On the beat
6 April 2011
Sophie Khan talks shop April 6 - Speak now, or forever hold your truth
The tough new security measures that have been proposed by the Home Secretary to “help [the police] to do their work” on the day of the Royal Wedding will signal the beginning of a policy that will be used to interference with the right to protest beyond the 29 April. Once these proposals will come into force it will be difficult to stop the police abusing the powers that they have been given as we have previously witnessed with the disproportionate use of section 44 stop and search power against protestors. The new proposals will go as far as using ‘football-style’ banning orders for ‘known hooligans’ and the power to forcibly remove head and face wear at a protest. But what the new proposals do not set out is who will be classified as a ‘known hooligan’ and what rights they will have to challenge their classification? Without knowing the answers to these questions it is likely that many protestors could be subjected to an unacceptable interference will their right to protest. The police, in my opinion, are using this opportunity to redefine the landscape in which to protest and restrict this fundamental liberty which will see even more protesters classed as criminals. The new Metropolitan Police team, Operation Brontide, set up following the anti-cut demonstrations is a definite move by the police to crackdown on the right to protest, especially as it is hot on the heels of Operation Malone, which led to an unprecedented level of arrests of students across the country. But with many of these arrests now concluding in no further action have the men behind Malone taken advantage of the situation? I feel that they have and the distress that they have caused in criminalising the younger generation while they themselves ‘live the good life’ now needs to be scrutinised so that the same mistakes are not made again. The damage and distrust that has been then created by their actions should not be underestimated and the news that 138 UK Uncut protestors have been charged with aggravated trespass over their sit-in at Fortnum & Mason on 26 March galvanises feelings among protestors that the law is being used and abused to fit ulterior motives. If this is the case the police run the risk of discrediting their own investigations and opening up a chapter in policing that I felt was dead and buried. The right to protest will live on whether the police like it or not as many, like myself will not let this cornerstone of our liberty be extinguished without a fight.
http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1
Wednesday, 6 April 2011
Tuesday, 22 March 2011
Young Lawyer (Spring Issue)- Fight for your Right
Fight for your right
20 March 2011
When he was spotted pinching a policeman's hat during the siege of Millbank Tower, 22-year-old law student Bryan Simpson became instant tabloid fodder for the 'irresponsible' end of the student protests. So how come the likes of Michael Mansfield QC, Tony Benn and Noam Chomsky are among the 1,000-strong signatories to a campaign set up in his honour? We speak to the Strathclyde student and one of the Defend the Right to Protest team about keeping the police in check
“I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back”
Although my involvement remained peaceful throughout the occupation of Millbank Tower, I found myself painted as the ‘Scottish leader of the violent mob’ by the media.
When I returned to Glasgow I was hounded by tabloid journalists, who also harassed my parents and my grandad.
I was arrested two weeks later at my home in Glasgow at 6am by five metropolitan police officers on suspicion of violent disorder.
I was put in handcuffs and left to watch as they raided my flat for evidence, before being taken on a three hour car journey over the border to Cumbria. Once there I was subjected to more than eight hours of questioning. The only evidence they seemed to have about my "violent disorder" were newspaper clippings and BBC news footage which showed me shouting to the crowd "tory scum, here we come" – the chant of the day!
I was eventually released at around 7pm and was told to my personal belongings and my phone had been seized for evidence gathering purposes.
I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back.
My experience is in no way an exception. Dawn raids, usually used in drug and terrorism cases, are increasingly used by the Metropolitan Police in its policing of protests. I believe the primary objective of such a tactic is intimidation.
The difficulty with much of the law deployed in the context of public protests is that it is vague, which makes it relatively easy for the police to arrest people and relatively difficult for demonstrators to know when they have crossed the line.
It is highly possible that only a minority of the students arrested in connection with the recent student demonstrations will be charged, let alone convicted. More to the point, it is likely that those students who have had access to quality legal advice and who defend their actions will fair better in the end.
