society and Bar Council were invited to intervene in these appeals.  Its possibly indicative that the Civil Appeals Office detected a worrying trend in appeals being lodged. Its most unusual that within 6 months of Mitchell three conjoined appeals involving the application of Mitchell reached the CA. All lower Court decisions in issue. All purporting to apply Mitchell. All of them reversed. 

Craig Barlow is a barrister at Ely Place Chambers in London

Jason M Hadden MBE is a barrister at St Ives Chambers in Birmingham

I’ll ask the Questions: Zahida Manzoor

When Zahida Manzoor decided to impose an unprecedented fine on the Law Society of England and Wales in the sum of £250,000 for failing to handle its complaints service adequately, she undoubtedly got their attention. She also got mine! Manzoor is in a unique position; not only is she the first Legal Services Complaints Commissioner but also the Legal Services Ombudsman and whilst perhaps not looking for a fight with the Law Society; she is determined to bring its complaints handling into the twenty first century, by hook or if necessary by crook. As such I rather felt I had little choice but to interview her about her life, her passions and her challenges with the Law Society.

Zahida Manzoor was born in Rawlpindi Pakistan in 1959 and moved to West Yorkshire when she was just three years old. Her father a member of the army unfortunately died twenty five years ago. “He was my kind of inspiration” Her mother had the unenviable task of bringing up five children, including Manzoor who confessed “I must admit I was a bit of a Tomboy, cycling around and getting into all sorts of scrapes that perhaps I should not have been getting into!” Oh how times have changed!

In common with a number of my other interviewees, Manzoor is both passionate and a workaholic. “I want to make sure that there is a right, just and fair society for all. I felt that no matter what I did, I always wanted to do something for the good.  I know that sounds very idealistic but it is something that is within me.”

So Manzoor began her working life as a nurse, midwife and as a health visitor. “I moved very quickly.  I qualified in all of those roles. Let me give you an example, when I was a health visitor I worked in Durham during the miners’ strike. Once again that began to bring home the issues about public services. Where changes needed to be made. Fairness for all. Access, equity and accessibility.”

From there she went on to sit on both the NHS Policy Board and the Commission for Racial Equality, holding the position of Deputy Chairman from 1995 to 1998. She also chaired Bradford Health Authority and the NHS's Northern and Yorkshire regional executive. “We wanted to improve services in terms of access for patients and for consumers. This was really key and fundamental to me. Getting real improvements in waiting times; getting real improvements in looking at the money that was being spent; how it was being spent and where it was being spent. Real grassroots improvements in service that patients could actually see.”

She was to be rewarded for her dedication.  In 1998 she was made CBE for services to Race Relations and the Health Service and the following year voted National Asian Woman of the Year.

But arguably her biggest challenge was still to come. In 2003 the Lord Chancellor appointed her to the role of Legal Services Ombudsman for England and Wales and a year later she was also made the Legal Services Complaints Commissioner.

So before we get too carried away with all these successes I thought that I should ask about the two roles and what they were really all about?

“Well I am the Legal Services Ombudsman and in that role I assess individual complaints that come to me from consumers who are dissatisfied by the service that they received from any one of the six legal professional bodies, which includes the Law Society and the Bar Council. “

And presumably ILEX?

“Yes.  Yes it does. Those complaints, by statute, have first got to go to the individual Lawyer or Executive concerned.  They then go to their professional body and then, if the consumer still remains unhappy with the service that they received, they can refer that complaint to me.”

So it is a very long drawn-out process. 

“Yes. I sit at the apex of the complaint-handling systems as Ombudsman but I review individual complaints as the Legal Services Ombudsman.  As Legal Services Commissioner, this post really is looking at the systems and processes of the Law Society, and asking the Law Society for a plan in terms of how it will improve its complaint-handling.  I was appointed to this post as well as the Ombudsman’s posts, simply because the Law Society was failing to deliver the improvements in their complaint-handling.”

One of the improvements being sought was that the Law Society should reply to the majority of complainants within 60 days instead of the present 90 days. So before dealing with the Law Society, let me check are you happy and satisfied with ILEX’s complaints-handling?

“I do not see very many complaints coming through to me from ILEX at all.  In fact, I can not recall if I have seen one this year.  In the scale of things I really do not get any concerns or complaints in that area”

Well that appears to be excellent news. But it does sound like the two posts could constitute something of a conflict of interest. Well certainly that appears to be the view of the Law Society in the past?

“Well, can I put it bluntly?

Oh please do

“Well. Utter rubbish.  I think it is just a red herring.  I was appointed to the Legal Services Ombudsman post. The Commissioner position was advertised at the same time. If the Lord Chancellor felt it necessary, he could also appoint whoever was appointed as Legal Services Ombudsman to the role of Commissioner. He did. So the decision was made well before I was appointed.  There is no conflict of interest at all between the two.  One as Ombudsman reviews individual cases, the other one has oversight of the Law Society, fulfilling its complaint-handling and to set its targets and review its progress against the plans it submitted to me, with a view to assessing what improvements it has made in its own systems and processes and indeed what improvements it has brought about in its complaint handling.”

Asked and answered. It was in fact the Chief Executive of the Law Society Janet Paraskeva who made the comment.

“Yes I know. I am not quite sure where she is coming from. I have a role to do.  I have a job to do.  So let us talk about what the real issues are.  Which are improving performance and improving the Law Society’s complaint-handling.  Let us tackle those issues. These are the real and meaningful issues. Both in the interest of the Law Society and of the practitioner as well.”

Alright – no conflict. I get it. So what do people complain about?

“Usually about their Lawyer not following advice; following instructions; not giving costs information; not keeping them updated.  Perhaps not turning up to Court; poor communication; being rude; being overbearing; giving bad advice or giving no advice.  Not giving options. Communications; costs and the delays appear to be the biggest factor.”

Readers take note. So why do you think the Law Society is getting it so wrong?

“Well, I think, certainly the Law Society’s Council has made quite a lot of money available for its complaint-handling.”

That’s thirty-eight million pounds.

“Yes.  This seems a slightly staggering amount of money, for the number of complaints that they deal with.  Having done independent audits of the Law Society’s systems and processes, there is an awful delay, in terms of the way that those cases go through their systems and processes.  I think they can be better managed.  They need to become much more efficient in how they deal with complaints than they currently are. But perhaps they are not getting as much value out of that money as they should.  My view would be perhaps the legal profession should be asking what they're getting for their thirty-eight million.”

The Law Society estimates that it will receive between 17,000 and 20,000 complaints between April 2006 and the end of March 2007. If you do the maths that is an awful lot of money being spent per complaint.

“Well, I think you are absolutely right, Jason, to say that the Law Society needs to be looking at its processes and tightening up those. Very much so.  It needs to be looking at the flexibility of its workforce.  It needs to be looking at how many cases they have, as opposed to how many people they have in management positions.  I understand they have something like just over four hundred people in the complaint-handling service, of which I understand just over two hundred are case-workers.  Now I don’t have to hand the exact job titles or what the other perhaps nearly two hundred people do, but perhaps these are the areas that the Law Society needs to look at. I would like to see much greater improvement at a much faster pace than currently is the case.”

So why is the Law Society getting it so wrong? After all it is spending a lot of money on the problem.

“Yes. A vast amount of money on their complaint-handling.  You have to look at how many complaints the Law Society gets and that has not changed dramatically over the past five years. You would expect greater efficiency or greater turn-around times, or greater improvement in service than we are seeing. The Bar Council is better. I think the Bar Council continually tries and reviews and improves on its processes; invariably I find that it does what it says.”

You fined the Law Society a quarter of a million pounds. Which I understand was because they had submitted a plan that was inadequate for securing improvements to its complaints handling services for 1 April 2006 to 31 March 2007. I wonder whether the figure was so high because you thought the Law Society were not taking you terribly seriously.  And thus it needed to be high. A kind of hit across the brow?

 “Well yes but I do not think it was high. I think it was reasonable.  If it was high, then it would have been a million pounds.  Because of course I can fine up to a million.”

Yes I know that. But a quarter of a million pounds is still an awfully lot of money.

“I do not think that the penalty level that I set the Law Society was unreasonable.  That may well be a view that the Law Society have, but it is not unreasonable and when you look at how much overall the Law Society budget is (over £110 million) it is very, very minor. But it is reasonable. It is about the failings of the plan and that is the only way that I can make a judgment. It was based on simply that – the plan.  Not anything else that anyone else may well want to say.”

The reality may well be that the purpose of such a high fine was to ensure that the Law Society did in fact take Manzoor seriously when discussing the new improvement plan for 1st April 2006 to 31st March 2007 and when implementing it. The Law Society has now agreed that consumers will receive a substantive response to complaints within 55 days and that 94% of people who lodged complaints will have them concluded within 12 months. Amazing what a fine can do.

I have seen your proposals to get yourself sacked, so to speak.

“Well yes. The government’s White Paper in relation to legal reforms. I have taken a totally selfless position on the legal reforms. I said to David Clementi, that if we really are going to get an effective and efficient service, then the numbers of tiers of organisation should be reduced and thus my offices, both the Legal Services Ombudsman and as Legal Services Complaints Commissioner, should cease to exist.”

A brave decision

“But perfectly proper. Not because I did not feel that the positions were important, because indeed my powers will be transferred to the new Office for Legal Complaints and Legal Services Board.  Of course that is a very difficult decision to make, for both my offices and particularly for my staff.”

