Law in Practice

Paul Epstein QC and Ed Williams explain witness familiarisation – the training, judicial attitudes, and how to stay within professional boundaries  

In the recent High Court battle of the oligarchs between the late Boris Berezovsky and Roman Abramovich the case turned on conversations several decades earlier. What the two men said and how they said it was central to Mrs Justice Gloster’s eventual judgment dismissing Mr Berezovsky’s £5bn claim. 

The criminality underpinning the Telford and Oxford grooming trials has put child sexual exploitation in the news. Hugh Davies OBE QC and Madeleine Wolfe examine the United Kingdom’s record in protecting vulnerable children abroad from systematic sexual abuse  

No serious commentator doubts either (i) that the sexual abuse of children internationally is a substantial industry; or (ii) that the United Kingdom has positive human rights obligations to children to prevent harm from British nationals who represent a significant risk of such extra-territorial offending. The Sexual Offences Act 2003 (“SOA”) presently legislates for three forms of civil prevention order: Sexual Offences Prevention Orders (“SOPOs”); Foreign Travel Orders (“FTOs”); and Risk of Sexual Harm Orders (“RoSHOs”). A recent multi-agency ACPO commissioned review, led by one of the authors of this article, concluded that this statutory regime is failing adequately to prevent sexual harm to children both abroad and within the UK. It proposes a new form of order, specifically relating to children, better to prevent such offending. 

International child exploitation
It is intrinsically difficult to quantify the nature and scale of the industry of international child sexual exploitation. On any view of the figures they are appalling. Children are rendered little more than tradable commodities in many countries. The United Nations estimates that as many as two million children are employed in the commercial industry of sexual abuse internationally, and (for example) that 35% of Cambodia’s 55,000 commercial sex workers are under 16 years’ old; the figure for Brazil, host country for the next World Cup and Olympics, is “as high as 500,000”; ECPAT (an international NGO campaigning against child sexual exploitation and trafficking) estimates the figure in Thailand alone at between 200-250,000, including children trafficked from Burma, Laos and China specifically for that purpose. There is equivalent data for many other countries, and hundreds of thousands are trafficked internally and internationally for exploitation annually. 

Dr Vicky Kemp examines PACE protections and access to legal advice  

For more than a quarter of a century the Police and Criminal Evidence Act 1984 (‘PACE’) and its Codes of Practice have provided legal protections for those arrested and detained by the police; including access to free and independent legal advice. How has it worked in practice? Why do so many refuse to take up the offer of free legal advice? 

As a Principal Researcher with the Legal Services Research Centre, which had been the independent research division of the Legal Services Commission, from 2008 to 2012 I had undertaken a number of studies into police station legal advice. The first study involved a survey of over 1,000 users in the criminal justice system, which was conducted in six cities during 2008. Further research was undertaken, including a small-scale study of eight police custody suites (one station was in the city where the survey was conducted and the others based in five different areas) and interviews with defence practitioners. In 2009 we carried out a statistical analysis of over 30,000 police custody records drawn from four police force areas. There followed in 2010 a qualitative study of the main police station in each of these four police force areas. In one of the police stations observed an initiative was set up to help improve access to legal advice. This involved duty solicitors based full-time in the police station and the initiative was subject to a three-month review in 2011 and then again in 2012. 

Under CPR 31.5, disclosure has been catapulted to the front of the litigation timetable. James Morrey-Jones and Damian Murphy explain  

One purpose of the Civil Procedure Rules was to narrow the quantity of discoverable documents by making a document disclosable  (the change in nomenclature signifying a break with the past) only when it was going to be relied upon by the disclosing party or when it adversely affected his own case or supported the case of the other side. By the time of Lord Justice Jackson’s review the volume of disclosure, rather than being reduced, was instead high and climbing. The result is CPR 31.5 which will apply to all multi-track cases (apart from personal injury and clinical negligence) where the first case management conference takes place on or after 16 April 2013. 