Bryan Simpson is a law student at Strathclyde University
The recent wave of student demonstrations has led to the arrest of at least 225 students following the launch of Operation Malone by Scotland Yard
Not all have been charged, but those who have face accusations ranging from breach of the peace to violent disorder. Some of these offences carry lengthy sentences – in the case of criminal damage it can be up to ten years imprisonment.
It is important for lawyers to see these charges in the wider context of the right to protest. As a means of expression, protests cannot be detached from the rights of freedom of expression. The European Court of Human Rights has taken this approach and recognises the value that public protest plays in any functioning democracy. As recent events in the Middle East have shown, sometimes the streets can be the most legitimate form of expression.
The risk is that in a climate where there has been an increasing overlap with the criminal law, antisocial behaviour law and antiterrorist legislation, the right to protest is trumped or marginalised by competing interests such as the protection of property rights, maintenance of public order or prevention of personal injury.
The law of protest is governed by negative rights. Every stage of holding a public protest has prescriptions. Notice must usually be given to qualify the demo as ‘lawful’. Certain words and gestures that can incur criminal liability must be avoided.
The threat of lengthy sentences loom over the crowd, with deterrence being the explicit rational.
This is not an environment conducive to greater public discussion. The protestor who is made to “face the full force of the law”, as David Cameron proclaimed after the occupation of Millbank Tower, is in a rather precarious legal position.
As those privileged few with direct access to the courts, lawyers are crucial to a culture where public protest is treated as a form of political expression worth protecting rather than something worth penalising or repressing.
The team is calling for all protesters who were arrested during the student demos to get in touch.
Fiona McPhail is a trainee solicitor based in Glasgow and a co-founder of the Defend the Right to Protest campaign. For more information visit www.defendbryansimpson.org
“There does not seem to be any debate about whether the police are in fact taking liberties. In my opinion, they are”
Operation Malone has resulted in vast and unnecessary arrests of students, many of whom have never been in contact with the police before and are being criminalised simply for exercising their right to protest.
There does not seem to be any debate in the public domain about whether the police are in fact taking liberties in the excessive use of their powers against the students. In my opinion, they are. Steps need to be taken now against this growing obsession of the men behind Malone to brandish a whole generation as ‘fair game’ trouble makers.
There must be an adequate response from both criminal and civil liberties lawyers against this unprecedented action by the police to stamp out all public descent. We as lawyers have to ensure rights are protected not just on the streets but also in court. When we fight in their corner we must remember that we are fighting for their freedoms and their future.
Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors. Check out her blogs for us at http://www.solicitorsjournal.com/
20 March 2011
When he was spotted pinching a policeman's hat during the siege of Millbank Tower, 22-year-old law student Bryan Simpson became instant tabloid fodder for the 'irresponsible' end of the student protests. So how come the likes of Michael Mansfield QC, Tony Benn and Noam Chomsky are among the 1,000-strong signatories to a campaign set up in his honour? We speak to the Strathclyde student and one of the Defend the Right to Protest team about keeping the police in check
“I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back”
Although my involvement remained peaceful throughout the occupation of Millbank Tower, I found myself painted as the ‘Scottish leader of the violent mob’ by the media.
When I returned to Glasgow I was hounded by tabloid journalists, who also harassed my parents and my grandad.
I was arrested two weeks later at my home in Glasgow at 6am by five metropolitan police officers on suspicion of violent disorder.
I was put in handcuffs and left to watch as they raided my flat for evidence, before being taken on a three hour car journey over the border to Cumbria. Once there I was subjected to more than eight hours of questioning. The only evidence they seemed to have about my "violent disorder" were newspaper clippings and BBC news footage which showed me shouting to the crowd "tory scum, here we come" – the chant of the day!
I was eventually released at around 7pm and was told to my personal belongings and my phone had been seized for evidence gathering purposes.
I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back.
