Legal Hackette Lunches with Sally Smith QC

imgresOver a light lunch of lobster and prosciutto croquettes and a small sauvignon blanc at J Sheekey’s, the clinical negligence silk whose biography of eminent Victorian barrister Sir Edward Marshall Hall is out this month, consider what makes a great advocate, the stress of taking capital cases and the changing legal times.

Sally Smith QC established a medical law practice at London’s One Crown Office and has worked on some of the most high-profile cases, including the Alder Hey hospital child organ retention case, leading the prosecution of the doctor who sought to draw a link between autism and MMR and representing the strategic health authority in the Mid Staffs public inquiry.

And she met her cardiologist husband, Professor Roger Hall, who was her expert witness during a long-running clinical negligence case.

But she fell into law by accident, in the first term of a history degree at the LSE under the tutorship of the, then unknown, David Starkey. ‘I went to a lecture thinking it was going to be on the Tudors, but it turned out to be on the law of contract. I felt too shy to clamber out over all of these denim-clad knees, so I sat it out.’

Finding that law floated her boat more than history, Smith told Starkey that she wanted to swap subjects. ‘He said: “It’s entirely up to you, but you’ll be terribly, terribly bored”’.

Smith has always been passionate about biographies. ‘I don’t care who they’re about. I’ve always had this preoccupation with the nature of truth,’ she says, apologising for sounding ‘terribly pompous’.

‘It ties in very well with being a lawyer. I’m interested in versions of events and have leant there’s no such thing as truth’.

Pointing out that law and biography are about looking at evidence, she says: ‘This sounds really nerdy, but if I read a biography or a diary, where the subject has been to a dinner party, I’ll go and look up somebody else who was at it and read their account of the same dinner party.’

Marshall HallFor years, she says, she had fancied penning one herself, but struggled to find an appropriate subject. She read the first biography of Marshall Hall, written by barrister and Tory politician Edward Marjoribanks and wanted to find out more about the man behind the myth, from a modern perspective.

‘Because it was written in 1929 it’s very restrained about his personal life and quite uncritical. I thought it would be interesting to see what he was really about. I began some Googling and it sort of turned into a project’.

Her internet sleuthing turned up an auction house selling artefacts that had belonged to him, including a desk and smoking jacket. Pursuing the trail, she wrote asking the auction house to pass her details on to the seller.

‘Two weeks later the phone rang and it was a lady in Wales. Her father had been Marshall Hall’s daughter’s executor. Marshall Hall’s daughter had never married and left everything in her house to this woman’s father’.

The lady had boxes and boxes of his papers, which had been gathering dust in her loft for years. Smith drove down to have a read and was then on a roll. From the papers, she found a close friend of his at the bar and contacted his family.

He had prosecuted Marshal Hall on many occasions and his family had kept a lot of the briefs. ‘I was literally undoing the pink ribbon on briefs which hadn’t been undone for a hundred years. It was extraordinary’.

Marshall Hall was involved in some of the most famous trials of his age, including the Camden Town murder, Seddon the Poisoner, the Brides in the Bath, the Green Bicycle Murder and the Murder at the Savoy.

Finding out about them, did not require much detective work. ‘He was the most consummate self-publicist you could possibly imagine and kept every press cutting from his first case, when he was totally unknown. They’re all in Inner Temple library – 38 volumes.’

Hall, born in 1858 and died during a trial in 1927, notes Smith, saved more people from the hangman’s noose than any other barrister. A combination of his moving and passionate oratory, charm and good looks saw him achieve a level of fame that no other barrister has, or will.

‘He was absolutely adored by the public, who felt that he was a saviour of the common man. He was a film star figure and showman. The newspaper headlines called him the handsomest man in England.’

‘When he died, the King sent a telegram to his wife, all the shops along the funeral route closed, cars and buses stopped and the working men in the street doffed their caps and stood in reverence as the cortege drove passed’.

Explaining the secret of his success, she observes: ‘He was six foot three, when the average height was five foot eight. He was said to be impossibly charming and he was famous for having the most beautiful voice.

‘This may not be what people like to hear, but if you’re a man being very tall and, whatever sex you are, being exceptionally good looking, is inevitably going to help’.

She adds: ‘He had the raw material – a mixture of real emotion and technique. In the end, you’ve just got it or you haven’t, even now. You can train anyone up to a point, but the extra bit that makes someone exceptional is innate’.

Advocacy then, says Smith, involved a lot of theatrical technique and would seem ‘ridiculously over-dramatic’ nowadays, but it determined the outcome of cases more so than today because people were tried on so little evidence.

‘Forensic evidence was at an embryonic stage. It wasn’t until 1901 that they were able to distinguish human blood from animal blood, finger-printing evidence was not used until 1903 and there was no court of appeal until 1907.’

‘People were hanged pretty soon after being convicted. I don’t think we realise what an extraordinary pressure that was on the bar. To have a healthy man whose entire fate was resting on what you happened to say on a particular day, is a very odd thought’.

Marshall Hall, says Smith, was haunted by the people that he did not get acquitted and he would write to them afterwards saying ‘may God have mercy on your soul’.

His private life, she notes, was just as sensational as his public life – with two turbulent marriages and mistresses.

‘He married his childhood sweetheart with whom he had a terribly miserable marriage from the word go’. Teasingly, she says: ‘You’ll have to read the book to find out why’.

But she does give away that it ended in tragedy after she had an affair with a French officer in the Indian army. ‘He sent her off for an illegal abortion in the most sordid of circumstances and she died after the most dreadful botch-up. The abortionist was charged with her murder and tried at the Old Bailey while Marshal Hall was a very young barrister’.

After her death, says Smith, Marshall Hall ‘went into complete decline and was desperate with unhappiness for years’. But the experience, she says, made him acutely aware of the suffering of women and he became famous for championing women throughout his career.

‘In the day when prostitutes were regarded as absolutely disposable and judges described them as brazen and wanton, Marshall Hall stood up in front of an all male juries and said these women were what men had made them’.

She quotes the line from the speech that made him famous: ‘As a prostitute sat in the dock weeping, he said: “look at her members of the jury – God never gave her a chance, won’t you?”’

Former barrister and broadcaster, Clive Anderson, wrote the foreword to the book. ‘He said that Marshall Hall had emotional intelligence. I think that’s true, and that’s why people loved him,’ says Smith, who admits to wishing that she had made the observation herself.

Having recently become engrossed in The Archer’s storyline of Helen who, after a slow burn of emotional abuse, snapped and stabbed her controlling, manipulative husband Rob, Smith is sure Marshall Hall would have been fighting Helen’s corner. ‘I’m sure he would have done it beautifully’.

She is equally as confident that he would not have had much time for the dreaded Quality Assurance Scheme for Advocates (QASA). ‘One of the things Marshall Hall was famous for was being indescribably offensive to judges. So I don’t think he’d think much of the idea of being assessed by judges. I think he’d treat it with contempt’.

Marshall Hall, says Smith, paid the price for his contempt of the establishment. ‘He was never made a High Court judge, and people have always questioned why’.

Smith thinks she has unearthed the reason – contained in a handwritten footnote in parliamentary archives. But she is giving nothing away. ‘You’ll have to read the book to find out.’

Having got her first book under her belt, Smith is keen to write another. She is not going back to practice, but will remain an associate member of her chambers, while she works on it. ‘I feel really in need of a change and I’d like to try to reinvent myself before it’s too late and I just retire’.

The next biography will be another legal personality – someone who is ‘interesting and also dead’.

‘My perfect period is the Marshall Hall period. He spanned the late Victorian and early Edwardian era, which was the beginning of a system of recognisable English law.

‘The law courts in The Strand were built, a new way of administering justice came in, with daily cause lists and things that made the public aware of what was going on. The Bailey was built in 1907,’ she says.

The period, she says, is not too distant in time that she cannot envisage it, but distant enough to be romantic.

She regrets the loss of the former romance of the Inns of Court, but points out that she, as a woman, would not have been admitted to the bar at that time.

‘It wasn’t until the First World War that women could come to the bar. When women first served on juries, they had a special room with mirrors and hairpins, and an article in The Times questioned how they would be able to do their public duty and still be able to perform their domestic duties.’

On balance, she concludes: ‘I think we should be glad of the changes that have taken place since then’.

Marshall Hall: A Law unto Himself is published by Wildy & Sons.

Legal Hackette Lunches with Julia Salasky

Over toasted courgette bread with grilled halloumi and a humble glass or two of Adam’s ale at Lantana Café on City Road, the former City lawyer who left a job at the United Nations to start CrowdJustice – a funding platform to raise the costs of legal actions, discusses how the first year has gone, the importance of social media and how crowdfunding has become mainstream.

headshot (1)Julia Salasky launched the UK’s first crowdfunding platform for public interest litigation a year ago. Since last May CrowdJustice has raised more than £600,000 to fund more than 45 cases. Around 90% of the cases posted on the site have raised the funding needed to get off the ground, with donations ranging from £1 (the minimum sum permitted) to £1,000 and the average being around £35.