But the correct decision for the future of the profession?

“Absolutely. But you must have a Legal Services Board which has real teeth, so that if you need to use them, then you can, but presumably very rarely. Some people are talking about having a weaker Legal Services Board. They are wrong. If you have a strong Legal Services Board, frontline Regulators, should have nothing to fear at all. A strong Legal Services Board is a benefit for both the consumer and the regulators.”

Zahida Manzoor has certainly shown that teeth when used properly can make all the difference in her battle with the Law Society. Her vigour and passion for her work should be a credit and an example for us all. As lawyers perhaps we have a natural reluctance when a third party wishes to investigate our work or practices, especially if it is put there by an over-bearing government. But the fact is that where complaints are made they ought to be resolved, as effectively and efficiently as possible. Ideally internally and without the need for fuss or further recourse to our professional bodies. For lawyers as much as for consumers (I still remember when they were called clients) we want prompt action on problems and complaints. It does not help the legal profession, our legal profession, where we as lawyers are pilloried in the press especially when our professional bodies (and I am delighted to exclude ILEX in this analysis – but one brush can taint all) can not get it right quickly or efficiently enough.

I’ll Ask the Questions: Helena Kennedy QC

Helena Kennedy QC is a remarkable woman. She has been involved in almost every leading human rights case over the last thirty years and is seen by many as the saviour of the unfortunate, the lost and the politically forgotten. The nation’s Portia.

Yet rather than leave her on the outside looking in (or words to that effect) the political establishment made her “one of us” and laudably ennobled her.  An incredible journey for a “wee lass” from the tenements in Glasgow to a seat of power in Westminster.

When I meet Ms Kennedy in the lobby in the House of Lords I am somewhat surprised as she is perhaps smaller than I had expected; immaculately presented; fierce and with an accent which sometimes flickered between her origins in Glasgow and years of living “down South”.  She is now in her 57th year (a factor which far too many reporters link to her name in articles) “to a working class family; my father worked with newspapers as a printer on the Daily Record and was a trade-union official, my mother was a housewife. There were four daughters in the family and they all left school at fifteen. I was the lucky one. I went to a local school in Glasgow and at the last minute decided that I would do law at University”.

She was originally planning to read English at Glasgow University but a last minute change of heart found law the more natural calling. The reason:

“Debating! In Scotland debating is very much part of the culture.  In schools we all debated, and this was in the big working-class schools.  I can remember that when I was about eleven or twelve my teacher would explain the procedures about debating and, well they are very similar to the law. I remember him pointing at me and saying ‘we’ll have a debate and you, Helena, will argue in favour of the death penalty.’  And I said ‘oh no, I can’t do that, because I am not in favour of the death penalty,’ and he said ‘but that’s not what this is about. You have to be able to understand what the argument of the other person is, you have to be able to put yourself in their shoes, and that’s the whole point.  And you will argue for the death penalty…’and so I did. It was about learning to make an argument; to make it as cogent as possible, and to understand the logic of it. As I said, very similar to the law”.

And to that end she chose to become a lawyer and travelled down to London and the Bar.

“I remember that I was surrounded by people who had gone to public school, who were very confident, who I thought were like the people on the radio, and had posh English accents. I was an outsider.  I spoke with a South Border accent.  I was rather conscious of it, in a way very Scottish. I was not welcomed, I did not feel that I belonged, and it took quite a long time to have that sense of entitlement to be there, while everyone else seemed to be very comfortable. But you can never tell.  They can each have their own insecurities too.”

The treatment of women both in the legal profession and in society generally has always concerned Kennedy. In particular "the women who came in as clients. I started to represent prostitutes and people like that and that really sharpened up my sense of how the law did not work for whole groups of people."

In 1993 she published her first book, a look at the way British justice treated women, Eve Was Framed. She also became a fixture on television in standing up for the rights of the individual in programmes such as Blind Justice and Raw Deal. More and more of her career became dominated by the preservation of civil liberties and human rights.

“I think these are things that we can be boastful about, and the rule of law was invented in this country, with the idea that you have to hold to account the people in power, and it started off, of course, being the King, but then of course the government, Ministers, people who are employed by arms of the State, whether they are policemen, immigration officers, prison officers, and we are entitled to expect those who have power not to abuse it.”

But do you really believe that our civil liberties are at risk?

“I really believe that they are in danger; of trial by jury; of torture. In the seventeenth century our Judges decided that torture was unacceptable, and that evidence that might come from torture should not be accepted in court.  These were things that were taken up by the rest of the world and being very important principles for any state to adhere to, and we are cavalier about how important they are.  So, of course, as you probably know, I have had my battles with the Labour government about it and this is a very painful business, because I am someone who prefers to see Labour in government to anyone else, and yet at the same time my first loyalties, when it comes to these issues, has to be to the law.

It was in 1997 that the Labour government ennobled her as Baroness Kennedy of the Shaws for her work as a campaigner; a Labour Party supporter and her work in a large number of prominent cases. Amongst others these include the Brighton Bombing, the Michael Bettany espionage trial, the Guildford Four appeal and the bombing of the Israeli embassy. However in the last ten years she has moved from being one of Labour’s more high-profile supporters to one of their more high-profile critics.

"I think that when it comes to this business of law and legal principle, I think they [Labour] are getting it seriously wrong and nothing will persuade me otherwise. There were times when I have to stand up and say ‘I’m sorry, but I’m not going to vote with you.  I’m going to vote against you.’  For people who don’t care in the same way about these issues, they find it very hard to understand, and they get very angry with me."

But as a Member of the Labour Party in the Lords, have you ever considered resigning the Labour whip?

“No, but on occasions, I have been advised to consider my position. But I am standing up and saying it is not good enough. Law matters!  That is what I am saying.  That is my slogan – the Law matters.  Actually it is the mortar in a civilised society, and once you start losing respect for that, and cease to understand why it is important then I think you start making a rod for your back.”

So why do you think that this disregard for civil liberties has become so prevalent?

“I think it is partly about the nature of society where we have politicians who no longer have to work as hard about winning people to their argument.  Everything can be done so much more readily, because of the nature of communication.  You know, you do not have to have a political party to defend ideas and to argue over why things should be as they are, or why you might change things.  You actually just sit on Richard and Judy’s sofa, and tell the nation why you think crime’s a bad thing, and what ought to be done.”

But crime is of course a “bad thing”.

“I agree that crime is a bad thing; that terrorism is a terrible thing, but what you do not need to do, is, in a knee-jerk way, reject the things that have been struggled for over many centuries.  And there’s always a way which Government for once, even after modernising, become cavalier with things that are considered to be old.  You know, the thinking, ‘they’ve been around for hundreds of years…’”

But the thing is of course that governments want to show, perhaps even think that they have to show the people that they are doing something?

“They want to be seen to be acting very quickly.  They reach for legislation as an answer to problems, and often legislation is not necessary.  We have had the creation of eight hundred new criminal offences and that is about a formula, which is that the Government feel that something has to be done.  The tabloid press run campaigns on crime.  We have to be seen to be tough on crime.  We have to legislate, and what’s the best way to be seen to be doing that.  It’s to be tough on these folk who, we think, may have done it. You know, it is very easy in the circumstances, to erode the fundamentals.”

So is it all doomed?

“Look society requires the rule of law, and it requires a vibrant democracy, and both are at the moment, actually, slightly kind of quaking in their boots. We need to revive democracy, and we need to be conscious of the principles which underpin the law.  Because, I think you start unpicking the mortar…you start taking out from our foundations, the stuff that holds it all together.  And I think, you know, that there are serious consequences from doing that.”

So what can we do as lawyers to protect this system?

“One of the great things about the legal system in Britain is that you actually have an independent legal profession and guarding that independence is very important. It is about making sure that without fear or favour you are prepared to defend people with the law. Challenging government, government officials and you can do this fearlessly and you are prepared to take on, as most of our firms do, suing government, suing the Ministry of Defence. We have to have a profession that is prepared to do those things, and from that profession we get such a terrific judiciary.”

But one of the problems that the profession has is that legal aid is being diminished and lawyers it would appear are becoming less respected.

“This is why we have to keep Legal Aid available, because you want your Criminal Justice Courts to be respected and seen to be fair.  Once you start becoming, you know, making fast and loose with that, I think you end up praying a price.  And it’s all short-termism.  It’s all so daft.  Because in the end, it’s about not seeing what the consequences might be, say, ten years from now. Because it all hangs together, and that makes for our reputation around the world.”

You mention reputation, in the world of miscarriages of justices cases which was the most important for you?

“People always think it must have been the Guildford Four Appeal, because it was such a high-profile case and it was such an important case in terms of being one of those lines in the sand cases.  But I have done lots of other lesser miscarriages of justice, where I have seen real pain, and I have seen people suffer because they have lost, or almost ended up losing their liberty for life.”

That must have been incredible sad?

“Well some of the saddest cases, of course, are cases involving domestic killings, where people have killed family members and it has happened in some horrible argument, where somebody lost their life and I have done lots of big high-profile cases, but the cases often haunt you most are, you know, often not the ones that make the headlines.”

Are you haunted by many?

