Carbolic smoke bongs! A revealing post from BabyBarista

Regrets? We've all had a few. Especially in our misspent youths. But as the latest post from the BabyBarista blog shows, there are some quite simple steps you can take to remedy even the most embarrassing (professionally speaking) lapses in your past.

Chambers were discussing one of the candidates for a third six pupillage today.
“He’s by far and away the best-qualified of the applicants,” said OldSmoothie.
“I completely agree,” said UpTights. “But we do have one more issue to check over.” She looked over at HeadClerk. “What are the results of our social media vetting?”
“Er, well…” HeadClerk squirmed awkwardly.

Remember, a candidate for pupillage must not only be the best, he or she must be SEEN to be the best. Take care with your privacy settings, now...

Practice makes perfect: a good argument deserves the best citation

Some authorities are better than others; and some reports of those authorities are better than others. Don't take our word for it: the Lord Chief Justice, Lord Judge has just issued a new practice direction on the matter.

It reiterates what a previous Lord Chief Justice, Lord Woolf, said a little over a decade ago in Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194, namely that where a case has been reported in the official Law Reports published by ICLR it must be cited in preference to any other version.

We'll be reporting it in full in the Weekly Law Reports very soon, but in the meantime here is a preview of the relevant section:

"Citation of Authority

5. When authority is cited, whether in written or oral submissions, the following practice should be followed.

6. Where a judgment is reported in the Official Law Reports (AC, QB, Ch, Fam) published by the Incorporated Council of Law Reporting for England and Wales (ICLR), that report must be cited. These are the most authoritative reports; they contain a summary of the argument. Other series of reports and official transcripts of judgment may only be used when a case is not reported in the Official Law Reports.

7. If a judgment is not (or not yet) reported in the Official Law Reports but it is reported in the Weekly Law Reports (WLR) or the All England Law Reports (All ER) that report should be cited. If the case is reported in both the WLR and the All ER either report may properly be cited.

8. If a judgment is not reported in the Official Law Reports, the WLR, or the All ER, but it is reported in any of the authoritative specialist series of reports which contain a headnote and are made by individuals holding a Senior Courts qualification (for the purposes of section 115 of the Courts and Legal Services Act 1990), the specialist report should be cited.

9. Where a judgment is not reported in any of the reports referred to in paragraphs [6] to [8] above, but is reported in other reports, they may be cited.
　
10. Where a judgment has not been reported, reference may be made to the official transcript if that is available, not the handed-down text of the judgment, as this may have been subject to late revision after the text was handed down. Official transcripts may be obtained from, for instance, BAILII (http://www.bailii.org/). An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authority.

11. Occasions arise when one report is fuller than another, or when there are discrepancies between reports. On such occasions, the practice outlined above need not be followed, but the court should be given a brief explanation why this course is being taken, and the alternative references should be given.

12. If a judgment under appeal has been reported before the hearing but after skeleton arguments have been filed with the court, and counsel wish to argue from the published report rather than from the official transcript, the court should be provided with photocopies of the report for the use of the court.

13. Judgments reported in any series of reports, including those of the Incorporated Council of Law Reporting, should be provided either by way of a photocopy of the published report or by way of a copy of a reproduction of the judgment in electronic form that has been authorised by the publisher of the relevant series, but in any event (1) the report must be presented to the court in an easily legible form (a 12-point font is preferred but a 10 or 11-point font is acceptable) and (2) the advocate presenting the report is satisfied that it has not been reproduced in a garbled form from the data source. In any case of doubt the court will rely on the printed text of the report (unless the editor of the report has certified that an electronic version is more accurate because it corrects an error contained in an earlier printed text of the report)."

Three important observations may be made.

First, although this revokes and supersedes what was said in para 3 of Lord Woolf CJ's practice direction, it leaves intact para 2 (which deals with official neutral citations issued by the courts from 2001 onwards) and para 1 (which gives guidance on the form and delivery of judgments in the Senior Courts).