The cases funded so far have been enormously varied, dealing with environmental and employment issues, whistleblowing, public policy decisions, and the Human Rights Act. They range from an elderly man challenging a local council’s decision to restrict his access to his wife, who has dementia and lives in care home to, a woman fighting for equal rights for cohabiting couples and a campaign to stop Sheffield County Council felling trees.

The plea from junior doctors to fund a challenge to the Secretary of State’s imposition of a new contract was the most successful in terms of fundraising, raising £85,000 in just three days and a total in excess of £133,000.

Current and recent cases include those from specialist legal charity, the AIRE Centre, which is looking to challenge the joint Met Police and Home Office initiative, Operation Nexus, that allows people to be deported from the UK without any convictions; and an appeal for funding from the Justice Gap and Justice Alliance to publish PROOF – a one-off magazine telling the public the ‘definitive story of legal aid’.

The ‘biggest success and most exciting case,’ so far, says Salasky, has been the intervention by grassroots campaign group JENGbA’s (Joint Enterprise: Not Guilty by Association), questioning the law of joint enterprise, which allowed people to be convicted of murder even if they had not inflicted the fatal blow.

It had been widely used to prosecute cases involving gangs of young people, and claimed campaigners, lead to many miscarriage of justice.

In February, in the case of R v Jogee, the Supreme Court agreed and ruled that the law on joint enterprise had been wrongly interrupted for 30 years.

‘We took the whole team to the Supreme Court to watch the judgment and to see the immediacy of what we’re doing. JENGbA supporters were crying and hugging each other – we thought “this is what it’s all about”.

‘At CrowdJustice, in a way we are just a platform, but in a way we exist to create access to justice. For JENGbA to have pushed to create this change in the law and for us to have played a small role in it, was really exciting’.

Born in Virginia to an English, journalist mother, and American, attorney father, Salasky qualified into the litigation team at magic circle firm Linklaters in 2010, before moving in-house at the United Nations.

Her first year at the UN was spent in The Hague working at the International Criminal Tribunal for the Former Yugoslavia, before spending two and a half years at UNCITRAL, the UN Commission on International Trade Law.

It was during the latter period that the seeds for CrowdJustice were sown. ‘I engaged a lot with the tech community on projects and saw their passion to use technology to change people’s lives for the better’.

So, she took the bold decision to leave the UN and bring the embryonic idea to life. Initially, she combined it with working for an environmental NGO, before taking the plunge full time.

‘I realised that it would only work if I put 100% into it,’ she says. ‘I wasn’t comfortable at first taking that risk, but then I met this 22-year-old guy who was starting something up.

‘When I started probing on the details of his project, his response to everything was “I’ll deal with it”. This is the approach you have to take to starting anything new – you just have to blast through any objections. Nothing ever gets started if you stop at the first hurdle.

But, she adds, ‘it was a leap of faith and that’s why watching JENGbA at the Supreme Court was so exciting – we saw the result’.

CrowdJustice came onto the scene as the legal aids cuts started to bite. But, says Salasky, that was a coincidence. ‘Although things became more critical after the devastating cuts, legal aid has been in retrenchment for years and years.’

In most cases for which funding has been sought, she says, the parties would not have been eligible for legal aid before the cuts. Rather they are brought by people who ‘can’t afford access to justice’ for all sorts of reasons, ranging from court fees, to adverse costs risks, to legal fees.

‘I’m hoping we can provide an alternative source of funding for people, but it wasn’t our intention to fill the gap left by the withdrawal of legal aid,’ she says.

In any event, she adds, the £500 million funding gap is too big for CrowdJustice to fill and the platform cannot offer the automatic protection against an adverse costs order that legal aid affords.

‘What’s really powerful about crowdfunding is that we’re allowing communities to come together to support someone — that is way more empowering that going to the government for legal aid.

‘If there are 300 people behind you and willing you to succeed – there is something very empowering about that, both for the person raising the money and for the community around them who have the chance to help someone’.

She continues: ‘What we’re trying to do is say to people that they might feel like they’re alone and that they have no money, but they can achieve something if they get lots of people to come together – whether it’s change in a personal situation or change at a policy level — and that is a huge thing to be able to do’.

Salasky compares CrowdJustice to a ‘virtual whip-round’. Parties looking for funding must have a legal representative, she explains.

When someone has a case that affects them and others in their community, they (the case owner) set up a ‘case page’ with details of the issue and a funding target to be reached within a certain number of days – typically 30. Only when the target is met, will the monies be collected from those who have pledged support. Second, or ‘stretch’ targets can be added to meet funding for additional legal needs.

There have, she says, been a couple of cases that have been unsuccessful, though most have yet to reach the final stage. Where a funded party loses, the complainant is responsible for any adverse costs order, although parties can crowdfund for the additional liability.

‘Because the donors are not investors, they are not getting a financial return and they are not exposed to an additional amount beyond their contribution,’ she explains.

CrowdJustice is still a small organisation, with only four staff. It is funded by private investment from angel investors and takes a 5% cut of the funds raised. In addition, its payments processor (Stripe) deducts a fee of 1.4% + 20p for every transaction.

‘That means 93.5% of funds raised go directly to the cases,’ which, says Salasky, ‘sounds so reasonable’ that she finds the question of justifying it hard.

‘We’re running an organisation in a new way and I’m really proud that so far we are managing to sustain a 5% model,’ she adds, before drawing a comparison with third party funders who seek to make millions from their investments – or charities, where the percentage that goes to administrative costs can be far higher, and less transparent.

While Salasky states that CrowdJustice is really just like taking a petition to the next level, by petitioning the law, she says it would not work so effectively without the internet and the social media tools that it makes available.

Half of the funding raised, says Salasky, tends to come from people reading Facebook posts. ‘We try to help funders figure out a social media strategy and look at ways they can start building a community.’

The ability to build a community, says Salasky, is key to successful crowdfunding. She gives the example of a ‘dynamic’ junior doctor who was fired after he raised concerns about patient health and safety concerns.

‘Until he started to crowdfund, he had no Twitter account and was not active on Facebook. But he managed to leverage every tool available to him to tell people about his case, and he got about 1,000 people funding him’.

Some people, acknowledges Salasky, do not have the energy, time or support to make it work. ‘That’s why it’s hard for crowdfunding to be a panacea, because the most vulnerable people simply won’t be able to create that level of community support’.

And the internet, she adds, allows people to track the progress of the cases they have funded and see the value of what they have been part of.

When she launched CrowdJustice, Salasky says, she did not know what the take-up would be, because it was so ground-breaking. Now that it has been going for a year, while it has been successful, she does not know the extent of the need for funding.

‘We don’t know if we’ve just scratched the surface, or whether we’ve maxed out and this is the pinnacle of crowdfunding in the UK. But it’s cool to see lots of different cases get funded, and to see what people are inspired by – it’s usually the human story of someone trying to create change for themselves or their community’.

Last month, it launched its first bid to fund a project rather than in individual case. Ipswich and Suffolk Council on Racial Equality is seeking to raise funds for its Tackling Discrimination in the East project, to bridge a funding gap while it waits for the outcome of its application for renewed funding from the Big Lottery Fund.

Third party funder, Balance Legal Capital, is providing some sponsorship in the partnership that sees legal charity, legal crowdfunding, and a third party funder coming together to improve access to justice.

The CrowdJustice team is also working on publishing a ‘find a lawyer’ guide – ‘to enable people to take the first step’.

‘Accessing legal advice is really hard. Loads of people don’t know where to start to find a lawyer. That’s not a problem that is restricted to people with low incomes – it’s common to most people’.

For now, they want to focus exclusively on crowdfunding. ‘We have managed to build momentum. Our ambition is to make sure everybody is aware that this is an option – whether it’s the lawyers or the parties themselves.

‘Crowdfunding is no longer a fringe thing. It’s changing how people access things from investment opportunities, to buying houses, to their studies.’

But, Salasky finds it a particular sweet fit in the world of law. ‘It’s a very innovative way to help people who aren’t big come together to be a Goliath. In law that’s perfect – to have equality of arms in that way’.

Legal Hackette Lunches with Peter Noorlander

Over spicy noodle soup and a zingy ginger and lime juice at Urban Orient, in the heart of Crystal Palace, in the week of World Press Freedom Day 2016, the tireless press freedom fighter discusses his new strategic civil rights litigation project, global issues around libel laws and why the Supreme Court is dragging its heels over the celebrity threesome ruling.

imgres-1Peter Noorlander, the Dutch-born and South London-cool international human rights lawyer has just moved on from the Media Legal Defence Initiative (MLDI), which he co-founded.

MLDI provides legal help for journalists, bloggers and independent media outlets across the world. It is representing jailed, award-winning Azerbaijan reporter Khadija Ismayilova with Amal Clooney and in March 2015 was awarded Columbia University’s inaugural Global Freedom of Expression Prize.