“Just a few years ago, I did a case involving a little girl from Bangladesh, who was fourteen, brought here by her family, and could not speak a word of English.  She had lived with her grandmother, back in Bangladesh, and she came here and was made pregnant by one of her relatives – her mother’s brother – and did not tell anybody. She was so frightened and gave birth on her own, in a toilet, and threw herself from a multi-storey block of flats. The baby miraculously survived, but ended up in care. The whole story was just desperate. The little girl, the fourteen year old, ended up on trial at the Old Bailey.  He was a wonderful judge, and gave her probation and actually gave her an absolute discharge.  And I spoke about the responsibility of the relative who made her pregnant, and obviously sexually abused her, who had disappeared.  But it was a terrible thing.”

Are we a safer society now there are fewer miscarriages?

“I think we are much more vigilant and much more conscious of miscarriages of justice. But I am concerned that, in relation to terrorism, it is always when there are highly charged cases, where emotions run high and we all do feel very strongly about terrorism, and rightly so, but it is important that we show that the justice system can deal with these challenges to our system, because that is what makes ours different from terrorists, that we do respect the rule of law. And I think juries are fantastic.”

It is perhaps not only juries who require such an accolade. Perhaps society is safe when there remain people such as Helena Kennedy who are prepared to fight for our liberties and our rights even when it sometimes puts her at odds with our own. But then again all rights require some sacrifices and Kennedy’s political affiliations may yet prove such for her.

Justice Stripped down to it’s underpants.

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It is not every day a senior member of the judiciary is charged with a criminal offence, let alone one consisting of exposing himself in public. It is rarer still that a prosecution leaves us with no conviction but with victims on all sides. The recent case of Sir Stephen Richards, the Court of Appeal Judge, achieved this ignominious distinction and now ought to represent a zenith in public dissatisfaction with the criminal justice system. However you slice it, something went wrong.

It is unusual for a prosecution leaves to us with no conviction but with victims on all sides. The recent case of Sir Stephen Richards, the Court of Appeal Judge, achieved this ignominious distinction and now ought to represent a zenith in public dissatisfaction with the criminal justice system. Sir Stephen elected for a Magistrate’s Court trial. He was acquitted. We think that from everyone’s point of view the prosecution was wrong and has produced a series of innocent victims. The most obvious victim in this case is Sir Stephen Richards. A relatively young, widely respected Lord Justice of Appeal tipped to become a future law lord and perhaps even Master of the Rolls, he suddenly found himself catapulted into criminal proceedings, accused of being little better than a dirty old man in a Mac. He was acquitted on the basis that the prosecution had not discharged the burden of proof. To an outsider this always seemed the most likely verdict. To those who knew him a certainly.

There was always an Alice in Wonderland quality to this prosecution. The reason given for the dismissal of the charges sub silentio brands the British Transport Police (BTP) as incompetent and, by the same token, creates doubt that the Crown Prosecution (CPS) considered the sufficiency of the evidence. Bluntly put, the authorities commenced a prosecution of a senior member of the judiciary without adequate corroboration of the identification. Only time will tell what damage it has done to Sir Stephen's reputation and career. The fact that two women have since come forward with fresh allegations suggests it will be considerable.

The next victim is the poor lady who was subjected to indecent exposure on the Raynes Park to Waterloo train, not once but twice. Whilst she preserves the anonymity denied Sir Stephen, which may be simultaneously both a blessing and a curse, she can hardly feel vindicated at the hands of the system. It follows from Sir Stephen's acquittal that the flasher remains at large and free to stalk other commuter trains. It seems improbable that that person will ever now be found and brought to justice - a thought hardly likely to comfort the complainant.

The third victim is the public. They will have three main concerns. First, that the acquittal means the true culprit has not been brought to justice. This means that the original ‘investigation’ and prosecution were a shambles because the CPS prosecuted the wrong man. Second, that the trial has tarnished the reputation of an innocent man. We think that does matter to the British public. Third that in light of recent allegations, the Criminal Justice System has singularly failed to achieve ‘certainty’ either for Sir Stephen or the Public. With ‘new’ allegations hanging in the air, inevitably there’s fresh tirade of speculation.  No-one likes that.

Sir Stephen was tried by a male district judge and two lay magistrates, who happened to both be female. This was exceptional. As salaried, professional justices, District Judges sit alone in the Magistrates Court; conversely, lay justices, not professional judges or even lawyers, sit in panels of three. They do not sit with District Judges. As previous reported by The Times, apparently, District Judge Workman made this unusual decision after "consultation" with the President of the Queens Bench Division, Sir Igor Judge, who sits in the Court of Appeal potentially alongside Sir Stephen. We do not know when that decision was made or why Sir Igor Judge was consulted, but it was extraordinary that it should have happened. This is because there appears to be no statutory basis for it.
 

We are not suggesting that there was any impropriety in the proceedings but as the Court of Appeal has stressed, there can be the appearance of bias without any actual bias.  Any "consultation" between an adjudicating magistrate and a Court of Appeal judge - a colleague of the defendant - in the run-up to the trial is unfortunate -   It may well be the case that the judiciary considered that by involving lay magistrates they thought that were protecting both the integrity of the judiciary and avoiding any suggestions of bias. But any change to the way such cases are run, can inadvertently create the opposite effect in the public's mind.

The appearance of impropriety is also not improved by the fact that District Judge Workman was awarded a CBE on July 16, just two days after the decision. District Judge Workman has worked tirelessly for the improvement of the administration of justice over the years, and his CBE is objectively justified. The decision to honour him would also have come much earlier than the date it was announced to the public. But that's not the point. The fact that his ruling was rigorous, logical and well-reasoned does not dispel the potential perception that the judiciary has merely taken care of one of its own. Many people will have assumed from the outset that there was as much chance of Sir Stephen being convicted as Elvis being found alive, a point of view that represents a kind of reverse prejudice but which is, sadly, very difficult to demolish. It is probable that the ‘system’ bent over backwards to not only evince but actually create an environment where Sir Stephen had a scrupulously fair trial.

The problem is that public confidence in the justice system will have been dented by the inadequacy of the prosecution, every aspect of which was, upon scrutiny, desperately unsatisfactory. The BTP's failure to obtain CCTV footage of the incident, for one thing, is nothing short of inexplicable. The police claim that sometimes such footage cannot be obtained for "operational reasons" is, in a city that has been through the 7/7 terrorist bombings, fatuous. These concerns increase when the CCTV surrounding the most recent failed terrorist attacks in London was apparently swiftly recovered. So why wasn't the CCTV footage relating to the complainant’s allegations against Sir Stephen obtained within 31 days of the complaint? Legally, the footage had to be preserved for at least that period. So why couldn't the Police get hold of it? Who then decided that a prosecution of a sitting Court of Appeal judge was justified when there was no corroborative identification evidence?

Sir Stephen, understandably relieved that his ordeal was at an end, declared: "I have put my trust in the legal process; I am delighted it has enabled me to clear my name."

He was speaking in a personal capacity and under extreme conditions. He and his family were put through hell. He deserves some latitude. For otherwise, it would be surprising for an Appeal Court judge to express such public confidence. The Defendant was acquitted at the conclusion of a process that demonstrated the worst ineptitudes of the ‘criminal justice system’. The Prosecution had failed to obtain the key piece of ‘corroborative’ evidence for the trial. The absence of that material was cited by the court as the pivotal reason for finding that the Prosecution had not proven its case. That was the basis for the acquittal. Equally, Sir Stephen ought to have been painfully aware that it was capable of being the vital evidence to exonerate him and set whispering tongues at rest.  Thus as a Senior member of the judiciary, if Sir Stephen perceives his acquittal by a Criminal Court as in and of itself  "clearing his name" we believe that he and we entertain profound ideological differences about the function of the Criminal Courts. The true tragedy here is that the criminal justice system spectacularly failed. It had a victim, but it prosecuted the wrong man and it did it so badly. At some stage it potentially possessed the materials to find the right man. Inexplicably, that evidence wasn’t obtained. Quite who is to blame for that, we might never know. If there’s a “closing ranks” argument to be made, we’re not convinced it should be aimed at the judiciary. We think there are better targets: for surely the investigating and prosecutorial authorities have some considerable explaining to do?

Hopefully in future the same authorities will be more scrupulous in their gathering of material and analysis of identification evidence in criminal cases. But we’re doubtful that much will change or at any rate soon. This is because no-one has stepping forward to shoulder responsibility. Quite the opposite. The Public have been confronted with ‘explanations’ from the authorities citing “operational” difficulties in obtaining the CCTV evidence. One can't help but feel that a similar thing could happen again.  We don't imagine that the run of the mill defendant will find the Magistrates' Court consulting the President of the Queens Bench Division about the composition of their panel.

The spectacle of Sir Stephen exhibiting his underpants in a court room was an unfortunate one, but the real trouble is that this case has stripped justice itself to its underwear. We are all the losers.

Judicial Bias and the Flying Carpet

The Court of Appeal’s recent decision in El Faragy v El Faragy [2007] EWCA Civ 1149 was always going to make the National Press especially where the court held that - as a matter of law - an experienced Family Division High Court judge (Singer J.) should be recused from adjudicating upon the division of assets in a big money divorce case as a result of certain remarks he had made during a number of interlocutory applications in the same proceedings.