My experience is in no way an exception. Dawn raids, usually used in drug and terrorism cases, are increasingly used by the Metropolitan Police in its policing of protests. I believe the primary objective of such a tactic is intimidation.
The difficulty with much of the law deployed in the context of public protests is that it is vague, which makes it relatively easy for the police to arrest people and relatively difficult for demonstrators to know when they have crossed the line.
It is highly possible that only a minority of the students arrested in connection with the recent student demonstrations will be charged, let alone convicted. More to the point, it is likely that those students who have had access to quality legal advice and who defend their actions will fair better in the end.
Bryan Simpson is a law student at Strathclyde University
The recent wave of student demonstrations has led to the arrest of at least 225 students following the launch of Operation Malone by Scotland Yard
Not all have been charged, but those who have face accusations ranging from breach of the peace to violent disorder. Some of these offences carry lengthy sentences – in the case of criminal damage it can be up to ten years imprisonment.
It is important for lawyers to see these charges in the wider context of the right to protest. As a means of expression, protests cannot be detached from the rights of freedom of expression. The European Court of Human Rights has taken this approach and recognises the value that public protest plays in any functioning democracy. As recent events in the Middle East have shown, sometimes the streets can be the most legitimate form of expression.
The risk is that in a climate where there has been an increasing overlap with the criminal law, antisocial behaviour law and antiterrorist legislation, the right to protest is trumped or marginalised by competing interests such as the protection of property rights, maintenance of public order or prevention of personal injury.
The law of protest is governed by negative rights. Every stage of holding a public protest has prescriptions. Notice must usually be given to qualify the demo as ‘lawful’. Certain words and gestures that can incur criminal liability must be avoided.
The threat of lengthy sentences loom over the crowd, with deterrence being the explicit rational.
This is not an environment conducive to greater public discussion. The protestor who is made to “face the full force of the law”, as David Cameron proclaimed after the occupation of Millbank Tower, is in a rather precarious legal position.
As those privileged few with direct access to the courts, lawyers are crucial to a culture where public protest is treated as a form of political expression worth protecting rather than something worth penalising or repressing.
The team is calling for all protesters who were arrested during the student demos to get in touch.
Fiona McPhail is a trainee solicitor based in Glasgow and a co-founder of the Defend the Right to Protest campaign. For more information visit www.defendbryansimpson.org
“There does not seem to be any debate about whether the police are in fact taking liberties. In my opinion, they are”
Operation Malone has resulted in vast and unnecessary arrests of students, many of whom have never been in contact with the police before and are being criminalised simply for exercising their right to protest.
There does not seem to be any debate in the public domain about whether the police are in fact taking liberties in the excessive use of their powers against the students. In my opinion, they are. Steps need to be taken now against this growing obsession of the men behind Malone to brandish a whole generation as ‘fair game’ trouble makers.
There must be an adequate response from both criminal and civil liberties lawyers against this unprecedented action by the police to stamp out all public descent. We as lawyers have to ensure rights are protected not just on the streets but also in court. When we fight in their corner we must remember that we are fighting for their freedoms and their future.
Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors. Check out her blogs for us at http://www.solicitorsjournal.com/
Saturday, 12 February 2011
Solicitors Journal Blog- On the beat
http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1
BLOG
On the beat
7 February 2011
23 January 2011 - But officer!
The police are getting a bit of a rough time in the press at the moment. Not that I really care as it’s most likely that they deserve it, especially if the stories are true.
Unless you’ve been on the moon this month, you will have heard about the collapsed trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station and the subsequent allegations that have been made of an undercover officer, who had infiltrated their group as an agent provocateur. This case, along with the revelations that undercover officers are often promiscuous when carrying out their job, raises serious questions over covert policing and whether it is now time to shine a bright light on this area of law and order.