Noorlander continues his fight with a project to encourage and facilitate strategic litigation regarding digital rights and freedom of speech online, to challenge surveillance and data retention practices.

He and what he calls an ‘ecosphere’ of a couple of dozen lawyers and human rights organisations across Europe are working with a group of donor orgnisations to build a coherent and coordinated approach to such litigation, similar to models used seen in America.

The US, he says, has a ‘well-developed civil rights scene,’ that is happening to a degree in the UK, but lacking in the rest of Europe.

‘In the States you have a long history of people standing up for their rights and using the courts to do that.

‘In Europe, because of the traditions of social democracy and the way civil society has come about, you have much less of a culture of taking the government to court to enforce your rights’.

There are one-off examples in Europe, he notes, citing Austrian student, Max Schrems, who litigated against Facebook and successfully challenged cross-Atlantic data sharing rules, forcing Brussels to renegotiate its entire ‘safe harbour’ principles.

‘That was just one guy, with a lot of passion, working in his spare time with a couple of people helping him for free, but absolutely no framework around him to support him,’ observes Noorlander.

‘They are high on passion and energy, but it’s not a sustainable way to do human rights litigation.

‘What he, and others like him need, is support – a mechanism around them to professionalise it. But nobody’s going to do it if there isn’t some money behind it – people need to pay the bills’.

A lot can be achieved through litigation to clarify rights, he explains, something, he says, that is especially important now with new data protection and surveillance laws coming in, that infringe privacy.

‘The use of data is going to determine so much of our lives over the next 10,15 and 20 years and all sorts of decision-making is algorithmic’.

But the public, he says, do not realise how much information about them is out there. He speculates that is because the subject is ‘not very interesting’.

‘Data protection is so important, but it’s such a technical area of law and the two words immediately make your eyes glaze over. It’s so boring, even for lawyers. So it’s kind of a challenge. Big data is a big thing’.

Born in Holland, Noorlander studied law at the University of Maastricht and completed an LLM at Nottingham.

Realising he was not that interested in the practice of law, but in the policies and principles behind it and in human rights issues, he ‘rolled into human rights NGOs’.

He worked at Justice when the Human Rights Act was going through parliament. ‘It was a time of such a change in the legal culture. Labour had been elected and there was this real sense of optimism.

‘That was really great for a while, but then they invaded Iraq and it all went pear-shaped’.

After stints at Article 19 and the Open Society Foundation, he co-founded MLDI in 2008.

‘I’ve been lucky enough to work on issues that were more global, which has the advantage of working in a very diverse bag of countries, issues and legal systems, but also means that I don’t really know anything much in-depth about any country in particular. I know a little about a lot of countries. It’s a unique skill, but not very marketable,’ he quips with a dry, self-effacing manner.

Something of which he is keenly aware is the steady slide of the rule of law and rise in assaults on free speech, with increasing numbers of journalists and bloggers imprisoned or killed because of their writings. Last month Xulhax Mannan, gay rights activist and editor of Bangladesh’s only LGBT magazine, was hacked to death.

The decline in respect for the rule of law, he laments, has happened as much in Western Europe and North America as elsewhere, causing the West to lose the moral high-ground upon which it used to stand.

He attributes this decline to the delayed effects of 9/11 and the impact of the economic crisis. ‘To me, it’s also clear that invading Iraq and Afghanistan were really bad foreign policy decision, which put things in motion and had a domino effect, that encouraged Islamic extremism.

He continues: ‘Free speech doesn’t exist in isolation, it exists in tandem with everything else’.

And the economic crisis, he suggests, has made the media much more vulnerable. ‘Support ecosystems for journalists have fallen away, freelancers are being sent abroad without adequate protection, media in many countries don’t protect their own workers hardly at all. It’s a whole combination of factors and each feed into a spiral’.

‘I could probably talk for an hour about all the factors – the rise of Putin, the rise of China, the election of people like Modi in India….

He is particularly aggrieved by the fact that the argument being made by the British government about scrapping the Human Rights Act is the same debate that Putin is leading in Russia about withdrawing from the European Convention on Human Rights.

‘Are we setting an example for Putin? How did we get to this point?’

He is disappointed that German chancellor, Angela Merkel, has approved a criminal inquiry into German comic Jan Boehmermann, for ‘insulting’ Turkish president Tayyip Erdogan, by reciting a poem that made sexual references about him.

On the whole, says Noorlander, the German courts are ‘quite good’. He suggests that the case will not get very far and even if Boehmermann is convicted, Noorlander believes it would not be constitutional under German law and would certainly get struck out by the Strasbourg court.

‘But the fact that he is being investigated is bad enough and sends the wrong signals,’ he adds.

In this environment, he suggest, the worst thing that human and civil rights lawyers could, is give up. Paradoxically, he notes: ‘In the face of all this negativity, we are seeing really interesting victories at constitutional courts around the world.

‘The Indian Supreme Court last year struck down laws that prohibited the leaving of insulting comments online, the Zimbabwean constitutional court struck down defamation laws and other criminal laws on speech, and the European Court of Human Rights and other courts are doing a good job on the whole, standing up for free speech and human rights’.

Even in Russia, he says, in the face of Putin trying to introduce regressive measures, ‘some measure of justice on the constitutional values’ can be achieved through the courts.

Focusing on the UK, Noorlander ridicules the growing trend of no-platforming and silencing those whose views are deemed by others to be too offensive to be expressed.

‘The sad thing it that is happening at universities, where students should have more affinity with tolerance and liberal principles,’ says Noorlander.

‘People seem to think that there’s a right not to be offended. There isn’t. You’ve got a right not to listen, but you can’t be offended by someone and say that they are therefore not allowed to speak.’

The approach, he suggests, should be to allow someone to speak and then to challenge what they have to say and expose their bigotry or wrong-headedness.

He ponders: ‘People are offended more easily, perhaps because they are confronted with a lot more stupid stuff on the internet’.

And the internet poses problems for the law and the courts when treading the delicate balance between privacy and free speech.

This is illustrated most recently by the celebrity threesome injunction, that seems to got stuck somewhere at the Supreme Court.

Noorlander isn’t too bothered by the case, which he says should have been a ‘slam-dunk’ decision for the courts, once the parties involved had been named in other jurisdictions. ‘I don’t understand why the Supreme Court is sitting on it for so long’.

He goes on: ‘What the law doesn’t understand is that freedom of expression is global and the internet is global. It still tries to pretend there is a part of the internet that it can control’.

Conversely, he points to the issue of libel tourism to illustrate an area where the English courts apply the law globally, where they should not, allowing foreign litigants to pursue cases in this country.

MLDI, he says, is working on a ‘telling’ case that ‘shows what is wrong with the libel laws’. It helped renowned Russian journalist, Olga Romanova, who alleged that a Russian businessman and former senator, Vladimir Sloutsker, had taken out a contract on the life of her husband, Alexei Kozlov, after the two had fallen out.

Sloutsker, says Noorland, ‘as every self-respecting oligarch does, has a house in London.’

He sued Romanova at the High Court in London over the comments she had made on Russian websites in Russian.

Mr Justice Warby ruled that he could hear the claim because Sloutsker ‘had, and has, a substantial and widespread reputation in this jurisdiction’ and although the posts were made on Russian blogs in Russian, to a primarily Russian audience, a significant number of people in England were likely to have seen them.

Romanova, says Noorlander, was unrepresented through most of the proceedings, while Sloutsker was represented by 5RB’s Adrienne Page QC. Warby ordered Romanova to pay damages of £110,000, a judgment that Noorlander explains, can be enforced in Russia and will bankrupt her.

Last month Romanova’s last-ditch application for permission to appeal out of time – on the point of jurisdiction – was rejected by the Court of appeal.

More generally, says Noorlander, while the substance of the libel laws in England is ‘not too bad’, defending a claim is too expensive and lengthy, which has a ‘chilling effect’ on what is published.

‘If a journalist gets a letter of claim, their first reaction is “shit, that’s going to cost me money” and that is really bad’.

He points to a study from Oxford University that found it was up to 140 times more expensive to defend a libel action in England than in any other country in Europe, except Ireland.

‘Lawyers are expensive and the procedure is complicated. If you want to run a responsible journalism defence, the number of hoops that you have to jump through and the kind of evidence you have to bring to a court, means it will take time and money.’

Considering the behaviour of the press in the UK, Noorlander’s verdict is that they are ‘a mixed bag’. The whole regulatory shake-up, in the wake of the Leveson enquiry, he finds unnecessary.

‘What led to Leveson was criminal offences being committed by the media, that the police failed to do anything about.’

And how does he rate the new press regulator, IPSO (Independent Press Standards Organisation)? He laughs and choking on his soup, splutters ‘it’s so fucking parochial’.

He likes the idea and model behind rival regulator, Impress, which he says is truly impartial, though it has not gained buy-in from the media.