The newspapers did not spare Singer J’s blushes and reported in lurid detail the remarks the judge had made about the Egyptian and Muslim husband. In the authors’ view contextually viewed the judge’s remarks whilst sometimes colourfully expressed were – some might feel - justified. Singer J found himself squarely confronted by an allegedly rich husband who had – not merely on Singer J’s findings, but previous judge’s findings – consistently and flagrantly defied the Court’s orders to the potential expense and detriment of his former wife. 

“He (the husband) is running a campaign. It is perfectly clear to me, prima facie , I keep having to say that because, of course, I may be persuaded out of the near conviction , that the campaign here is to make sure that she is put at the maximum disadvantage by the non-compliance with orders”

And impliedly furious with the husband’s alleged delay and prevarication:

“What good would that do [the wife] if he chose to depart on his flying carpet”

“It is Ramadan quite soon…”

“The Sheikh would be here to see that no stone is unturned, every grain of sand is sifted.”

And commenting upon the husband’s potentially evasive affidavit evidence, Singer J asked of the advocate:

“A bit gelatinous is it?... Like Turkish Delight?”

But, perhaps fatally, Singer J. went slightly too far when prophetically he observed that:

“…I have formed a view about this case, not dissimilar from that which Thorpe LJ formed [in an earlier interlocutory appeal] and maybe I should not ultimately take the final hearing…”

Nevertheless, confronted by the import of these comments, Singer J refused to recuse himself.  The Court of Appeal however took a rather different approach and reversed him holding that:

“Making every allowance for the jocularity of the judge's comments, one cannot in this day and age and in these troubled times allow remarks like that to go unchallenged. They were not only regrettable…they were also quite unacceptable. They were likely to cause offence and result in a perception of unfairness. They gave an appearance to the fair-minded and informed observer that that there was a real possibility that the judge would carry into his judgment the scorn and contempt the words convey. Singer J. may talk too much; yet he is a good judge. Unfortunately for him and for all of us, on this occasion he crossed the line between the tolerable and the impermissible.”

Whether Singer J ‘crossed the line’ and created the ‘appearance of bias’ is ultimately a matter of impression.  Ward LJ applied the correct legal tests to the facts and gave a judgment in which Mummery and Wilson LJJ’s concurred.

This article dedicated to the exposition and critique of just one paragraph of the judgment. Ward LJ entitled it “A postscript’. It is at best an obiter dictum, but therein he suggested a new procedural approach practitioners might adopt to the ‘recusal’ process.

We should emphasise that Ward LJ labelled the paragraph in issue a ‘postscript’. It is perhaps therefore best viewed as a judicial ‘after-thought’. Nevertheless, Mummery and Wilson LJJ’s agreed with Ward LJ without any dissent.  Whilst Singer J’s recusal has attracted much comment, the ‘postscript’ has not. Before the new procedures postulated in El Faragy are adopted and gain their own momentum, we propose herein to at least ‘test’ them and aim to demolish them. As you have read above, Ward LJ intimated that Singer J might ‘talk too much’. It is difficult for us to resist the mischievous temptation to submit that Ward LJ has in his ‘postscript’ perhaps fallen prey to the same vice.

Ward LJ said this

“It is an embarrassment to our administration of justice that recusal applications, once almost unheard of, are now so frequently coming to this Court in ways that do none of us any good. It is, however, right that they should. The procedure for doing so is, however, concerning. It is invidious for a judge to sit in judgment on his own conduct in a case like this but in many cases there will be no option but that the trial judge deal with it himself or herself. If circumstances permit it, I would urge that first an informal approach be made to the judge, for example by letter, making the complaint and inviting recusal. Whilst judges must heed the exhortation in Locabail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague. If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one's colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.”

The first and second sentences are curious and potentially contradictory. It is difficult to understand why ‘recusal’ applications represent an embarrassment to the administration of justice.  Stranger still that if they are embarrassing, it is right that they are made. At first blush one would have thought that their existence is a practical exposition of the legal system’s adherence to the cardinal principles of fairness and impartiality. So perhaps contextually, Ward LJ might be suggesting that judges are either sitting when they ought not to, or improper applications are being made to recuse them or a combination of both. Either way, these opening sentences communicate judicial disquiet or uneasiness with the present procedures.

Nevertheless, two propositions can be extracted from the remainder of the above passage:

(1)  Before a formal application to recuse a judge is made, it is preferable that an ‘informal approach’ be made to the judge making the complaint and inviting his/ her recusal;

(2)  Where practical, it is preferable for a recusal application made against one judge to be heard by another judge.

We turn to argue that each of these two proposals are for differing, reasons defective.

The ‘Informal Approach’

It is to be borne in mind that the ‘postscript’ is made in the context of an appeal from the Family Division and historically ‘private’ hearings in that Court are generally the rule rather than the exception. Thus it might be said that the ‘informal approach’ is to be limited to that Court. However the judgment does not say so in terms. It is even more challenging to discern any legitimate distinction between recusal applications in a family case as opposed to any other type of civil case. Further, if it applies to civil cases why, by extrapolation, should it not logically apply to criminal cases. The proposition appears to be advanced as one of general application.

With respect to Ward LJ it is submitted that the validity of the proposal that in the first instance a party objecting to a judge should make an ‘informal approach’ to that judge can not withstand legal scrutiny. The seeds for its destruction lay in the genesis of the common law rule against the appearance of bias. It is neatly encapsulated by Lord Hewart CJ’s pithy statement that:

 “Justice must not only be done, but must be seen to be done.”

The common law has long recognized that the Courts do not exist in a vacuum. They exist to dispense justice according to law and that public confidence is maintained by the openness and transparency of this process. The obvious point is that ‘recusal’ is not some ‘private’ process transacted between the judge and the litigants: it is primarily about maintaining the public’s confidence and trust in the justice system by verifying the judge’s impartiality and thereby his independence.  This wider ‘public interest’ consideration is not vindicated if Ward LJ’s ‘informal approach’ model is adopted.

The legal objection is subtle but concrete. For reduced to it’s basic elements Ward LJ’s prior decision that Singer J ought to be recused rested on the premise that his ‘remarks’ had resulted in a situation whereby if he adjudicated,  justice would not be ‘seen’ to be done. But by parity of logic justice is not ‘seen to be done’ if litigants can recuse judges informally and behind closed doors.

It is thus a tragic irony that whilst it purports to champion the ideal that the ‘fairness’ of the judicial process fundamentally rests upon the impression of the “fair minded and informed observer”, the Court has casually alienated that touchstone by espousing an ‘informal approach’ recusal process that hides itself away from the ‘observer’ and divests him of the ability to be ‘informed’.

It is submitted that there is no justification for departing from that ancient common law principle. It is striking that Ward LJ fails to identify any reason for so doing, let alone a compelling justification. There were two other judges in the Court of Appeal and it is perhaps disappointing that none of them appear to have considered either the constitutional implications of the ‘informal’ process being adumbrated or even the effect thereon of the Article 6 ECHRFF guarantees or public policy.

Properly stripped down, it is submitted that there is no intellectual consistency in the rationale of El Faragy. It applied with rigour the ‘fairness’ principle to the Singer J, but neglected to do the same to Ward LJ’s proposals that the ‘recusal’ process may be conducted ‘informally’ and away from the public gaze.

Further, Ward LJ implies in the following passage that recusal is discretionary:

“Whilst judges must heed the exhortation in Locabail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague.”

With respect that is wrong and flatly contrary to authority. The notion that a judge can pay lip service to Locabail, deny the criticism but just pass the case on to a colleague is anathema to every concept of open justice. It is neither a question of ‘honour’ or discretion. Both a judicial oath and a public expectation stand as insurmountable obstacles to such an allegedly pragmatic course. The legal test for bias is not to be casually cast aside. It is most curious that Mummery LJ purported to agree with Ward LJ’s above statement because in AWG Ltd v Morrison [2006] 1 W.L.R. 1163, at para 20 he had previously opined to the very opposite. He said:

“…I do not think that disqualification of a judge for apparent bias is a discretionary matter. There was either a real possibility of bias, in which case the judge was disqualified by the principle of judicial impartiality, or there was not, in which case there was no valid objection to trial by him.” 

These two statements are logically irreconcilable and represent a spectacular demonstration of the Court’s double standards in El Faragy. It apparently unwittingly applies a stricture to the judge it fails to apply to its own ‘postscript’ proposals. Ward LJ’s judgment does little to inspire public trust in the transparency of the judicial process. He purports to authorize ‘secret communiqués’. He does not inform the reader who is to be privy to these communications, how the principles of audi alteram partem are to be safeguarded or even applied, how a reasoned judicial decision is to be rendered or publicly pronounced or to even challenge this ‘informal approach’. If  SingerJ. “may talk too much” then it is submitted his error is rather minor beside that perpetrated by Ward LJ.

The ‘informal approach’ is a repudiation of one of the most basic tenets of English law:  litigants are not to have secret communications with the judges determining their disputes. Justice is to be done openly. As Mummery LJ took pains to emphasise in AWG Group Ltd v Morrison [2006] 1 W.L.R. 1163 at para 29:

“[I]nconvenience, costs and delay do not… count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

At a stroke the judgment of Ward LJ paves the way for ‘informal’ approaches to judges by partisan lawyers representing litigants in pending cases before those judges. Maybe with a little pressure here and a little nudge there the skilled can thereby replace one judge with another they find preferable. Presumably, ‘telephone calls’ or little ‘chats’ in some of London’s prominent private members clubs are to be permitted.  If  that is the Court of Appeal’s idea of a strong, fair and independent judiciary, then we respectfully dissent. We can not think that this is what the ‘postscript’ in El Faragy intended. The sooner the Court of Appeal recants from this heresy the better.