ACPO, the supervisory body, has now been stripped of its role and there are possibilities that common law actions for negligence and misfeasance in public office may follow suit. The former director of public prosecutions made damning comments about the accountability of covert operations and I would agree that at present accountability is scarce in this undercover world and that the Regulation of Investigatory Powers Act 2000 (RIPA) needs to be more tightly drafted so that activities that are carried out in the name of covert surveillance are proportionate.
It has only been a couple of months since the discovery of West Midlands Police’s misguided Project Champion, which installed CCTV and ANPR cameras in east Birmingham, a predominately Muslim community. The chief constable made the best heart-felt apology he could in the circumstances and it has since been reported that the cameras will be removed – but at the estimated cost of £630,000. Was it worth it? I don’t think so, and examples of these types of surveillance projects worry me as I don’t think they are isolated cases.
Surveillance is out of control and with the enormous costs attached to running these projects there needs to be a greater degree of proportionately in the decision-making process before they are put in action. When they go wrong, they don’t just damage the reputation of the police they damage the fabric of a free society and that takes a long time to heal.
The murky world of undercover policing has now left police officers exposed and the sacred veil that they used to hide behind is no longer there. Proportionate covert policing is the only way forward and this needs to be implemented sooner rather than later for the benefit of all.
BLOG
On the beat
7 February 2011
23 January 2011 - But officer!
The police are getting a bit of a rough time in the press at the moment. Not that I really care as it’s most likely that they deserve it, especially if the stories are true.
Unless you’ve been on the moon this month, you will have heard about the collapsed trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station and the subsequent allegations that have been made of an undercover officer, who had infiltrated their group as an agent provocateur. This case, along with the revelations that undercover officers are often promiscuous when carrying out their job, raises serious questions over covert policing and whether it is now time to shine a bright light on this area of law and order.
ACPO, the supervisory body, has now been stripped of its role and there are possibilities that common law actions for negligence and misfeasance in public office may follow suit. The former director of public prosecutions made damning comments about the accountability of covert operations and I would agree that at present accountability is scarce in this undercover world and that the Regulation of Investigatory Powers Act 2000 (RIPA) needs to be more tightly drafted so that activities that are carried out in the name of covert surveillance are proportionate.
It has only been a couple of months since the discovery of West Midlands Police’s misguided Project Champion, which installed CCTV and ANPR cameras in east Birmingham, a predominately Muslim community. The chief constable made the best heart-felt apology he could in the circumstances and it has since been reported that the cameras will be removed – but at the estimated cost of £630,000. Was it worth it? I don’t think so, and examples of these types of surveillance projects worry me as I don’t think they are isolated cases.
Surveillance is out of control and with the enormous costs attached to running these projects there needs to be a greater degree of proportionately in the decision-making process before they are put in action. When they go wrong, they don’t just damage the reputation of the police they damage the fabric of a free society and that takes a long time to heal.
The murky world of undercover policing has now left police officers exposed and the sacred veil that they used to hide behind is no longer there. Proportionate covert policing is the only way forward and this needs to be implemented sooner rather than later for the benefit of all.
Tuesday, 7 December 2010
Guardian- Comment is Free
Student sit-ins are not acts of trespass
The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession
Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history
Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.
The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.
Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.
The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.
As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.
The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.
http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass
The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession
Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history
Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.
The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.
Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.
The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.
As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.
The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.
http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass
Solicitors Journal - Occupied Minds
Occupied minds
6 December 2010
Main Page Content:By Sophie Khan
Judges must not allow possession orders to trespass on the legality of student sit-ins, argues Sophie Khan
As the wave of student protests rips across the country, it seems the police are not the only ones raising their game against the students. On 24 November, the School of Oriental and African Studies (SOAS) made a claim for possession of property against ‘persons unknown’, including students of the SOAS. The order sought possession of the Brunei Suite, a facility room which had been occupied by the students since 22 November.