‘This is one of the reasons why you can no longer hold up the UK as an example of what media regulation should look like. We have two regulators – one that is clearly not independent, hasn’t applied for recognition, yet has all the members, and the other regulator, which is independent, has applied for recognition and has only a few small outlets as members’.

On regulation across the globe and the escalating battle between Google and the French authorities over the reach of the ‘right to be forgotten’ ruling, Noorlander says greater balance is needed on both sides and a willingness to enter into a reasonable debate.

‘You don’t get debate anymore; you just get outrage on both sides. Google’s lawyers in America take an extreme view and the French data protection lawyers take an extreme view. You are never to get to a workable, just solution.

‘The American’s need to realise that there are other approaches to free speech besides theirs and so do the French.’

But, he muses, how do you reconcile that without going into systems of censorship.

Coming back to the UK, he says, there are many laws that need improving: ‘The anti-terrorism law is still quite restrictive — Miranda’s case showed that ordinary journalism can be seen as terrorism (though that was nullified to a degree by the Court of appeal); freedom of information, which was only introduced 10-15 years ago, is being nibbled at; contempt of court is a minefield for journalist; and the law is only beginning to understand how online expression and tweeting can’t be judged by the same rules as are applied to professional journalism.

He concludes wistfully: ‘The law’s got some growing to do, but when you look at other countries outside of western Europe, the UK is not so bad’.

Legal Hackette Lunches with Baroness Deech

Me 2015Over Chinese noodles in the House of Lords’ café, the blogging, tweeting, former chairman of the Bar Standards Board discusses divorce reform, disability discrimination, the demise of freedom of speech at universities – and, of course, legal regulation. 

Baroness Ruth Deech, former law fellow and Principal of St Anne’s College, Oxford, has had extensive experience of regulatory bodies, serving as chairman of the Human Fertilisation and Embryology Authority (1994-2001), a BBC governor (2002-2006), and as the first Independent Adjudicator for Higher Education (2004-2008).

In 2009 she was appointed chairman of the Bar Standards Board – a role she was to hold for six years, presiding over some of the most radical shake-ups to the bar.

She explains how she got the job after coming to the end of her time as adjudicator for higher education: ‘I was looking for a sort of portfolio part-time existence. I saw the [BSB] ad in the newspaper and I thought that looks boring and badly paid.

‘Then the ‘phone started going and all my legal friends started ringing up saying “Ruth, there’s a job. Nobody else wants it; it’s boring and it’s badly paid – you’ve got to do it.” I fall for that sort of thing, so I did it’.

But she reflects: ‘It wasn’t boring – sometimes very fraught, but never boring.

‘I felt it was very important and worthwhile, even though some of the barristers you had to deal with were a bit unwilling to be regulated’.

The former chair explains her two main aims during her tenure – to preserve the distinct nature of the bar through maintaining a separate regulator, and to cut through ‘the dreadful business jargon, unnecessary bureaucracy and interference’ in regulation.

The greatest achievements, she says, were ‘keeping the bar separate – we kept it from being crushed by the really rather ignorant Legal Services Board; we produced a new handbook, which was a mammoth undertaking; and we got alternative business structures done. We also managed to preserve the cab rank rule’.

‘Before I left, I looked back at the original business plan and we had achieved everything that was in it from reform of CPD to reform of pupillage’.

Deech is passionate about the importance of an independent bar, but rejects as ‘complete nonsense’ the accusation levelled at the BSB from some quarters, most notably the LSB, that the regulator was at times too close to the representative Bar Council.

‘We weren’t close to the bar. We were in the same building to save money. But if anyone thinks we were close to the bar, why would we have introduced QASA [Quality Assurance Scheme for Advocates], which the criminal bar practically went on strike about?’

And working to introduce QASA, despite strong opposition from the rank and file, she insists, was ‘the right thing to do’.

Every profession, she asserts, requires some form of feedback, appraisal and accountability. She was ‘baffled’ by the hostility to the scheme, which she says only ‘asks people to undergo a feedback regime every few years.’

‘I don’t really know what they were so upset about because I’m sure there are very few poor advocates. By the nature of the job you wouldn’t get very far if you weren’t good at it.’

She adds, if the complaints made by some at the bar about the inferior standard of solicitor advocates are right, QASA ought to help the bar. ‘If the solicitor advocates are really that bad, it would be a way of highlighting it and making them pull up their socks’.

In any event, she insists it was the LSB leading the charge for QASA as part of its ‘mechanical regulation model’, which was not tailored to the bar; rather a reflection of how it thought regulation is done.

‘Protector of the bar’

During her time at the BSB, Deech saw herself as a ‘protector of the bar, not for its own interest, but as the ‘real upholder of the rule of law’.

‘There is only one profession that will take any case that comes, under the cab rank rule, even if it’s for terrorists or against the government. Unless you have a cadre of people that are prepared to do that your legal system is not going to be fearless and you’re not going to have the rule of law’.

The reforms introduced under her watch, which included the first move towards ABSs, she insists, did not undermine the independent bar or create a slippery slope towards fusion.

Barristers, she insists, in whatever form they practise, ‘have a very strong sense of their own identity and their own mission’.

Deech, who is married to a solicitor, contrasts the two professions. ‘The solicitor’s ethos, as far as I can make out, is more business-like and about making money.

‘Some firms have ideas about what sort of work they’ll do – they’ll only do work for trade unions or whatever. So it’s a more limited range and it’s probably more dominated by overall earnings and marketing and so on.’

Adding swiftly: ‘I’m not saying that barristers aren’t interested in earning – you bet they are. But I think solicitors as a whole have more of that drive, while the individual barrister has something else to think about as well’ – defending the rule of law.

Praising barristers’ pro bono efforts Deech would like to see City law firms up their game, though she stresses it must not be seen as a way of filling the gap left by legal aid. ‘It’s the government’s job to fill the gap, not the solicitors’ firms’. And the proposed levy on City law firms to fund the justice system is ‘wrong’ she says, comparing it to getting doctors to fund A&E.

Bring back the old-style Lord Chancellor

‘It was a big mistake to have changed the role of Lord Chancellor,’ asserts Deech. Although it was a ‘strange role’ she observes: ‘The Lord Chancellor was both a judge, a member of the government and a legislator – somehow once in position and once they’d put on the wig and silk stockings and assumed one of the highest positions in the land, they turned into champions of justice and guardians of the courts’.

There is now nobody who serves that role, she bemoans. ‘There’s no one to champion at the highest level the rule of law and how justice is to work. That leaves a terrible gap in our government now. I regret very much the turning over of the job to lay people and to it becoming an ordinary ministerial post.’

She continues: ‘Mr Gove seems to “get it” more than Mr Grayling did. But the Lord Chancellor, even someone as intelligent as Mr Gove, is a politician – here to day, gone tomorrow and looking for the next job.’

She calls for a return to the ‘old-style Lord Chancellor’. ‘Only they have the overview of the court system, what’s going on and how it ought to be represented at Cabinet and fought for’.

The future of legal regulation

On this subject Deech is adamant, leaning in to the recording machine to ensure her views are captured: ‘I’d like to see the end of the LSB’.

She describes the Legal Services Act 2007, which created it, as the ‘worst Act I’ve ever seen, both in drafting and in structure’.

‘I have worked as a regulator under lots of different Acts of Parliament and that one is appalling – with its eight objectives in no particular order and its nightmare hierarchy of regulation’.

Deech continues: ‘I hope that the LSB folds its tent and goes. You could then leave the various professions within the legal system to regulate as they do now, with separate regulation and trade union elements.

‘You could have a forum where they come together and discuss things, but there is no need, and there never has been, for the LSB, the cost of which is horrendous’.

As indicated above, Deech is ‘certainly’ against the idea of a single legal regulator, insisting that small regulators are ‘cheaper, better and more in tune with what’s necessary’.

Pointing to the City to support her case, she says: ‘Look what happened in the financial world with the crash – one great big financial regulator – powerless.

‘And afterwards it was said that the one, big financial regulator was too far away from all the different parts of the financial market.’

Citing another example of a failing behemoth regulator, she turns to health and the Care Quality Commission. ‘The newspapers are full of stories that it missed this and didn’t see the other’.

Disability law review

A crossbench peer since 2005, since her second term of office with the bar’s regulator ended, the noble baroness has turned her focus to law reform.

She chairs the House of Lords’ select committee on the Equality Act 2010 and disability, looking at the experience of disabled people seeking justice against discrimination.

‘We are looking at whether disabled people are better off, or not, under the Equality Act 2010 compared with the prior situation where they had their own Disability Discrimination Act.

‘Now disabled people are treated together with all the other protected minorities – transgender, black, female and so on. And it may be that disabled people are losing out’.

Currently taking evidence, the committee, says Deech, has heard some ‘very sad stories’. Though whether they are the fault of the law or caused by a poor attitude and lack of understanding among employers and service providers, she is not certain.