The new process
The starting point is that 14 days before the first case management conference each party must file and serve a report, verified by a statement of truth, describing the documents that exist or may exist or may be relevant to “matters in issue”. The report must also describe where and with whom the documents are located: and for electronic documents, the way in which the documents are stored. An estimate of the costs of giving standard disclosure is required and the parties must make their selection from the disclosure “menu” at new CPR 31.5(7) and 31.5(8). 

Penny Cooper reports on plans to revise the Victims’ Code and enhance entitlements for the vulnerable.   

In February 2013, Frances Andrade committed suicide a few days after giving evidence in the Crown Court. Within days of the verdict, Helen Grant MP, the Minister for Victims and the Courts, held a roundtable meeting at the House of Lords. Those present included representatives of the CPS, the Ministry of Justice and HMCTS as well as the Chairman of the Bar and the author representing the Advocacy Training Council’s Vulnerable Witness Committee. Discussions focused on support for complainants in sexual abuse cases and improvements to the Victims’ Code. The coalition had previously made a commitment to reviewing the code and work was already under way. The revised Victims’ Code (“the 2013 draft”) became available on 29 March (https://consult.justice.gov.uk/digital-communications/code-victims-crime) with consultation running until 10 May. 

Gay refugees seeking asylum in the UK are having to resort to drastic measures to “prove” their sexual identity, as S. Chelvan reports  

There are 78 countries in the world which criminalise any form of same-sex conduct in private by consensual adults (2012 ILGA state sponsored homophobia report). Of  these countries, 42 specifically single out lesbians; five (Mauritania, Sudan, Saudi Arabia, Yemen and Iran) provide the death penalty. The Islamic states of Nigeria and parts of Somalia also enforce the death penalty. In Uganda, the Anti-Homosexuality Bill renders criminal prosecution of even straight landlords for not reporting the fact that they have a gay tenant. It is not a safe world to be gay. 

Does the statutory regime governing the disclosure of convictions, cautions and warnings to prospective employers breach an offender’s right to privacy? Shereener Browne reports  

The Rehabilitation of Offenders Act 1974 saw an important principle enshrined in statute: that people who have committed certain offences some time ago should, generally speaking be allowed to keep those misdemeanours in their past. At the heart of this legislation was the recognition that an individual’s future should not be blighted by what may often have been an impulsive act made in the blush of youth. 

Stephen Sedley considers attempts to settle the competing claims of European and national courts  

The states composing the Council of Europe, now 47 of them, have their own supreme court, the European Court of Human Rights, which – not unlike its US counterpart – has come under increasing fire for interfering unduly in member states’ affairs and trying to make one size of human rights compliance fit all. At a theoretical level there seems something wrong with this critique: one size should fit all, for the meaning and effect of fundamental rights cannot logically vary from one country to another. But at a practical level it addresses a real problem: decisions about legal processes framed at a level of generality large enough to embrace all member states may well be unworkable in some of them. 

Specialist Mercantile Judge, HHJ Waksman QC, explains how hot-tubbing, by saving time and narrowing differences, has a role in reducing costs under the new regime   

What is hot-tubbing?
Hot-tubbing is the colloquial name given to the process of taking expert evidence concurrently at trial. So instead of the expert evidence being taken sequentially, the experts go into the witness box together. This allows the judge and/or the advocates to question them on a specific point at the same time – and usually the response from one will be followed immediately with a response from the other. Sometimes they will make follow-up comments or even question each other but all under the direction of the judge. The actual procedure to be adopted in any given case may vary and is a matter for the judge’s discretion. The process has been likened to a structured dialogue facilitated by the judge. 

The Jackson reforms will bring about radical changes in civil justice. In the first of three features, Stuart Sime examines the balancing of costs and justice and explains the new rules  

1 April 2013 is the implementation date for a range of reforms implementing the key recommendations made by Sir Rupert Jackson in his Review of Civil Litigation Costs  (Final Report, Ministry of Justice 2009). These are the most significant changes in civil justice since the introduction of the Civil Procedure Rules in 1999.