Secondly, it emphasises (in para 8), the superiority of reports produced (as all ICLR law reports are) by members of the legal profession, ie barristers or solicitors. It is worth pointing out that ICLR law reporters (who sign their own reports) attend hearings in person, and write their own reports: they are not merely a judgment collection or summary writing service. This accounts, of course, for the superiority of the resulting reports, as recognised by the long standing practice of citing The Law Reports in preference for rival series.

Thirdly, it recognises in an official practice direction the crucial role played by the British and Irish Legal Information Institute (BAILII) in collecting and making available the official transcripts of judgments delivered not only by the Senior Courts but a range of other courts and tribunals. Though these unreported judgments do not have the status of law reports, they provide an often essential and easily accessible resource for the study and practice of law, and as a charitable organisation ICLR is proud to support and co-operate with BAILII.

Open justice - or least said soonest mended?

We expect our judges to state their opinions in public - when giving judgment in open court. But in a week in which two senior judges have spoken outside court about the dangers of, er, judges speaking outside court, we should perhaps reflect on the other side of the same coin: the dangers of not being heard, in full, inside the court.

As you will no doubt be aware, if you visit our home page, ICLR publishes a daily update of recent decisions which change or clarify the law. We don't report every judgment because that's not our mission: we only report the cases that matter. But as you will see from this list, as it appeared one day last week, by an odd but not unusual concatenation of circumstances, EVERY SINGLE CASE was anonymised.

This is not to say that the cases could not be reported, or that the principles of law which they established could not be recorded for posterity -- and for the better study, practice and administration of justice. But facts have been suppressed. Identities have been concealed. There has been a diminution of the openness upon which the principle of public justice rests.

Judges are public servants and the judiciary is answerable to the public. If you read old law reports, you will notice how terse the judgments often are, and how necessary and useful are the accounts given by the reporter of the background facts, procedural history and counsel's argument (often punctuated by interjections from the bench) in helping the reader to understand the issues in the case. These days, judges are encouraged to give a much fuller account of the case, and of their reasoning, before setting out their conclusions. This is a service which benefits not just the parties in the case but the whole administration of justice. It helps concentrate the judicial mind, and ensures that justice is not only done but seen to be done.

A year ago, on 16 March 2011, Lord Neuberger MR gave a speech entitled OPEN JUSTICE UNBOUND? He gave it as the Judicial Studies Board Annual Lecture 2011 and in it he exhorted judges to ensure that their judgments were clear, concise and, above all, "accessible":

"Brevity is important, but clarity is more important, and, as the law, reflecting society as well as legislation, becomes ever more complicated, the duty of judges to communicate the law through their judgments as clearly as possible becomes ever more important."

The Judicial Studies Board is now the Judicial College; and Lord Neuberger MR has given another speech, a presidential address to the Holdsworth Society, WHERE ANGELS FEAR TO TREAD, in which (crudely boiled down) he has said that while judges should make their judgments accessible, they should not necessarily make themselves accessible. He urged the greatest caution against speaking extra-judicially:

Judges should obviously be very cautious about publicly discussing the controversies of the day when speaking extra-judicially. Cautious not only in the choice of subject, but also in the manner in which their contributions to public debate are phrased.

He quoted Lord Kilmuir who, over half a century ago (in 1955), had been asked for guidance on this subject, and who had said:

"So long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism. It would, moreover, be inappropriate for the judiciary to be associated with any series of talks or anything which could be fairly interpreted as entertainment . . ."

Lord Neuberger wondered how Lord Kilmuir and his brethren (for they were all brethren in those days) would have reacted, inter alia, to the present members of the Supreme Court discussing their role, approach to work, home life and recreations on television (as they had done in a documentary broadcast by Channel 4).

"As for their reaction to my colleague, Lord Justice Stanley Burnton, appearing as an amateur food critic on last week’s episode of Masterchef, the mind boggles."