‘The appearance is that employers don’t always understand what reasonable adjustments they’re supposed to make and service providers, like small shops and restaurants, don’t disturb themselves to make the right adjustments even when a disabled person turns up.’

And the legal aid cuts, she says, have made the problem worse, removing from the most vulnerable the ability to seek redress. ‘We are hearing that disabled people can’t afford to take the legal action they are entitled to and so they aren’t able to do it.

‘It’s no good having a decent law about disability if people can’t enforce it.’

Deech suggests that employers ‘must be tempted to behave in a more cavalier fashion’ knowing that disabled employees will be unable to afford to go to a tribunal to fight any discrimination.

Divorce Bill

Keen to reduce the costs and introduce more certainty into the process of divorce settlements, last year Deech began the process of steering through the Lords the Divorce (Financial Provision) Bill – a private member’s bill that would reduce spousal maintenance, introduce a formula for capital division and make prenuptial and postnuptial agreements binding.

Due to the peculiarities of the process, Deech must enter a ballot for the bill to progress, and she insists the need is ‘more urgent than ever’.

‘I want to make the whole financial structure cheaper and fairer. Every day there are stories in the press about couples who have spent three quarters or more of their assets on fighting each other, and in some of the richer cases, the legal costs amount to millions. It’s a terrible waste of assets.’

In her endeavour, she is boosted to have the support of divorce lawyer to royals and stars – the ‘Steel Magnolia’, aka Baroness Fiona Shackleton.

This was not her first foray into marriage reform. In 2013, she introduced an amendment to the Marriage (Same Sex Couples) Bill that would have extended its provisions to cohabiting family members and carers.

She has championed a long-running campaign on behalf of elderly sisters who have been living together for many years. ‘They tell me that if they were gay, they could get married and save on tax and inheritance duties.

‘I think they have a very strong case and I don’t see why sexual relationships should be privileged above others that may be much longer and much more co-dependent’.

Legal education and diversity in the profession

While Deech believes the diversity of those entering the bar is ‘absolutely first rate’, retention she accepts, particularly of women, is a problem. Though, she thinks it is no worse than in other professions. And she is proud that the Bar Nursery was set up on her watch.

Accounting for the lack of women in the senior judiciary, she explains there is still only a small number of women who in the profession who are of the age to sit in the Supreme Court.

‘I was in a class of 150 men and eight women. If you were a woman, doing law in the 1960s was almost like hanging a placard round your neck that said “I’m unattractive; I’m a blue stocking”’.

When it comes to the under-representation in senior legal and judicial roles by ethnic minority barristers, she suggests: ‘Maybe the way to the top at the bar is not to go for the altruistic areas like legal aid, but for commercial law’.

The former Oxford University Principal, who studied law, naturally believes a university law degree is a ‘very good education in itself even if you don’t come into the profession’. But she decries the cost of the Bar Professional Training Course. It is she says, ‘far too expensive – it’s actually a rip-off and it’s outrageous to pay all that money without even knowing whether you’ll have a job at the end’.

With a heavy heart, she says she is ‘not optimistic’ about any student’s chances, regardless of background, of getting one of the declining numbers of pupillages, especially in criminal and family law.

‘Maybe it’s cruel to encourage thousands of young people to come to the bar when you know there aren’t going to be jobs for them,’ she says, suggesting it will only result in a whole cadre of individuals unable to get into the bar, who ‘feel bad about the bar for the rest of their lives’.

Freedom of speech in universities

Deech takes an interest in university life. She is concerned that freedom of speech in under attack on university campuses, which she says, should promote and secure free speech.

Last month she tabled a debate on the issue and asked the government to consolidate the laws in relation to freedom of expression at universities and define many of the terms used in the Prevent Policy, introduced by the Counter-Terrorism and Security Act 2015 and which requires universities to ensure that where there are speakers with extremist views on terrorism or who preach non-violent extremism they should be challenged with opposing views at the same event, rather than banned.

‘There is a pincer movement – with on the one hand, students who for various reasons have become censorious, frightened, intimidated and intimidating, and have banned speakers and shut down magazines they disapprove of – and on the other hand, laws and the government’s Prevent Policy imposed on universities to control free speech.

‘People take offence at anything and feel they have a right not to be offended,’ she says and continues that freedom of speech is being curtailed to such a degree that there is ‘hardly any freedom of speech in universities at all’.

She is appalled at the trigger warnings that lecturers at universities across the pond are obliged to give their students, warning them where the content of the course might upset them in some way.

On the basis that universities are a ‘microcosm of the wider world’, Deech is concerned about freedom of speech more widely.

Background

Deech is the daughter of historian and journalist Josef Fraenkel, who fled Vienna and Prague from the Nazis, and arrived in Britain in the day that the Allies declared war on Germany.

She gained a first class law degree from St Anne’s College, Oxford, where she went on to become Principal and has a building named after her.

After graduating, she says she was ‘not tempted by the idea of practicing law, but always liked the abstract idea of justice’.

She did toy with the idea of practice, but recalls thinking ‘you needed money and contacts to get ahead, which I didn’t have’. She was, she says ‘quite ready to be deterred and I fell into a teaching job instead, which was fine’.

Had she practised, Deech would have gone for the bar rather than the solicitor’s profession, as the latter ‘struck me as more mundane’.

Though she suggests, she would not have made a good lawyer for two reasons. ‘The first is that I’m always convinced I’m right; so I wouldn’t be very good at seeing at the other side. The second is that I’d lack patience for the detail or for long drawn-out processes in court.’

On further reflection, she reckons she would have been ‘quite a good barrister’, but insists she has ‘no regrets’.

Legal Hackette Lunches with Courtenay Griffiths QC

ST_9968The criminal silk who represented former Liberian president, Charles Taylor, and acted in several cases that exposed police and CPS incompetence, discusses why the International Criminal Court has no future, the CPS’s decided to press ahead with the third PC Blakelock murder trial and why law should be a post-graduate subject

Courtenay Griffiths QC, the former head of chambers at right-on set Garden Court and now member of 25 Bedford Row, has been involved in some of the most high profile cases of the last 35 years.

PC Keith Blakelock trial

Looking back over his illustrious and occasionally controversial career, one of the most satisfying cases, he says, came with the acquittal at the Old Bailey last year of Nicholas Jacobs for the murder of PC Keith Blakelock, 29 years before, during the Broadwater Farm riots in 1985, when Jacobs was only 16.

Griffiths had previously been part of the defence team involved in the first murder trial in 1987, when he was lead by Michael Mansfield QC, representing one of three juveniles whose acquittals were directed by the judge. At the same trial the three adult defendants, Winston Silcott, Engin Raghip and Michael Braithwaite, were convicted, only to have their convictions quashed by the Court of Appeal in 1991.

Jacobs had been arrested in 1985, charged and convicted of affray and given an eight-year sentence. While on remand he had written a rap poem about the officer’s murder, which the prosecution later claimed contained admissions that he had stabbed Blakelock, though at the time, the police took no action and did not charge him with murder.

Recounts Griffiths: ‘The Met police mounted a second investigation into Blakelock’s death and came up with two supposed eye witnesses who named him [Jacobs] as having stabbed Blakelock.’

The pair admitted being part of the mob that attacked Blakelock and were given immunity from prosecution and anonymity if they named those involved in stabbing him.

Says Griffiths: ‘It was quite clear from their accounts that they were lying and yet they were paid thousands of pounds each by the Met police for their assistance.’

He continues the sorry saga that uncovered abuses by the police and has put PC Blakelock’s family through decades of misery: ‘Ten years go by and there’s another investigation, which uncovers a third alleged witness. All three eye witnesses were junkies and had alcohol problems.’

The case, says Griffiths, was reviewed by Alison Saunders, who was then the senior CPS officer involved, and who is now the much under-fire Director of Public of Prosecutions.

‘Under pressure from Blakelock’s widow they decided to proceed to trial last year. All three witnesses were given total anonymity. They gave evidence from behind a screen with voice modulation, so that nobody could know who they were. To this day the world doesn’t know who these witnesses were.

‘We wiped the floor with them. We destroyed them completely. The jury would have acquitted within five minutes were it not for the fact that they wanted to ask a question, so they came back the following morning, after the question was answered’ returning the not guilty verdict in the eight-week trial later that day.

Castigates Griffiths: ‘Following 28-years and three police investigations, the trial which lased eight weeks and consumed millions of pounds of public funds, should never have been brought. It was a complete load of nonsense’.

Explaining the history, he says: ‘We got a case summary from the prosecution. Jonathan Laidlaw QC, who represented Rebekah Brookes, and who was Treasury Counsel at the Old Bailey. He had written an advice as to why he thought a prosecution should proceed after all these years.

‘In the original advice it says words to the effect of “I have discussed the matters with Alison Saunders of the CPS and she agrees with me that the prosecution should proceed.”’