The second proposition advanced in El Faragy is that where a formal application to recuse a judge is made, it is preferable that whenever practicable that application be heard by another judge. We make two objections to this proposition: one legal, the other pragmatic.

The Legal Objections

It is challenging to glean what the Court of Appeal intended to achieve with this proposition. The “core concept” must be that it is wrong or somehow contrary to natural justice for a judge to effectively sit upon judgment upon himself.  If that is the Court’s legal premise in El Faragy, we submit that it is per incuriam.

In Sengupta v Holmes [2002] EWCA (Civ) 1104 the CA was confronted by a challenge to the constitution of the panel of judges. One judge had previously denied permission to appeal in the same case and - the argument ran - he should be recused from the appeal – having previously expressed the lower court’s decision was correct. This argument was rightly and resoundingly rejected.

Laws LJ in this edited passage from Sengupta shows in his reasoning “the difficulties” with the El Faragy “postscript”:

“It is not only lawyers and judges who in various states of affairs may be invited — they may invite themselves — to change their minds… a readiness to change one's mind upon some issue… is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis… However much we may in the name of public confidence be prepared to clothe our [objective fair minded] observer with a veil of ignorance, surely we should not attribute to him so pessimistic a view of his fellow-man's own fair-mindedness as to make him suppose that the latter cannot or may not change his mind when faced with a rational basis for doing so… [J]udges in fact change their minds under the influence of oral argument…. Knowledge of it should, in my judgment, be attributed to the fair-minded and informed observer; otherwise the test for apparent bias is too far distant from reality. It is a commonplace for a hearing to start with a clear expression of view by the judge… which may strongly favour one side; it would not cross the mind of counsel on the other side then to suggest that the judge should recuse [himself]… Another aspect of our legal culture is the expectations which the judges have of each other. Far from supposing that his fellow-judge would or might stand by an earlier view for no other reason that he had formed it, any judge would positively expect that his fellow would without cavil alter his view if he were objectively persuaded that it ought to be altered; and, to be blunt, would think much the worse of him if he would not. This too, it seems to me, would be known to the bystander.”

Contrary to the implication of El Faragy, it is evident from Sengupta and that a judge is presumptively sufficiently intelligent, flexible and capable to adjudicate upon an allegation that his continued involvement in the case will unlawfully breach the rule against bias. The judge is not – as Ward LJ insinuates – inherently incapable of fairly and judiciously applying the legal tests to himself.

That is not to say that the judges are invincible. If a judge erroneously fails to recuse himself, then the appeal court stands ready to correct that error. But it is to go too far to lay down a blanket proposition that it is ‘preferred’ that a judge faced with a recusal application should start from the premise that another judge should determine it.

It is one thing for the CA to entertain some sense of disappointment with the frequency with which it has, of late, reversed some high profile recusal decisions. But it is quite another for it to interpret that state of affairs as indicative of an endemic failure by judges of first instance to correctly deal with such applications so as to justify the CA implementing radical procedural change.  Further, it is arguable that it is unlawful for the CA to purport to issue such ‘guidance’ in civil cases. Section 1(1) of the Civil Procedure Act 1997(“CPA 97”) specifically provides that:

“There are to be rules of court (to be called “Civil Procedure Rules”) governing the practice and procedure to be followed in [the civil courts]”

It is a legal axiom that the common law can not survive specific statutory intervention.

By s. 2 of the CPA 97 the power to make those rules is vested in the Rules Committee and not with respect, Ward, Mummery and Wilson LJJ’s powerful though their views may be. Thus the ‘postscript’ in El Faragy is not merely erroneous but ultra vires. If the senior judiciary wish to change the procedures there is a specific statutory procedure. Otherwise the postscript represents “the naked usurpation of the legislative function”.

The Practical Objections

Assuming that, notwithstanding our above critique, the El Faragy postscript is to be applied by the lower Courts, we rhetorically ask how it is ‘guidance’ is to be practically implemented on the ground?

Applying El Faragy what happens if on day one in a normal trial, the trial judge gives an ‘indication’ as explicitly contemplated in Sengupta and one side takes issue with it and applies to recuse the judge?  Is it sensibly to be suggested that proceedings are suspended whilst another judge within say the same building is found to ‘rule’ on the objection?

We do not answer these questions for you. Put bluntly: the El Faragy test lends itself to a chaotic disruption of the trial process. The practical consequences of the El Faragy postscript have not been thought through.

 The El Faragy ‘postscript’ might usefully serve to open the ‘procedural’ debate in favour of a rule change. But it does no more. It lacks a sufficient basis in English common law and does not withstand analytical scrutiny. Thus for the aforesaid reasons we consider Ward LJ’s suggestions to be jurisprudentially heretical, irrational and frankly best ignored.

Inside the Whale by Jennie Rooney

Jenny Rooney’s debut novel is a revelation. Finally a well written and thoroughly entertaining novel written by an English lawyer that does not revolve around law, crime or a dodgy solicitor. Instead the story deals with that other, seemingly insurmountable challenge, what makes love?

In 1939 Stephanie and Michael fall head over heels in love with one another. A love destined to last for forever. But then War comes and Michael joins the Royal Signals goes, off to fight for his country and refuses to return as a result of an incident in the trenches in war torn Africa. Kenya has an unforeseen effect which will change their lives and destinies.  The novel in many ways follows

Michael is in hospital and can no longer speak and so must communicate with a pad attached with a cord beside his bed. Stevie is mourning the death of her husband. We learn that they were once lovers and that the events of the war have kept them apart. They are ordinary people who, like many others, have regrets and now look on the world differently from when they were young. It was quite a sad story, because you hear both sides (alternate chapters were written in the voice of the two key characters) you see all the pitfalls coming and wish it could be different for the two of them. It's this wishing that shows what a good book it is.

Think Love in the Time of Cholera meets 84 Charing Cross Road and you will not be too disappointed.

age old problemconcernstwo lovers looking back on their relationship, their lives apart and the decisions which we make and how

Five stars

Inside the Whale by Jennie Rooney is published by Chatto and Windus and is available at all good bookshops for £12.99 ISBN 978-0-701-18273-1

John Grisham’s The Innocent Man

John Grisham’s latest legal thriller is unlike anything he has written before. Gone are the fictional characters and the larger by life stories; of the twists, intrigue and court room drama. In there place he provides a real life tale of corruption, incompetence and injustice. Grisham’s first work of non-fiction is nevertheless a hard-hitting white-knuckle ride through the inadequacies of the American legal system. It is regrettably a story we have heard all too often in recent years of a system stifled by the almost desperate need to convict someone, anyone!

In Grisham’s work he recalls the shocking rape and murder of a 21-year-old cocktail waitress in a town in Oklahoma. For five years the police were unable to solve the crime yet based on gut feeling they determined that the murderers were Ron Williamson and his friend Dennis Fritz. The only problem was that they did not have any evidence or real basis for such a determination. That was not however to stop them. With the assistance of junk science and the ever “reliable” testimonies of jailhouse snitches and convicts the two were charged. Both were found guilty. Fritz to life imprisonment and Williamson to death row. It is beyond comprehension to believe for one moment that these two men had anything whatsoever to do with the crime, but unfortunately in the American legal system that is not always enough.

Whilst this book is centred on the story of Williamson and Fritz other tales of incompetence and complacency in the US legal system are touched upon; be it the police, the scientists or even the courts themselves. Allowing controversial confessions; the wanton disregard to justice; to evidence tampering and to police brutality. This is a horrifying examination of a system in decay.

Whilst Grisham should be praised for writing such a book and giving his “celebrity” support to the on-going debate in the US about its legal system; he must however be criticised on this occasion for his style of writing. The book is written in a narrative almost statement-esque fashion. Grisham had the opportunity to interview most of the leading characters and read the crime reports, yet you get that feeling that perhaps as he was writing a non-fiction novel for the first time he felt somewhat restricted from writing with any passion or feeling. The prose is thus much more matter of fact; distant, almost unnecessarily objective in its style.  As such it is sometimes difficult to feel the genuine emotion for the characters as we might expect in such a real life tale. We are left wanting to understand Williamson and Fritz: their pain; their hopelessness and rather disappointing Grisham does not oblige us with this insight.

Nevertheless this is a terrifying tale which reminds us once more that the maxim that you are innocent until proven guilty in America only applies if you have either money or mental solitude.

The Innocent Man by John Grisham is published by Century for £18.99 – ISBN 978-1 8441-3790-9

Doreen Lawrence: - And Still I Rise

On the 22nd April 1993 Stephen Lawrence, an eighteen year old boy, who as it happened was black, was stabbed twice by a large kitchen knife in what was subsequently described as a "swift, merciless and vicious attack". His murder, by a group of young white men on a street in south-east London, was to cause shock waves that continue to reverberate throughout British society, the criminal justice system and the Lawrence family.