The students had organised a sit-in to protest against the coalition government’s proposals to cut university budgets and raise tuition fees, forming part of a larger, on-going protest by students across the country. The demonstration was peaceful and those involved were careful not to interfere with the proper functioning or activities of the university.
Although the students were exercising their article 10 and 11 rights during the sit-in, the claim for possession was granted to the university on 25 November by Henderson J who was presiding over the case. He relied heavily on the case of Appleby and Others v United Kingdom [2003] 37 EHRR 783 in support of his judgment for possession.
Striking a fair balance
In that case the applicants who lived in Washington, Tyne and Wear had been campaigning against a plan to build on the only public playing field near Washington town centre. The applicants in March and April 1998 tried to set up a small stall in The Galleries, a shopping mall that had become the effective town centre.
The private company that had recently bought up most of the shopping area from the government had refused them permission to collect signatures for their petition. They relied on the rights of article 10 and 11 of the ECHR on the bases that the shopping mall was a quasi-public space in which individuals could claim the right to exercise freedom of expression and assembly in a reasonable manner.
Although the majority judgment in that case recognised the importance of their rights, it stated that they were not unlimited and that the property rights of the owner of the shopping centre had to be taken into consideration. However, the dissenting opinion of Judge Maruste recognised the importance of wider considerations when striking a fair balance between the competing rights.
Maruste J said: “The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society.” If wider considerations were to be taken into account, then the contemporaneous student protests would add weight to a defence against a claim for possession against an occupied room which otherwise would not be viable.
Grass roots
The use of possession claims by the SOAS is unprecedented and at worst could be an abuse of process because of the draconian nature of the order, which does not allow for proportionality to feature in the argument against. And, although the SOAS was the first university to claim possession against occupying students, it will not be the last – at the time of writing Cambridge University had obtained an interim injunction against a student occupying the Old Schools building.
The lack of case law on this specific type of possession claim also creates problems for the occupying students. The sit-in could be classed as a quasi-trespass, as the students have the right to enter and remain but not to occupy. However, it is a peaceful protest carried out by students of the university, for the future of their university.
The uniqueness of the occupation therefore distinguishes it from other forms of trespass and could not be classed in the same league as the recent example in Mayor of London v Rebecca Hall [2010] EWHC 1613 Admin, the democracy village case, in which a group of protesters had set up camp in Parliament Square Gardens. In this judgment, Griffin J considered the following questions:
Can the claimant establish a right to possession?
Are the defendants in occupation of and trespassers on PSG?
Does the article 10 and/or article 11 right provide a defence and disentitle the claimant to possession?
Have the defendants breached the criminal law in the course of their occupation, and, if so, is this an exceptional case in which to grant an injunction in support of the criminal law and if so are injunctions a proportionate response to the aims of the mayor to regain control of the gardens for the benefit of others?
Should the court grant an injunction in the exercise of its discretion against any of the defendants?
Filling the gap
Many of these questions would not be applicable in sit-in cases, thereby creating a gap in the law where both the law of possession and the right of assembly do not reign.
The dissenting opinion of Maruste J in the case of Appleby could therefore be used as a starting point to fill that gap, but much work needs to be done on this area before definitive tests are established and applied against student occupiers.
Postscript:
Sophie Khan is a solicitor at Imran Khan & Partners and represented the SOAS sit-in students. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?storycode=17388&encCode=2079109861BC8633923JTBS737226611
Solicitors Journal -Poor Quality
OPINION
Poor quality
29 November 2010
- Main Page Content:By Sophie Khan
The introduction of a quality assurance scheme in this delicate legal environment would be disastrous, warns Sophie Khan
On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget “to ensure that legal aid is provided to the poorest and is preserved for the future”. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), ‘Advocacy 2020’ which was held
a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.
The scheme has sprung from the ideology that there is a ‘problem’ in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.
The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.
The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.
Driving force
It is the question of ‘costs’ that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.
The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.
No evidence
The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to ‘traffic light’ advocates’ performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.
Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.