The episode of Masterchef took place at Middle Temple, in the heart of legal London, but "senior judges giving their views on mango and passion fruit crème brulee" would have seemed outlandish to Lord Kilmuir, whose preference was for "Trappist silence" on the part of the judiciary. Lord Neuberger went on to make clear that he was not advocating a return to Kilmuir's rules, merely that judges should exercise caution when speaking extra-judicially, particularly when commenting on (let alone criticising) Government policy, discussing matters of public controversy or anything upon which they might in due course be called upon to decide judicially.

He described as "brave" the now Lord Sumption’s recent F.A. Mann lecture, entitled Judicial Political Decision-Making: The Uncertain Boundary, in which he had "questioned the extent to which the judiciary over the past twenty years or so has seen fit to interfere with the decisions of the executive" and noted that Sir Stephen Sedley, a retired judge of the Court of Appeal, had published a detailed critique of that view in the London Review of Books. "Controversy has certainly been engaged," Lord Neuberger noted drily. Did he think it would have been better if neither had spoken out as they did (least said soonest mended)?

In another recent speech, entitled INDEPENDENCE UNDER THREAT?, Lady Justice Hallett, giving the Bentham Association Presidential Address 2012, reaffirmed the principle that "Justice, of course, must be open" and noted that Bentham himself "argued the judiciary should operate under the watchful eye of what he called the ‘Public Opinion Tribunal'." But that did not envisage ill-informed criticism or the current rash of what Her Ladyship called "court-baiting", such as the press or MPs under the cloak of parliamentary privilege deliberately flouting court rulings and "publishing for the sake of it material the court has ruled confidential".

"Judges are meant to be sufficiently hardy to take the criticism on the chin, shrug it off and carry on doing their job. I have no doubt that our current generation of judges will continue to do just that. However, judges are only human. If, in the future, the press and politicians cross the line more frequently and more dramatically- what effect will the drip drip drip of public criticism have?"

Essentially, then, judges should "keep calm and carry on". They should probably not engage in extra-judicial entertainment or discuss politics or policy lest they encroach on a topic on which they may later be called upon to decide a case. But when acting judicially, in court, they have a duty to perform their function with the maximum possible openness and access. The fact that in a number of recent cases the names of parties were suppressed is not perhaps all that significant or surprising. There were probably good reasons in each case why it should have been done -- to protect children, to prevent prejudicing a pending criminal trial, etc. The problem is that it is becoming increasingly frequent, and not always justified. And it is the thin end of a wedge that grows to include the suppression or redaction of other facts, then the exclusion of the public and press from the hearing, and eventually the imposition of an order (a so-called superinjunction) precluding the reporting even of the fact of there having been an order, let alone who the parties were or what the case was about.

A law reporter's job depends on access to the court, to the hearing and to the judgment. A culture of secrecy is inimical to the common law system of precedent, in which law reporting plays such a crucial role. Any encroachment on open justice must, therefore, be clearly justified and, so far as possible, publicly explained. Whether or not judges choose to speak out extra-judicially, they should always do so, loud and clear, when acting judicially.

Children in need

This month’s edition of PTSR includes a trilogy of Court of Appeal decisions concerning various aspects of a local authority’s duties under the Children Act 1989 to children in need. All in the Public and Third Sector Law Reports, providing the best coverage of charity and public law cases.

R (O) v East Riding of Yorkshire Council (Secretary of State for education intervening) [2012] PTSR 328 “raises an interesting and important question about the relationship of the 1989 Act and the Education Act 1996” and about the “local authority’s obligations and powers under section 20 of the 1989 Act to accommodate children, which have given rise to much litigation in recent years.”

The issue was whether a child’s status as a “looked after child” ended when the local authority provided him with accommodation at a special residential school pursuant to a statement of educational needs (“SEN”). Cranston J held that it did: the accommodation was not provided under the council’s social service functions. The Court of Appeal reversed that decision.