Doreen Lawrence’s hard hitting autobiography should in truth be a seminal text for all criminal lawyers. The story of Stephen Lawrence is one we all know far too well. His name is now synonymous with race crime, arrogance and police incompetence. The fact that no one was ever convicted of the crime is a tragedy for justice and society in Britain. The irony of course is that we all know who killed Stephen. The Daily Mail even went to the unprecedented step of naming the murderers and suggesting that they should sue if they were innocent. To date they have not accepted this offer.  Tragically, however, the Police failed to do their job to such an extent that Sir William Macpherson’s Report in 1999 was to conclude that the Metropolitan Police had been “institutionally racist”.

But Doreen Lawrence’s story is more than just a fight for justice. It is a raw, honest and at times almost intrusive look into her life.

“The second life that ended was the life I thought was mine. Since my son Stephen was killed with such arrogance and contempt I’ve had a different life, one that I can hardly recognise as my own.”

Doreen Lawrence talks openly of the breakdown of her relationship with her husband Neville after the death of Stephen; of her early loveless childhood in Jamaica and of her struggle for justice. For many she is a civil rights heroine. She took on the police and the establishment and to many she appears victorious. But in truth this book shows that Doreen is simply a mother trying to find justice for her son and a form of closure for herself. She is remarkably candid in her dislike of her new life: her constant struggle to balance a high profile campaign with a hatred of being termed “public property”.

“Many a time I have felt like giving up. There were days, weeks or months when I felt I’d had enough, that I was bashing me head against a brick wall, that no one was listening or taking any notice.”3

Whilst this is clearly not a literary masterpiece it is a heart-wrenching and honest account of her struggle against extraordinary odds to find some form of justice. Her candid bitterness and emotion run through the book, and in parts the book appears without natural balance. But Doreen Lawrence is a remarkable woman. Her courage, energy and dynamism are without recourse. Justice has thus far eluded her in her fight, but in her struggle she has undoubtedly made a difference to race relations and policing in this country. For Doreen Lawrence one feels that this is small comfort whilst her son’s murderers continue to walk free.

And Still I Rise – Seeking Justice for Stephen by Doreen Lawrence with Margaret Busby is published by Faber and Faber £16.99 hardback ISBN: 0-571-22754-6. Available in all good bookshops.

A lawyer for life?

Earlier this week a trainee solicitor complained to me about how their boss was bullying them. How they were being expected to work more than 60 hours a week and were given neither support nor recognition. Whilst I have every sympathy for the trainee I was forced to think of another lawyer suffering a more extreme degree of “bullying”. Chen Guangcheng, a blind lawyer in China was persecuted for exposing official abuses within his country. In 2005 Chinese officials initiated a forced abortion and sterilisation campaign against women in the Shandong province in part to maintain their “one-child” policy. Their actions were illegal and Chen put his head above the parapet to say so. However Chen’s comments were neither welcome nor tolerated. He was beaten, abused and put under house arrest. In June 2006 he was charged by local police for damaging property and organising a mob to disturb traffic (witnesses allegedly dispute this). In August Chen was sentenced after a two hour trial to four years and three months’ imprisonment.  There must have been a lot of damage to property. Tragically he is not alone. 

To such an extent that in 1990 the United Nations General Assembly endorsed the Basic Principles on the Role of Lawyers. It was drafted to assist states promote and ensure a proper role for lawyers in a democratic society. In many ways it was drafted to protect members of the legal profession against threats, intimidation, physical violence and, indeed, death. It is rather unnerving that such a principle, such a basic principle (sic) is in fact needed in a democratic and “free” world.

The Basic Principles cover a number of areas such as access to lawyers and legal services and qualifications and training, requiring Member States to ensure that their citizens have adequate access to lawyers; and further that such lawyers are “able to perform all of their professional functions freely without intimidation, hindrance, harassment or improper interference”.   So far so good, you would think. Also of some concern is Principle 23 which states that “lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.” It is perhaps somewhat scary that the UN feels it is necessary to indicate that even lawyers should be entitled to basic human rights!

But as Neville Chamberlain found out to his costs in the 1930s a piece of paper even with the best intentions in the world does not always provide a suitable level of security or protection. 

In April 2006 three leading Nepalese lawyers, known for their criticism of the ruling monarch, King Gyanendra, were forced to disembark from an aircraft before the flight was allowed to proceed to New Delhi. The incident came less than 48 hours after Nepal's government had agreed before the international community in Geneva to respect the rule of law and rights of human rights defenders and fulfil its legal obligations.

Following the plane incident approximately 1500 Nepalese lawyers took part in a pro-democracy rally organised by the Nepalese Bar Association to protest against King Gyanendra and to demand the restoration of civil liberties. The rally was shattered as the police opened fire with rubber bullets and tear gas resulting in injuries and fatalities, followed by a number of lawyers being arrested. Unfortunately Nepal is by no way unique in its treatment of lawyers. 

In Algeria two lawyers have been charged with offences relating to the illegal transfer to detainees of “money, correspondence, medicine or any other unauthorised object”.  The illegal objects were nothing more than the minutes of the court hearing relating to a detainee’s defence and a simple business card containing the lawyer’s contact details. Is it truly coincidental that both lawyers are human rights activists who have spoken out against the current regime?

Every day in some of the most dangerous places in the world, lawyers risk everything. Risk everything by simply doing their job. For many there is more at stake than just money or career development. At risk are their lives and their liberty. Be it in the face of intimidation or harassment. Why? Perhaps because they believe in justice? Perhaps because they believe in international laws and human rights. Or even because they simply believe in the rights of man.

But without wanting to sound too clichéd perhaps more importantly it is because they believe that one person can make a difference.

I’ll ask the Questions:- Lady Brenda Hale

I'll answer the questions: Lady Brenda Hale

When I was a child in the mid 1970s my mother was somewhat out of the ordinary in our community. She went to work. As such I was labelled amongst other things as a “latch key kid”. It was still even in the mid 1970s the norm for most women, well certainly in Kent to stay at home and ‘look after the family’. But things have moved on somewhat in the intervening period. There has been a period of catch-up for women in all professions. A climate of equality between the sexes, so to speak. But perhaps rather surprisingly (or not) the legal fraternity has been somewhat slow in inviting women into its ranks. It was only in 1962 that Elizabeth Lane was appointed as the first female county court judge and not until 1988 that Elizabeth Butler-Sloss became the first woman judge in the Court of Appeal. Now finally the last bastion of male hegemony has been breached: Lady Brenda Hale has become the first woman to enter that most austere of legal clubs: the Appellate Committee of the House of Lords. Heady times indeed for women everywhere.

Lady Hale’s story is all the more remarkable because her background was more academia than practising barrister. So when I met her recently in the House of Lords I started by asking her why she chose such a male dominated profession (as it was then):

“My Headmistress was convinced that I had the ability to go to Oxford or Cambridge and I thought of Law, and instead of her saying ‘oh, rubbish, girl’ or ‘girls don’t do Law’ or ‘nobody in your family does Law’ she actually said ‘what a good idea, but there’s not much we can do to help you’, but she did encourage me.  And I was right.  It was the right subject.”

Lady Hale born in 1945 was brought up in North Yorkshire. Her father the headmaster of a small boys’ boarding school whilst her mother “was in that generation of women, who qualified as teachers between the two World Wars and were really quite emancipated in their whole approach to things, as were indeed their husbands, but who were obliged to give up work when they married.” 

But circumstances were unfortunately to change that situation “when my father died, when I was thirteen, she picked herself up and dusted down her teaching certificate, and became the headteacher of the local primary school.  She was quite a remarkable woman”.

Perhaps it was her mother’s motivation which gave Lady Hale the drive to embark on in fact three different careers.

“After Cambridge I went straight to Manchester University as an Assistant Lecturer, as they then were, to teach Law. Whilst I was a student I had contemplated but rejected trying for the Bar, because I had no money and no connections and so on and so forth. But one of the attractions of Manchester was that they said at the interview ‘we would like you to take the Bar exams and do a pupillage and have some practical experience alongside the academic work’ so that is what I did”

Fortune favoured her. She spent the following three years in part-time practice at the Manchester Bar and at the University lecturing. Upon the advice of her then dean of law Julian Farrand she opted to concentrate on academia. A decision she was presumably not too upset with – she was later to marry Farrand.

It was however following her return to full time academia that her judicial progression really took off.

“Yes, there was a natural progression. Neither particularly quick nor particularly slow.   Obviously, I started writing articles and textbooks and the things that Academics do. I wrote a book on Mental Health Law which caused the Regional Chairman of the Mental Health Review Tribunal (who had known me at the Bar) to suggest that I might become a member of Mental Health Review Tribunals.  So I started doing that”

So that was the first step?

“That was the first sort of traditional step.  And then, at the beginning of the 1980s, the Lord Chancellor’s Department recruited a few Academics with some practical experience to sit as Assistant Recorders. I think that they were trying to diversify the Bench, and that seemed the obvious first step.  And so I trained and sat as an Assistant Recorder.”

And the rest as they say is history. But what attracted you to sitting on the bench?

"Two things!  One is new challenges, and the other is actually keeping in touch with the world of Litigation. Because I enjoyed it when I was a Barrister.  It was a good thing to be doing it - diversification - and of course, I am very glad I did it.”

What is so unique is that you followed a distinctly untraditional path.

“Yes completely different. The academic work led me to becoming a Law Commissioner in 1984 almost the same time as I started the baby judging. I carried on doing the part-time sitting while I was a Law Commissioner doing more and more of it and of course that was very convenient for everybody. And it, no doubt, made me visible with the powers-that-be who thought that just possibly it might make me appointable to the Bench in some capacity or another, so that’s what happened.”