At the time of Jacobs’ charge, Saunders was quoted in a CPS press release saying: ‘Following a thorough investigation by the Metropolitan Police Service, we have decided that Nicholas Jacobs should be charged with the murder of PC Keith Blakelock during the disorder at Broadwater Farm in October 1985.

‘This decision was taken in accordance with the Code for Crown Prosecutors. We have concluded that there is sufficient evidence and it is in the public interest to prosecute.

But, continues Griffiths: ‘When we get to court and the whole thing starts unravelling – and by now Saunders has been appointed DPP – we raise in court that the DPP sanctioned it. All of a sudden we are told, “no. Mr Laidlaw got that wrong – Alison Saunders had nothing to do with that decision; it was her deputy so and so”.

‘It’s disgusting; it really is disgusting. So when you see these things coming out about Alison Saunders now – some of the decision’s she’s made – and she’s come under serious criticism – there’s a catalogue of this going back a while because she lacks judgement.

‘Any senior lawyer looking at the Blakelock papers would have said “this is complete crap. It’s time to put this to bed and bring some closure for Mrs Blakelock’.

First Damilola Taylor trial

Griffiths was involved in another high profile trial in which the police and CPS did not cover themselves in glory – that of the murder of schoolboy Damilola Taylor 2000.

Says Griffiths: ‘The police were so anxious to avoid a repeat of the screw up of the Stephen Lawrence case, that they forgot about evidence gathering in the normal way and thought that by using a young female who they were in effect paying to give evidence and offering inducements to inmates at Feltham remand centre, they would secure convictions’.

At the time of the trial of six youths, Griffiths recalls how he was vilified by the media and by others including the now Archbishop of York, John Sentamu, for his cross-examination of the young female witness, who it subsequently transpired had been lying.

DNA, later showed categorically that completely different young people were responsible for Damilola’s death, says Griffiths, and were it not for his doing his job in cross-examining the girl, six youngsters would be serving life sentences for something they did not do.

The International Criminal Court

The barrister, who represented the former Liberian dictator, Charles Taylor, convicted by the Special Court for Sierra Leone, of war crimes committed during the civil war, puts forward a damning indictment on the International Criminal Court in The Hague.

The court, established by the Rome Treaty in 2002, he says, has ‘lost international credibility’, is ‘riven with politics’ and is ‘propping up a completely corrupt and unjust system’.

He predicts that the ICC, which has in its 13 years completed only two trials, has no future and will face a funding crisis once those few defendants currently waiting trial have been dealt with.

All, but one of those arrested, indicted and charged, he says, have been African. Griffiths explains that the initial enthusiasm of the African countries, which make up the majority of the Rome Treaty’s 123 signatories, was based on their experience with dictators and pressure exerted by the European Union to sign up in return for aid.

But, he says: ‘The African Union have woken up now and smelt the coffee, and there’s a growing sentiment in Africa to withdraw’.

Last month, the ANC announced South Africa’s intention to leave, amid criticism that it had allowed the Sudanese president, Omar al-Bashir, to leave the country, despite an order from the court that he be detained.

The indictment of Uhuru Kenyatta, in connection with post-election ethnic violence in 2007-08, and subsequent withdrawal of the charges, following his surprise victory in the 2013 election in Kenya, has fuelled opinion against the court there too.

Warns Griffiths: ‘Kenya is the biggest economy in East Africa and South Africa is the most technically advanced country on the continent. If they take the lead within the African Union and withdraw, the ICC have a really big problem. Without Africa where are they going to get another case from?’

And it is not just within Africa that he suggests the court has lost credibility. ‘Structural problems’ he claims, mean ‘it will never function’.

By way of example, he cites, the fact that while one of the routes that cases get to the ICC is through a mandate from the United Nations’ Security Council, the most important members of the Security Council are not signatories of the Rome Treaty and can operate with impunity as their decisions are not subject to the jurisdiction of the court.

‘The other problem with it is that it’s riven with politics,’ he laments, citing as an example the decision to drop the charges against Kenyatta, following his election 2013 win.

‘I predicted at the time of the election outcome that they’d never put Kenyatta on trial.’ To have done so, he says, would have ‘completely screwed up their diplomacy’.

Aside from the fact that Britain has invested billions of pounds there in farming and other industries, he says, the West need to keep Kenya onside in the fight against al-Shabaab, the Somali-based, al-Qaeda-linked group, following its attack on Nairobi’s Westgate shopping centre in 2013.

‘The ICC’s strings are being pulled from Brussels, London, Paris and Washington. That’s the big lesson I learned from the Charles Taylor experience – it has nothing to do with justice – nothing at all.

‘That’s why the ICC has completely lost credibility now and why it’s not going to get anywhere.’

He points also to the fact that there will never be any prosecutions in relation to the civil war in Sri Lanka, despite the heinous crimes committed by both sides.

‘The bottom line is this – China’s just completed building a new harbour in Sri Lanka. Think about the geo-politics of it – it’s right off the coast of India – protecting their trade routes to Africa.

‘And this is against a background of China building military bases on reclaimed islands in the South China Sea and the US and western concerns about the expansion of Chinese naval power and reach’.

He continues: ‘The last things they want to do is aggravate the president and force him into the hands of the Chinese. So everybody is studiously keeping their hands off the whole conflict. There’ll never be a war crimes tribunal there’.

Political considerations, he asserts, mean the court will never do anything about Israel in Gaza, or Tony Blair’s involvement in the Iraq war.

His experience in The Hague during Taylor’s trial, when he saw some ‘truly shocking’ practices, he says was a ‘real eye-opener’.

His verdict on the court: ‘It’s totally hypocritical. I can’t see the ICC having any future.’

Background

Born in Kingston, Jamaica, in 1955, the son of a carpenter and second youngest in a family of nine, Griffiths arrived in England aged five in 1960, with the rest of his family to join his father just before the Tory government introduced legislation limiting immigration from the black Commonwealth.

He recalls the journey on an Italian liner, which sailed around the Caribbean picking up immigrants, sailed across the Atlantic, through the Strait of Gibraltar to Genoa in northern Italy, where they were loaded onto a sealed train for the three-day journey to Calais. After taking the ferry to Dover and the boat train to Charing Cross, Griffiths met his father for the first time since he was 10 weeks old.

Griffiths’ father was working to re-build Coventry following the destruction of the Blitz, so he grew up in the post-war West Midlands in an atmosphere of overt and accepted racism.

In 1964 Peter Griffiths (needless to say no-relation) won the West Midlands seat of Smethwick, on the slogan ‘If you want a nigger for a neighbour, vote Labour” and four years later Wolverhampton South West MP Enoch Powell made his infamous ‘rivers of blood’ speech about the sweeping tide of immigration.

Griffiths passed the Eleven Plus and went to the elite Bablake School, in Coventry. ‘I was the only black child in that school and there was one Asian boy – Ranesh Sharma’.

He recalls name-calling and being spat at by pupils in his first year, until his older brothers paid a visit to the school. And some staff, he says, on occasion referred to him as ‘wog’ or ‘blackie’.

The racism also manifested itself in a more insidious manner. While the other boys were encouraged to become lawyers and doctors, it was suggested that Griffiths become a policeman.

Though, he adds, he enjoyed his time at Bablake and admits to crying when he left.

And the experience, he reflects, gave him the confidence needed to do his job as a barrister. ‘You came to realise that these kids might have a different colour skin to you, but it made them no better than you at all.

‘I knew that I was as good as, if not better than the vast majority of my peers, and I had that confidence that came from competing against them and winning’.

It was against that foreground of racism at home and the background of the civil rights movement in the USA that forged Griffith’s desire at around the age of 11 to become a barrister.

Added to that was what he learned from his father’s voracious interest in politics and his admiration for Norman Manley, a prominent QC and the first prime minister of Jamaica. And television courtroom dramas gave him a fancy for being an advocate.

His interest was always going to be in criminal law, because of his sense of injustice having experienced police racism growing up. ‘We were the biggest black family in Coventry, with a police force who were openly racist.

‘Anytime anything happened in Coventry involving a black person they’d kick our door off and come in and haul my elder siblings out of bed, having pushed my father out of the way when he asked for their search warrant.

‘You didn’t need a search warrant to search a nigger’s home in 1960s Coventry.’

Legal education

With a love of history, but a desire to become a barrister, Griffiths rejected a place to read history at Worcester College, Oxford, in favour of studying law at the London School of Economics.

That decision, he states, was ‘the biggest mistake I ever made’.

‘I knew I wanted to be a barrister, but being the first person in my family to go to university I didn’t know that you didn’t have to do a law degree to qualify.’

Gaining a 2:1 he says that frankly he ‘hated the study of law’ and was disappointed that the LSE’s reputation as a hot bed of radicalism did not translate into the way it taught law.

He recalls spending most of his time playing pool and running the Africa Society, which invited Robert Mugabe over to address it.

The study of law, he suggests, at university ‘is a waste of time’ and should be a post-graduate subject, as it is in the States.