Hampering needs
The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.
It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.
So the jury is out for the future of advocacy, at least until next year.
Postscript: Sophie Khan is a solicitor at Imran Khan & Partners and a member of the Solicitors Association of Higher Court Advocates
Poor quality
29 November 2010
- Main Page Content:By Sophie Khan
The introduction of a quality assurance scheme in this delicate legal environment would be disastrous, warns Sophie Khan
On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget “to ensure that legal aid is provided to the poorest and is preserved for the future”. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), ‘Advocacy 2020’ which was held
a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.
The scheme has sprung from the ideology that there is a ‘problem’ in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.
The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.
The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.
Driving force
It is the question of ‘costs’ that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.
The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.
No evidence
The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to ‘traffic light’ advocates’ performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.
Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.
Hampering needs
The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.
It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.
So the jury is out for the future of advocacy, at least until next year.
Postscript: Sophie Khan is a solicitor at Imran Khan & Partners and a member of the Solicitors Association of Higher Court Advocates
Friday, 22 October 2010
Solicitors Journal - Thin Blue Line
Thin blue line
19 October 2010
By Sophie Khan
The commissioner's outdated attitudes to police accountability are part of the problem, not the solution, argues Sophie Khan
It was a surprise to read that Sir Paul Stephenson had written to the home secretary with his concerns over legal costs. He has failed to take on board the arguments that have been made time and time again by civil action against the police practitioners and civil liberties groups which link accountability to costs. Instead he has proposed in his confidential letter to Theresa May that he wishes to “make it harder for people to sue the police for damages in civil actions”.
This is a clear signal by the commissioner that he attaches no significance in redressing civil wrongs committed by police officers and that ‘accountability’ is a word that does not apply to the police. This outdated approach in dealing with an ongoing problem is one of the reasons why the police have lost the respect of their communities and are likened to a ‘gang in uniform’ rather than officers of the law.
The only solution
The proposals the commissioner should have put forward would be to recognise that accountability is the only solution to his desire to reduce costs and propose steps to bring about the level of accountability that will address the numerous allegations of police misconduct. At present it is only through civil actions that there is real accountability against these abuses and is the only platform where the evidence can be comprehensively tested and the wrong redressed.
In the absence of civil actions there would be no delivery of justice to those who have genuinely been wronged and as a society we would be allowing a two-tier system to operate for the police, which would be unfair and has no place in due process and the rule of law that we as British citizens value and cherish.
The commissioner could of course argue that public bodies such as the IPCC and the CPS are there to ensure such breaches, civil wrongs and criminal acts are addressed. However, it has only been a recent development by the CPS to prosecute more police officers and the looming cuts on the CPS which have already seen a freeze on recruitment could lead to a lack of resources rather than the will to prosecute more cases in the future.
One of the difficulties I have experienced with the IPCC is its reluctance to take a more direct approach against the police officers working in the Directorate Professional Standards and Professional Standards Board and face them head-on on complaints that have not been dealt with sufficiently and ones that should have been upheld.
No acknowledgement
This has been an ongoing issue for several years and to date has not been addressed and is unlikely to be addressed in the near future. The existing framework of accountability in my opinion is not working and is the cause of many of the civil actions that are subsequently brought by those same complainants as they are dissatisfied with the complaints procedure and feel that their grievances have not been acknowledged by the police.
The commissioner needs to take on board that police officers, like everyone else, have to be held accountable when procedure is not followed or when there is evidence that a civil wrong or criminal act has been committed. His attempt to circumvent the rule of law for his officers through the back door is not welcomed and will be strongly opposed. It also raises serious questions over his commitment and motivation to the new era of policing and whether the lessons of the last 30 years of police misconduct have had any impact on the police.
Postscript:
Sophie Khan is a solicitor specialising in actions against the police at Imran Khan & Partners. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?storycode=17120&encCode=902488516BC2173923JTBS737226611
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