It was also in 1984 that she wrote the influential tome Women and the Law, the first comprehensive survey of women’s rights at work, in the family and in the State. With that in mind I enquired as to whether she thought it helped that she was a woman?

“I don’t suppose it was a hindrance…”

Touché

“I think there does come a time when any system has to look at itself and say hang on – we have lots of women lawyers and hardly any women judges, and at least open itself up to the possibility that there might be appointable women in odd places.  To the extent that I, and one or two others, exemplified the fact that there might be appointable women in odd places well, yes, I'm sure it helped, and I hope it will go on helping.”

But would you agree that the law is still a gentleman’s club?

“As you know more than half of law students are women.  Entrance to the profession is at least half and half, and sometimes more than half. But the problem is that the attrition rate, especially the attrition rate from the places where women become visible for certain types of judicial appointment, is very high. But the Law is not the most family-friendly or flexible of careers. So it is obviously easier for men to make progress than it is for women.  That is obviously not an inevitable sex difference, it is a ‘the way people run their lives’ difference.”

And the judiciary?

“Our system of judicial appointment, especially for the senior posts, relies on long experience.  They are beginning to realise that the experience could be in a number of different fields. But that is a relatively recent realisation. So any club that you join by long experience of doing something else is likely to mean that there are fewer women, because there are fewer women with the long experience of doing something else for structural reasons and that also means that they will be men of a particular generation and a particular background.”

So were you accepted as a new member into the Judiciary with open arms?

“I think one of the good things was, I genuinely was in Family Law, unlike some of the earlier women appointments, who weren't genuinely in Family Law but they were put in the Family Division, possibly because it was thought that they could do less damage there, but I was genuinely a Family lawyer. This may have enabled me to demonstrate that I could do the job.”

So are you enjoying it here in the Lords?

“It is not possible not to enjoy it. There are only twelve Lords of Appeal in Ordinary, so it is a small, pretty friendly group of people.  Everybody has been very friendly – we are all very different.  I mean, although eleven of them are men and I am a woman. The men are all very different from one another, in character and personality.  So, very individual.”

So do you find it a struggle coming to judgments?

“It’s very interesting.  It’s nothing like as much of a struggle as an Appellate Judge, as it is as a First Instance Judge.  [As a] First Instance Judge, certainly in the Family Division, you are usually doing three things.  You listen to the evidence, work out who you believe and where the truth lies, or wade through the mass of documentary evidence, deciding which is the most important and which is not so important.  Then you exercise a discretion. There may be a point of law that you also have to think about, or you may have to remind yourself what the law is. Finally, you try to express your decision in a way that does not make things worse rather than better.”

So how is it different in the Lords?

“As an Appellate Judge, you are not on your own for a start. You are either one of three, five, seven, or even nine. So you are not shouldering the whole burden by yourself and also you are simply reviewing what the poor, bloody foot-soldier did in the first instance. But you are also very conscious, as an Appellate Judge, that whatever decision you come to is going to be binding on everybody else”

I read with interest that you are proud to be called a feminist. What does that mean?

“If you are asking me whether I am a feminist, I would say of course I am a feminist. But if you are asking me what is a feminist? I would say that I believe that women are entitled – you know, as the Declaration of Human Rights puts it – to equality, in dignity and rights.  And it’s as simple as that.”

If it were only as simple as that?

“Well, of course you then have to work out what we mean by equality, and you have to work out what we mean by dignity and what we mean by rights.  These are all difficult and I have devoted a certain amount of my time and thought processes to writing and talking about these things.  But that is what I mean by a feminist.  I think I would probably add to that the recognition that there are a lot of different ways of leading one’s life, and that it is, on the whole, in the interests of the human race if women can be persuaded to have babies.”

Have you seen the world’s population?

“Not too many babies. The babies that they want to have, no more and no less. But that being the case, there are certain inevitable distinctions that have to be drawn.  Again, it is difficult to work out which are inevitable and which are not.  Which are biology and which are sociology. And just as I would say that there are many different ways of proving one’s ability to be a decent judge, there are many different ways of succeeding in the world, and that’s what I'm interested in.”

You mentioned the Declaration of Human Rights, are you in favour of the legislation?

“Yes, I'm in favour of the legislation.  I think it has made us think about certain fundamental issues, in a way that we didn’t think about them before, and that’s a good thing.”

But are there too many laws?

“I was a member of the Law Commission, whose statutory duty was to simplify and modernise the law. This included reducing the number of separate enactments by consolidation and codification of both statute and common law, two very different matters. So yes of course, I believe that, if at all possible, law should be simple, clear and accessible.  We do seem to find it very difficult to do that.  There is a great enthusiasm to take a problem and say ‘there ought to be a law about it’, when maybe a better solution might be found elsewhere than in the law for tackling that particular problem.”

Or arguably there’s a law already there…

“Yes.  That is true.  Or arguably you could try and make more coherent the law that is already there, so that it was simpler and clearer.  And that is what we tried very hard to do in the Law Commission.  I think we succeeded with the Children Act in 1989, in taking a mass of separate pieces of legislation, which were incoherent and turning them into one coherent scheme that fitted together, so that everybody could understand what it meant.”

Do you believe that there is still a passion for the law? Or is it now all about the money?

“That is a very interesting question, and of course different people enter the Law for different reasons.  Having spent eighteen years amongst undergraduates, three of them as Admissions Tutor at Manchester University Law Faculty, one was aware of a wide range of different motivations of people coming into the Law.  You had some who came in because of family pressure, which sometimes had to do with parents wanting their children to get ahead, and have a profession, and be respectable. There were certain groups within which it was seen as being a step up from whatever they had previously been involved in.   Now you could say that that was a natural thing, but it wasn’t really, it was more a status and position thing.”

So it is no longer about righting a wrong?

“Well there were some who went into it for idealistic reasons.  They wanted to right all the wrongs of the world.  And there were some who went into it for unmixed materialistic reasons.  But most people probably have a mixture of those three – status, idealism and money.  And some went into it because they were genuinely interested, which is not quite the same.”

And you?

“I went into it because I was genuinely interested.”

An idealist then?

“No I did not go into it because I had a burning sense of the injustices of the poor, or the disadvantaged. Because I am not sure I knew much about that. I certainly did not go into it for monetary reasons, because again I do not think I knew much about that.  When I went into it, my ambition was to become a high street solicitor.  Because that was all I knew about the Law, and although they were comfortably off, they were not brilliantly well off, and so I do not suppose that I was that unusual.  But on the other hand, there are now many, many more people going into the Law, and universities are very anxious to offer Law courses because so many people want to do them.”

The problem with that is that there are almost too many people going into the law. Not enough jobs and a considerable degree of debt follows.

“That is absolutely right.  There are so many people going into the profession, or wanting to go into the profession, that it will  be difficult for them all to find legal careers of the sort that they probably thought of, when they first went into it.  They won't have wasted their legal studies if they’ve made good use of them. That’s the other thing about the Law. It plugs into so many other areas of life, that you should end up, after a Law degree, much better qualified for life than you were before.”

So are you in favour of increasing the gene pool for Judges?

“For the reason that I gave earlier, I do strongly believe that we ought to have a more diverse judiciary. If the only people who can become High Court Judges are successful silks, who practise regularly, and visibly, before other High Court Judges, well then it more or less stands to reason that there will be fewer women and fewer people from minorities, than there might otherwise be. It does not follow as night follows day that the only people qualified to do judging at a high level are the people who have been Advocates at a high level.  The Advocates may be very good judges, but they may not.”

It was in January 2004 that Baroness Hale became the first woman ever to join the ranks of that highest legal table in the country. By doing so she has brought a form of hope and emancipation to female lawyers everywhere. It is true that the appointment of a woman Law Lord is long overdue. But perhaps her wider legacy will be that recognition that senior members of the judiciary are no longer obliged to follow a single path. She has with her appointment brought a belief and an expectation that hard work, energy, diligence and common sense will finally be rewarded in the law and the judiciary. If the judiciary is to move with the times then such appointments must not be symbolic but the start of fresh ideas and real change. There are after all a considerable number of excellent legal executives just waiting for that opportunity to take their first step along the judicial ladder and perhaps eventually sit with Baroness Hale at that top table.

Guys and Dolls

What makes a great musical? Song, dance, a script and these days a big star. Well if that is the criteria, then Michael Grandage's hugely enjoyable production of the classic 1950s musical Guys and Dolls fits the bill. The star is Don Johnson, best remembered as that 1980s fashion icon come detective Sonny Crockett in Miami Vice.

Guys and Dolls is the story of Nathan Detroit (Johnson) the organiser of an illegal crap game in New York. With the cops on his trail, Detroit has to find a new venue for his game and needs some capital to pay for it. So he makes a bet with master gambler Sky Masterson that he cannot make the next girl he sees fall in love with him. The very next girl just happens to be Miss Sarah Brown (the surprisingly talented Amy Nuttall formerly of Emmerdale), the leader of a local Salvation Army kind of reform group, who fortunately happens to be rather beautiful. As luck would have it (in the clichéd way) Masterson falls in love with Sarah...                                  