The question of the claimant’s proper status under the legislation was of importance and not just of academic interest, since a local authority has duties to children in need into adulthood and it is, therefore, important to identify those cases where the benefits of looked after child status are available.

Rix LJ pointed out, at para 80, that the House of Lords has made it clear that short shrift is to be given to any claim by an authority that a child who requires accommodation within section 20 can be deprived of looked after child status by being provided with accommodation under another statute or label: see R (G) v Southwark London Borough Council [2009] PTSR 1080, a case involving the relationship between the child in need provisions of the 1989 Act and housing obligations under the Housing Act 1996.

However, it is not in every case that the 1989 Act will trump the Education Act 1996. Rix LJ identifies the relevant issue as whether the council can say that the child does not require accommodation under section 20 of the 1989 Act, as distinct from the 1996 Act. The question was which of one or two regimes were invoked by the claimant’s needs and SEN placement.

Rix LJ, with whom Smith and Richards LJJ agreed, said, at para 114, that on the particular facts of the case it was “impossible to regard the SEN placement as being provided wholly or mainly to meet the child’s educational needs, as distinct from being provided to meet both those needs and the needs for which he had become and was a looked after child.” It was plain, and plain to the council, that he “required full-time accommodation in his specialist placement in order to give him care as well as the educational assistance which his needs , and his parents’ inability to cope with and control him, demanded.”

The council never considered, let alone gave anxious scrutiny to, whether the factors which had led to respite care necessitated a continuation of the claimant’s looked after child status following his placement at the residential specialist school. They merely assumed that that status had come to an end with the ending of the respite care which had brought that status into being and thereby terminated his looked after child status on a false premise and unlawfully: paras 116, 119.

Where the claimant’s needs, social as well as educational had driven the placement, as the looked after child review team had long appreciated, it was impossible to regard the 1996 Act’s SEN regime as supplanting rather than supporting the 1989 Act’s looked after child regime. The 1989 Act was “intended to provide the holistic support for children in need who have, because of the provision of accommodation to them, come within the regime and status of being looked after children”: para 117.

R (O) v Hammersmith and Fulham London Borough Council [2012] PTSR 382 is another case involving an almost identical dispute as to the appropriate accommodation and education to be provided by a local authority for a child in need. The Court of Appeal (Rix, Lloyd and Black LJJ) decide, among other matters, that while the best of interests of a child are relevant in judicial review proceedings concerning the lawfulness of a local authority’s decision to accommodate a child in need under section 20 of the Children Act 1989, the principle in section 1(1) of the 1989 Act that the child’s welfare is paramount does not apply.

R (G) v Lambeth London Borough Council (Shelter intervening) [2012] PTSR 364 concerns the issue whether a local authority, whose housing department had provided a child with accommodation under its Housing Act 1996 duties, was required to treat the child (now an adult) as a “former relevant child” within section 23C(1) of the Children Act 1989 to whom it owed continuing duties. The Court of Appeal (Lord Neuberger of Abbotsbury MR, Wilson and Toulson LJJ) held that, in the circumstances, the accommodation ostensibly provided by the council under the 1996 Act was to be deemed to have been provided to G as a child in need under section 20 of the 1989 Act, so that the council owed him the continuing duties claimed.

By Isobel Collins, Editor,

Public and Third Sector Law Reports

To subscribe to PTSR, or find out more, click here.

Libel reform: freedom, censorship and debate

The stories that matter are the ones that go unheard. The threat of censorship is nothing new, but if we think that by living in a free country, with the right of free speech guaranteed by the article 10 of the European Convention on Human Rights, we don't need to worry about censorship, then we should think again, argues Nick Cohen in You Can't Read This Book.

Subtitled "Censorship in an Age of Freedom", Cohen's book analyses a number of ways in which, in the contemporary free world, writers are deterred from speaking out about important matters. They are not necessarily deterred by laws or those who enforce them. Rather, they are silenced by fear.