To practise law, he suggests, it is not the facts you learn at university that you need, but the ability to research the law.

So, he says: ‘Why bore yourself for three years when you can bore yourself for one year and be in the same position,’ by studying a degree you enjoy and then taking the graduate diploma in law.

In the practice of criminal law, where judgement on witness handling is crucial, he suggests students would be better off studying psychology, psychiatry, sociology or politics. Law, he says, is ‘the least useful tool’ in making the necessary tactical decisions.

Adds Griffiths: ‘I think we really need to rethink the way we go about training lawyers in this country’.

Racism at the bar

Called to the bar in 1980, Griffiths says he has experienced ‘subtle instances’ of racism rather than ‘overt’ racism.

Appearing at Camberwell Green Magistrates’ Court in the days before the Crown Prosecution Service, he recalls being redirected from the advocate’s bench to the public gallery by the police inspector in charge of the court.

He hints at questionable decisions over case allocation in his early days of practice and a ‘tone of voice’ with ‘racial implications’ from some judges.

But for the most part, Griffith does not label people’s reaction to him as racist. Rather, he suggests, it is ‘an inability to understand difference’ and ‘people having certain expectations’.

He recalls how the all-white juries at Leeds Crown Court used to gawp open-mouthed at the site of a black man in a white wig. It ‘didn’t square with their mind-set. I just didn’t fit their model of what a barrister should be’.

Consummate jury advocate, Griffiths had an icebreaker that he employed to smash through their incredulity and get them onside. ‘I’d stand up and say “ladies and gentlemen, I appreciate that it might seem strange, me standing here with this white wig and this black face, looking for the world like a pint of Guinness, with a good head though you might think”’.

Even today, he notes, there are courts where the colour of his skin ‘stops the traffic when you walk out the robing room’.

But Griffiths does not believe the courtroom is the place to tackle racial prejudice directed at him. ‘I’m not there to fight the racism I’m suffering; I’m there to present my client’s case and I’ve got to do that to the best of my ability, despite what (others) are trying to do’.

Some of his black colleagues, he fears, get distracted and fight the wrong battle, occupying too much of their ‘headspace’ worrying about what people are thinking about them.

Rather he says: ‘By fighting the battle and prioritising the battle for my client, I’m resolving that [racism] battle as well. But I’m not there to be distracted by that.

‘I’m here to do a job effectively and there’s nothing you are going to do which will deflect me from that. So that’s the attitude that I adopted in the job from the word go’.

Chairing the Bar Council’s Race Relation’s committee for several years and becoming a trustee of mentoring charity, Urban Synergy, which seeks to support inner-city young people to reach their potential, are some of the positive ways he has sought to tackle racism in the professions.

Having completed pupillage, Griffiths went to work at the Labour GLC as legal assistant to the police committee support unit, just after the Brixton riots, before a teaching stint in New York and then returning to the bar, where he developed a practice initially mainly in West Yorkshire, where he recalls, he became ‘virtually standing counsel to the drug dealers in two pubs’ following repeated police raids.

Representing one client arrested following a police surveillance operation, Griffiths recalls how he found a reference to himself. The surveillance log, he recollects, recorded ‘well-dressed black man walks into the pub – obviously a big-time dealer’.

Aware of most of the locals, Griffiths wondered to whom it referred, before realising it was he. Griffiths had gone to the pub to celebrate the acquittal of a Rastafarian gentleman, who had been beaten up the police and charged with assaulting a police officer.

Diversity at the bar

With high numbers of black students studying law and aspiring to become barristers, Griffiths is not concerned that the bar is perceived by them as a closed shop. But he is concerned that they are not being given the information to help them succeed. ‘The problem now is not understanding how to play the game’.

The bar, he says, is ‘becoming, once again, an extremely elitist profession, with 60% drawn from 10 elite university law schools, which means that ‘getting a law degree from a former polytechnic may be a complete waste of time if you want to enter the profession’.

‘Inner city kids, black and white, should be told about that reality when they’re doing their A-levels, so they can make smarter choices.

Instead of applying to study law, for which higher A-level grades are required, his advice is to study another subject for which lower grades are required, even at top universities.

‘You come out with the cache of an Oxbridge degree. So that if you then do the one-year GDL it’s difficult to distinguish between you and those who have done law at those institutions’.

Griffiths deplores as ‘criminal’ the fact that BPTC providers are allowed to charge so much to so many students, knowing that they are never going to be practice.

It means, he says, it is no longer their colour that is keeping many black people out of the profession, but the huge number of graduates, which makes the job of recruiting, by chambers or law firms, more arduous, as they have greater choice.

And, observes Griffiths, when they have that choice, they select in their own image from an exclusive group.

One commercial set, he notes, reputedly recruits almost exclusively from one college. The head of chambers pops up and offers the star of the year £80k to come and do pupillage.

His solution is a ‘more rigorous selection process for the BPTC with other safeguards in place to ensure that selection is class-blind’.

‘The selection process to get on the BPTC should be quite different. It should have nothing to do with your law degree, but it should depend on rigorous testing of the aptitude and skills you need to be a barrister – verbal presentation, the ability to research and the ability to produce an argument under time pressures’.

While the percentage of non-whites in the profession is higher than their percentage in the general population, Griffiths is concerned that the ‘vast majority are concentrated in publicly funded work’.

‘When we come to the more lucrative commercial, chancery, patent areas, the bar has basically remained unchanged,’ – white, public school and Oxbridge.

He moves on to discuss another problem – the ‘feminisation of the bar’, particularly in publicly-funded work. Most of those from non-white backgrounds who are succeeding at the bar from non-white backgrounds are female,’ he asserts.

This, he explains, is because ‘racism has historically impacted on black male and black females differently’.

‘The fear of black masculinity impacts in a completely different way to the white attitude to non-white femininity.’

And, he fears, the issues of colour and race, have been sidelined in favour of gender and socio-economic issues because people are less comfortable talking about race.

The call for judicial diversity, he suggests, has focused on gender diversity, with the same emphasis not being placed on promoting non-white judges.

But, he adds, it is not just a homogenous bench that puts off judicial applicants, particularly to the more senior posts.

‘Being a High Court judge nowadays isn’t what it used to be. You get the knighthood, but you are worked like a dog,’ and the pay does not match the workload.

‘Now they are closing down a lot of the judicial lodgings, you’d be lucky to get put up in a Holiday Inn while you’re stuck out on circuit. The status of the job has gone down quite considerably,’ he states, and many able people, from all backgrounds are put off because of the impact on their personal and social life.

‘I wouldn’t do it,’ he adds.

Criminal legal aid

Naturally the issue of criminal legal aid is close to his heart. With all the change and budget cuts, he fears that ‘we’re heading towards a public defender system similar to that in the United States’.

It will, he suggests, not be a public body in the way that the CPS is organised, but will be more of a privatised system.

‘You have large legal firms with their own group of barristers who are willing to handle high turnover, lowly paid criminal cases on a production line basis.’

Career progression, he predicts, for criminal lawyers will begin as an employed barrister within one of those large firms, and then, once you’ve built up a reputation, moving to what will be smaller sets of specialised and efficiently run criminal chambers.

‘I don’t see the end of the independent criminal bar, but it’s going to change. It’s going to shrink in size and it will be dependent for the most part on privately funded crime.’

Those chambers, he says, will do the ‘odd publicly funded case, if it’s of a sufficient profile to interest them’, but the majority of criminal cases will be’ done on a production line basis by these bigger firms’.

The status of being an employed barrister in a large firm, he observes, ‘creates a different mind-set’.

‘It becomes, as the CPS knows to its cost, a nine to five job. When as an independent barrister, your day isn’t, and never will be, nine to five’.

Senior partners, he suggests will be interested only in turnover – ‘minimum preparation and minimum presentation in court and then move onto the next case.’

‘The clear danger is that it will impact on the quality of justice and on the ability of young barristers to develop the court room skills in the way that I was able to’.

Legal Hackette Lunches with Joshua Rozenberg

joshua_bio_photo‘Britain’s best-known commentator on the law’ and the voice of the BBC’s Law in Action, considers the changing face of the legal profession and the rise of the legal blogger.

I meet Joshua Rozenberg at The Bridge Bar in Gray’s Inn – just across the square from the top floor flat where he and his columnist wife, Melanie Phillips, live.

Though not a member of the bar, the solicitor turned legal hack, is entitled to live in the Inn that made him an honorary bencher.

His former BBC and Guardian chum, Marcel Berlins, whom he admires as a ‘pioneer of legal journalism’ is a bencher of one of the other Inns too.

After taking a law degree at Wadham College, Oxford, Rozenberg trained as a solicitor at Dixon Ward on leafy Richmond Green. He recalls it being ‘very nice – pleasant, charming, a very traditional firm’.

After completing his articles, but before finishing the Law Society’s exams, he found himself applying and being accepted on a journalists’ training scheme at the BBC – after a friend who worked in the Beeb’s appointments department initially suggested that Melanie apply.