The songs are familiar ‘Luck Be A Lady Tonight’, ‘Sit Down You’re Rocking The Boat’, ‘If I Were A Bell’ to name but a few. A remarkably uplifting and fun musical. JMH

Guys and Dolls is at the Piccadilly Theatre, Denman St London W1C.

What’s Truth Got To Do With It? By David Crigman QC

David Crigman QC is the latest in a long line of lawyers to turn their hand to fiction writing and in so doing introduces us to his heroine “beautiful Junior Counsel” Naomi Nicholas. It is perhaps ironical that they are never simply plain Jane. Crigman’s world is full of murder, blackmail and caricature. At the heart of his tale is his apparent conviction that everyone involved in the law has a secret past and ulterior motives for their actions. As such the concepts of truth and justice are simply hostages to fortune. The novel welcomes the reader into the grudges and game playing of QCs and their clerks in the criminal bar. Whilst Crigman clearly has an exceptional knowledge of the law, his characters become little more than one dimensional and somewhat stereotypical. The novel is not helped by his decision to scatter the prose with witness statements, medical reports and long dialogues of cross-examination. Whilst the final few chapters provide the reader with twists and turns, you are rather left wondering whether they really added anything to the story or were merely there because the writer believed them to be a requirement to this genre. That said this is an easy to read, entertaining yarn. .

What’s Truth Got To Do With It? Is written by David Crigman QC and published by Librario Books in paperback from all good bookshops under ISBN 1-904440-80-0

The Exonerated

In the summer of 2000 script writers Jessica Blank and her husband Erik Jensen interviewed 40 of the 89 Death Row inmates in the US to create the play The Exonerated : a disturbing testimony of the American legal system. Corruption; ignorance; racism and ambition. In many ways everything bad about the desperate rush to convict. In these testimonies the victims are those charged; those convicted and subsequently those exonerated.

This verbatim theatre is dramatically brought to life by the cold emotive performances of its cast.  Perhaps I am glamorising the production thus by talking about the present and previous artists who have appeared in Bob Balaban’s award-winning New York production of the Exonerated which started its sixteen week run at the Riverside studios in Hammersmith on the 21st February last. The list is exceptionally impressive: Robin Williams, Richard Dreyfuss, Vanessa Redgrave, Alanis Morissette, Danny Glover and Kathleen Turner to name but six. The names of the A-listers from both sides of the Atlantic who have appeared in the play goes on and on. But this story is not one of glamour, but a true story of six very different people who were condemned to death in the American penal system for crimes that they did not commit. Crimes for which they spent decades on death row awaiting their execution.

The Exonerated is made up of their true-life stories, in their own words. The tale of Sunny Jacobs, a mother of two who spent 16 years on Death Row on the basis of false evidence; Kerry Max Cook, a Texan who was wrongly convicted of murder; Delbert Tibbs, a black Chicago poet who was falsely accused of rape and murder while hitchhiking across America.

The performances are spell binding; compulsive and somewhat surprisingly invigorating. Whilst the cast changes every few days, the star performance is Sunny Jacobs her quiet resilience illuminates the stage, every word her character speaks (and when I attended she was played by Stockard Channing from the West Wing, although if you are lucky you may actually get the opportunity to witness Sunny playing herself – now that must be harrowing) is to a silent audience hungry to devour her every word.  Not only was Sunny on death row for a murder that she did not commit, but so too was her husband Jesse Tafero, under identical circumstances. He was not however exonerated. He lost his life to the currents of the electric chair “It took thirteen and a half minutes for Jesse to die. Three jolts of electricity that lasted fifty five seconds each. Almost a minute. Each. Until finally flames shot out from his head, and smoke came from his ears”

This is not a play for the faint hearted, but it is a play about hope. In places it is terrifying, disturbing and unforgiving. But then again, this is the real world. It is to be recommended.

Boozers, bail and ballcocks.

The one thing all non-criminal solicitors (that is to say solicitors not practicing criminal law) have in common, is the vague sense of envy, that your given practice area just does not seem to produce the kind of sexy, violent, racy stories that you get from criminal work.  Somehow the criminal lawyers always have some wonderful anecdote to dine out on and Steve Smith is no exception.   Set in the early eighties, this is the story of how he and a friend set up together in practice, and his subsequent attendance on the criminal fraternity of Rotherham.   Mixed in with his court appearances are cameos from his social life often set in the local pub, as well of course as the not infrequent appearance of the infamous escaping ballcock.  Whilst the author certainly comes across as a larger than life character and his client experiences range from the tragic to the laughable somehow the whole does not quite equal the sum of its parts.  At times the book leaves you feeling like the new person stuck listening to a group of friends reminisce about the “good old times”, sitting through the descriptive equivalent of someone else’s photos.    At the time you imagine it would have been hilarious, but somehow something seems to get lost in the telling.  The characters themselves seem almost less than substantial, as if parts of their tales have been left out to protect the innocent, or then again the guilty; which perhaps stems from the author’s desire for this to be the first in a lengthy series.

Boozers, Ballcocks & Bail is written by Stephen D Smith and published by Neville Douglas Publishing at £10.99 – ISBN 1-901853-67-5

Angela Canning (with Megan Lloyd Davies) Against All Odds: A mother’s fight to prove her innocence

“One sudden infant death is a tragedy, two is suspicious and three is murder until proved otherwise”.

This was the infamous verdict of Sir Roy Meadow, the paediatrician and former expert witness. Angela Canning was jailed for life in April 2002 for the murder of seven-week-old Jason in 1991 and 18-week-old Matthew in 1999. She denied this, claiming that the boys were victims of cot death, due to a genetic defect.

‘Meadow’s Law’ turned on its head the presumption of innocence. It created an impossible duty on the defendant to come up with a medical explanation as to why her children had died. The simple horrible fact is that there is no medical explanation for why some children die of “cot death”. The fact that neither Angela nor the medical experts could provide any explanation as regards the cot deaths should not of itself have meant that murder was the only option left. Meadow’s reputation and evidence however created an impression that his comments were gospel. They were not. His expert evidence condemned Angela to almost two years in prison.

This remarkable autobiography (co-written with journalist Megan Lloyd Davies) tells that story. The tale of a normal simple unremarkable mother whose life is traumatised after the death of three children within ten years to Sudden Infant Death Syndrome (cot death). When her third child Matthew dies sympathy turns to suspicion. The police turned her loss and depression into something more, something more sinister and perverse. She is subsequently charged with murder; convicted and for the next two years imprisoned. She is labelled a child murderer; spat on; mentally abused and assaulted.

Whilst this is clearly not a literary masterpiece it is a heart-wrenching and honest account of Angela surviving not only the loss of her children but the ensuing implosion of her life. This is a very personal and lonely story. It shows a family, Angela, her husband Terry and their daughter Jade trying to survive together as a family. Being split up and then reunited. It provides an insight into how innocent law-abiding people are thrust into the criminal justice system and where that system fails them. But perhaps with some pathos the most original part of their story is the ending. As a reader we form that inevitable presumption that because Angela’s conviction was quashed by the Court of Appeal the ending would be one of happiness. It is not. Angela, Terry and Jade are now involved in their biggest struggle - to rebuild a normal family life that has been devastated and shattered to its very core.

Against All Odds - A mother’s fight to prove her innocence by Angela Canning and Megan Lloyd Davies is published by Time Warner Books £16.99 hardback ISBN: 0-316-73304-0. Available in all good bookshops.

A Voyage Round My Father

Sir John Mortimer’s tour de force portrayal of his relationship with his father looks set to take the West End by storm. Mortimer's play, first shown in 1970 is autobiographical, showing both his early life and that of his relationship with his proud and often difficult father. The father is the very epicentre both of the family unit and of his son’s affections and Mortimer (the son) is seen struggling to succeed in the shadow of his father; a brilliant barrister with a cantankerous and cutting wit. As his aggressive courtroom persona and a passionate enthusiasm for Shakespeare and for the English garden become apparent, it is clear that Mortimer has cut and pasted from his father in finding his inspiration for Rumpole of the Bailey. It is perhaps interesting to note that Rumpole’s own relationship with his son is softer, loveable and more sentimental than the relationship between Mortimer and his father.

The point is made when his father loses his sight in an accident – he is up a ladder doing some gardening when he hits his head on a branch and is blinded. How terribly English. His father’s blindness is never mentioned by the family merely referenced when he demands that his son and wife “paint me the picture” of the world.

Derek Jacobi is masterful in his portrayal of the crotchety mischief making barrister cum father. Resolute to the end with his less than apologetic final goodbye: “I’m always angry when I’m dying”.  Jacobi uses his full range to both bewitch and transfix the audience despite the less than loveable character he plays. He is ably supported by Dominic Rowan who plays, or almost underplays the desperate son seeking his father’s love, acceptance and recognition.

There are fine supporting performances from Joanna David as the almost over supportive wife and mother and from Natasha Little as the son’s wife who refuses to be either over-whelmed or intimidated by the father. It is Little's performance as Elizabeth which allows the audience to almost vent their angst at the father through her,  for his comments, selfishness and complete ignorance of his son’s needs. As such her interaction allows the piece its sparkle and hold.

Thea Sharrock’s direction gives life and understanding to the play and allows the actors to both believe in and enjoy their performances. This play not only enriches the soul but reminds us that maybe our own family is normal after all.

A Voyage Round My Father is showing at the Donmar Warehouse 41 Earlham Street