One of the ways this happens is the risk of giving religious offence and, more potently, of arousing the violent anger of self-appointed religious fanatics. The so-called Rushdie affair (the Ayatollah's fatwah and the fatal consequences which followed publication of Salman Rushdie's novel The Satanic Verses in 1988) is an obvious example. "No young artist of Rushdie's range and gifts would dare write a modern version of The Satanic Verses today," Cohen writes, "and if he or she did, no editor would dare publish it."

Offence is no offence, it's sometimes said. There are obvious ways in which free speech ought to be subject to limits (shouting "fire!" in a crowded theatre is the usual example given; publishing details on how to make a dirty bomb is another) but the whole point about free speech is that, in principle, it remains free, whether you like it or not. "Freedom of speech includes the freedom to spout claptrap," notes Cohen, "as regular surfers on the Web know."

The freedom has significance in the commercial world as well: as Jacob LJ noted in L’Oréal SA and others v Bellure NV (No 2) [2010] Bus LR 1579, at paras 8-12:

8. My own strong predilection, free from the opinion of the Court of Justice, would be to hold that trade mark law did not prevent traders from making honest statements about their products where those products are themselves lawful.

9. I have a number of reasons for that predilection. First and most generally is that I am in favour of free speech—and most particularly where someone wishes to tell the truth. There is no good reason to dilute the predilection in cases where the speaker’s motive for telling the truth is his own commercial gain. Truth in the market place matters—even if it does not attract quite the strong emotions as the right of a journalist or politician to speak the truth.

10. The right to tell—and to hear—the truth has high international recognition. Article 19 of the Universal Declaration of Human Rights 1948 says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to … receive and impart information …” Article 19(2) of the International Covenant on Civil and Political Rights 1966 says: “Everyone shall have the right to freedom of expression; this right shall include freedom to … receive and impart information …” Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms says: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information …” Article 11(1) of the Charter of the Fundamental Rights of the European Union (OJ 2000 C364, p 1) says: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas …”

11. Of course the right of free expression (which clearly applies in principle to expression for commercial purposes, see para. 4.10.16 of Lester, Pannick & Herberg, Human Rights Law and Practice, 3rd ed (2009), and the European Court of Human Rights cases there cited) cannot be and is not unqualified. But any suggested rule of law which stands in the way of people telling the truth, whether the context be political, commercial or otherwise, ought to be scrutinised with care and justified only on the grounds of strict necessity.

12. Any such scrutiny should consider not only the right of the speaker but also of his hearer. For the right of free speech extends not only to those who wish to tell the truth, but also those who would wish to hear it—the words are “receive and impart”. In terms of the market place the hearer’s right to receive information translates into the right of the consumer to make an informed choice about products on the market.

Another obstacle is the risk, often faced by whistleblowers, of losing your job. Cohen describes how the current law appears to lock would-be whistleblowers in a Catch-22: the law says employees should first notify their own bosses of their concerns, unless they have a reasonable belief that if they do so they will suffer a detriment; but if they don't go to their bosses, they will be unlikely to have any evidence of what would have happened to them if they had done, to back up their "reasonable belief".

It's not just criminality or negligence that needs to be exposed, Cohen argues. If some of the people working in the big financials had not been intimidated against speaking out, there is a good chance the worst of the financial crisis might have been averted. That doesn't of course explain the Nelson eye of the regulators and the government departments who quailed to quiz the goose that laid such golden eggs. (Golden eggs that ultimately proved so addled.) And it doesn't deal with the way some commentators who did speak out were dismissed as cold-feet Cassandras or moaning minnies. To be proved right about something so catastrophic is not exactly heart-warming either. But a few more heroes like them could have woken the world up to the bubble it was living in.