‘We were young and care free in those days and I thought it would be rather fun. It sounded very glamorous and said candidates will be required to take a voice test,’ he recalls.

‘To my surprise I was interviewed and to my amazement I was offered a place on the scheme, which I hadn’t intended at all’.

That was the winter of 1974 and he had to make a decision that altered the course of his life.

‘There were two options – either you stay in the law and your future is fairly predictable. Or you give up the law and join the BBC and you’ve no idea what’s going to happen to you.

‘I rationalised that if I didn’t take the job I’d been offered, I would always wonder what would have happened if I had. By taking it I would find out’.

So he took it and in 1975 joined the BBC. ‘I did 10 years in various sorts of journalism and then in 1984/5 they wanted someone to specialise in law and present Law in Action. I was in the right place at the right time and I stayed there until 2000.

He chose for law in the first place, he quips, because ‘I hadn’t done badly at it at school — because we didn’t do law at school’.

More practically, he saw it as a vocational subject that had the possibility of leading to a professional qualification.

Despite living at the heart of the bar and commentating on the law – for among others the BBC, Telegraph, Guardian and Sky — for 40 years, Rozenberg says he sees himself as ‘very much outside’ the legal profession.

He has never joined the Law Society and states he would not want to, though his name does appear on the Roll.

‘I hope that hasn’t given me membership of the Law Society because I wouldn’t choose to join the Law Society’.

It is, he explains, not because of any particular animus towards Chancery Lane. ‘I try not to join any organisations, particularly ones I’m writing about.

‘So I don’t sign petitions, I don’t join organisations like Justice or Liberty, and I try as far as possible to remain above the fray’.

Though, he adds, there are exceptions as he is a trustee of the Kalisher Trust, which supports aspiring barristers, and about which he has written.

As an outsider looking into the profession, Rozenberg observes a mismatch between the reality of the legal world and public’s perception of lawyers – which he notes has proved ‘tricky’ to align.

He recalls a family barrister, who acts for parents whose children often end up being taken into care, telling him how his clients assume that he, the barrister, is in league with the courts and the judges, rather than being on their side.

‘You can see how it looks like that from their (the client’s) point of view,’ says Rozenberg.

‘If you’re a working class person — if you think such a distinction still exists — you might think that lawyers are middle class. And if you are a very disadvantaged person, then it’s going to be quite difficult for you to believe that lawyers are actually interested in their clients’.

Busting the myth that all lawyers are fat cats is particularly tricky. ‘The public still to some extent has the myth that lawyers are very wealthy. To some extent, compared with the public, they are and some are very wealthy.

‘And it’s difficult for legal aid lawyers to persuade people that they’re really not paid very much at all’.

During the protests over legal aid cuts, Rozenberg observes there wasn’t an obvious trick that lawyers missed to win the public’s hearts and minds. Rather he suggests, the public just didn’t understand the risks to the system.

‘And however strong your case is, it’s very difficult to shift public attitudes and the perception that lawyers are wealthy and just in it for themselves, particularly when you have a government which is determined to exploit popular misconceptions’.

Plus, the splits that emerged between the various representative groups, the rank and file members and the difference in emphasis between barristers and solicitors, he suggests, contributed to the difficulty of getting the message across.

Despite the public’s view of lawyers, Rozenberg agrees there is a fascination for the law, which he puts down to the drama inherent in some of the problems that lawyers deal with.

But he notes how that interest has diminished compared with the nineteenth and early twentieth century.

‘If you ask a member of the public to name a lawyer in this country, I wonder who they would name,’ he questions. To the suggestion that they might plump for Amal Clooney or Cherie Blair, Rozenberg notes that neither has appeared in court very much in this country.

He suggests folk might name Michael Mansfield QC or the late George Carman QC, before comparing it with the situation he has read about from times past when people used to queue up to hear advocates in criminal trials in the Old Bailey.

‘Barristers would have the histrionics and tell the jury ‘look at this wretched woman — God never gave her a chance, will you?’

The press, he says, would take down every word and write long reports that would be read avidly.

‘All that’s gone,’ he says, adding that advocates are ‘less colourful, but probably more shrewd and skilful now, and less given to histrionics’.

Newspapers, he says don’t want long court reports that the public don’t want to read and so the number of court reporters has declined. Rather, papers want human interest stories, favouring high profile criminal trials rather than the finer points of law.

He rates the standard of legal journalism as ‘very good’ but is concerned by the falling number of legal specialists. He is however ‘very encouraged’ by the recent launch of the free daily legal bulletin, The Brief, launched recently by The Times – ‘anything that encourages and supports legal journalism is great’.

Since he started covering the law in 1984, much has changed – with the passing of the Courts and Legal Services Act 1990, which broadened solicitors’ rights of audience and the Legal Services Act 2007, which introduced new business structures and allowed non-lawyers to own law firms.

‘The profession as a whole is now much more aware of the need to justify its existence to the public,’ with all main branches employing ‘significant public relations departments’ to help get their messages across.

He recalls the attitude of many at the bar when reforms were mooted in the late 1980s. ‘Their response was “but there’s been a review of the bar recently by someone very distinguished – Benson was his name – he says there’s nothing to worry about”’.

The comment referred to the Royal Commission on Legal Services, set up by Harold Wilson’s Labour government and chaired by Sir Henry Benson.

The professions, he says, now realise that they have to change and be more competitive. Regulation, he states, is an issue that the profession still needs to grapple with.

The problem and the move away from self-regulation, he recalls, started because the Law Society did not deal with complaints properly.

The Society, he says, was acting with a vested interest. ‘It was acting in the interest of its members rather than in the interests of the public, which I suppose is what the members wanted and expected’.

But, he suggests, if they’d taken the long view and realised that it needed a really rigorous way of dealing with complaints, self-regulation may not have been lost in the way that it has been.

Just as the legal profession has changed, the job of a journalist has changed too, he observes. Journalists now have to compete ‘with lawyers who do what can only be described as legal journalism – the bloggers’.

He joined twitter having seen lawyers like Adam Wagner and David Allen Green ‘doing legal journalism’.

‘They were very good and still are’ and he thought if you can’t beat them, join them.

Says Rozenberg: ‘It initially seemed a bit odd that I was offering stories to the world on twitter, but I began to realise this was the game we’re now in’.

There is, he notes, also now a huge amount of information available online, that was simply not there when he started out.

‘When I first started covering the European Court of Human Rights the press pack would have to go to Strasbourg to pick up the judgments,’ he recalls.

‘In those days newspapers could afford to send journalists abroad to cover important stories, paying their travel, accommodation and their meals on duty.’

Then Strasbourg heard about the invention of the fax machine and so the trips to Strasbourg are no longer necessary.

His appointment as the first specialist legal correspondent at the BBC in 1984, he recalls, coincided with the appointment of the very first press officer for the Lord Chancellor’s Department (now the Ministry of Justice).

‘He would send you press releases by post and, if there was something urgent, he would call you or send a fax. But you needed to know him to be on his mailing list’.

Nowadays, the MoJ has more than 30 press officers and he says, in principle, all its press releases are online for anybody to see – you don’t have to be a journalist.

And that, he adds, means they are designed more for the general reader and not so much help. Despite the availability of online information, he insists, there are still things can only be done in person – such as press conferences.

‘Not that the Ministry of Justice has had any press conferences for several years,’ he notes, speculating that Lord Chancellor, Michael Gove, might call one when he launches his British Bill of Rights.

The law has naturally formed a large part of his journalistic career. The first story he covered at the BBC, he recalls, was the 1984/5 miners strike, which involved a lot of law.

‘It was the last occasion on which the survival of the government depended on law. Thatcher was in dispute with the miners and she and the coal board were using legal weapons to crush Scargill’s NUM.

‘All sorts of incredibly obscure legal devices popped up and needed explaining,’ from the role of sequestrators to the function of the Official Solicitor.

One of the stories that he enjoyed most, was his last big gog, shortly before leaving the BBC — the case of the former Chilean dictator Augusto Pinochet.

‘That had some extraordinary developments of which the classic was the House of Lords, as the final court of appeal, having to revisit one of its own decisions,’ after one law lord was found to have had an interest in the case, due to his links with Amnesty International, which had intervened in the matter.

Recalls Rozenberg: ‘It was deeply embarrassing for the highest court in the land in an international case, and led to the end of the system whereby the most senior [by age] law lord became the senior law lord’.

Both law and journalism, he notes, can be performed by non-experts and increasingly elements can be done by computers but, he asserts, skilled people will always be required to do both.

Of the two jobs, it is naturally journalism that he favours and he has no regrets about not continuing his legal career.

‘Journalism is good fun and one of the advantages of journalism over law is that you never have any clients.’

As a lawyer, he explains, if you get something wrong, the client suffers. ‘With journalism if you get it wrong, it’s damaging to you, you may be sued, you may be embarrassed, but it’s not going to change the world.’