Another obstacle to free speech cited by Cohen is the power of the rich, whether corporate or individual, to silence critics by way of the law of libel. In this respect, he is pushing at an open door. Nor is he alone is doing so. The Libel Reform Campaign has been lobbying for change in the wake of cases such as that of Simon Singh (see British Chiropractic Association v Singh [2010] EWCA Civ 350; [2011] 1 WLR 133) as a result of which it became clear that even scientific debate was being stifled by the law of defamation. Cohen cites other instances, and connects the issue with what he sees as an imbalance between the protection of privacy (especially for the rich) and the right to free speech and the rise of the super-injunction. He adds a good deal of heat to what is already a heated debate.

But the present government is aware of the need to reform the law of defamation. There's a draft Defamation Bill which was considered by a Joint Scrutiny Committee last year. Recently, the government published its response to the committee's report. Now the Libel Reform Campaign has published its response to the government's response.

On 15 March the Libel Reform Campaign held a rally at Middle Temple, with advertised speakers set to include Simon Singh, Lord McNally and Sir Stephen Sedley. Did you go to the rally? Please add a comment and say what you thought of it.

Meanwhile, do read the book. It's couched in urgent and sometimes overheated prose, but it's a matter of urgent interest to anyone who believes that they live in a free country.

Nick Cohn's book is published by Fourth Estate and costs £12.99 -- or £7.79 from Amazon.

Pupillage Hunters - win your very own Babybarista pupillage survival kit!

Following the runaway success of ICLR’s Pupillage Survival Kits giveaway at the TARGET National Pupillage Fair at Lincoln’s Inn on Saturday 3 March 2012, ICLR is offering four lucky pupillage-hunters the chance to win our last few remaining survival bags.

Those lucky enough to nab themselves a bag at the Pupillage Fair will have found their very own BabyBarista coffee mug, gourmet coffee (both featuring Alex Williams’ excellent artwork) and ICLR Plus card safely stowed therein. One lucky recipient (@Barnesy_) liked his so much he photographed the contents and proudly posted it to the masses on Twitter.

We at ICLR are, however, going to make you work for your very own Pupillage Survival Kit. To win, here’s what you need to do:

• Submit a blog piece to Daniel.hoadley@iclr.co.uk explaining what your favourite case is and why you find it so fascinating.
• You can choose any case you like, so long as it has been reported by The ICLR in The Law Reports (AC, QB, Ch or Fam); The Weekly Law Reports (WLR); The Industrial Cases Reports (ICR); The Business Law Reports (Bus LR); or The Public & Third Sector (PTSR).
• The word limit on submissions is 1,000 words, please do not use footnotes.
• The deadline for submissions is Thursday 5 April 2012.



Pupillage Survival Kit in all its glory! Photo: (@barnesy_)

• To ensure you receive your Survival Kit, please ensure that you provide your postal address when you submit your blog piece.

The four best pieces will be posted on The ICLR’s blog (http://theiclr.blogspot.com) and the four winning authors will be sent their prize when the winning pieces have been published.

My favourite case is the Court of Appeal’s decision in In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. What’s yours…?

Avoid the imposter syndrome with the ICLR online

You're a pupil, about to embark on your second six months. You've finally earned the right to appear in court on behalf of a client. You've got your first brief. Nervous? You should be.

“The problem is,” as one of the pupils depicted in the latest BabyBarista blog puts it, “that I’ll feel like a complete fraud. I mean, people have this image of barristers being all so well-qualified and everything and in actual fact I’ll have absolutely no idea what’s going on at all.”

This is what's called "imposter syndrome". Only one thing can save the day: a thorough knowledge of all those really crucial precedents to support your client's case. Or as TheBusker puts it, "Always take along the ICLR online case reports. Not only does it win over even the most pompous of bullying judges but it also acts as a great comfort blanket.”

TheBusker looked at them reassuringly before adding, “So remember, you’ll never feel like an imposter with your ICLR cases at the ready.”

Read the whole post here.