Author Archives: Chris Gale

About Chris Gale

Chris graduated from University College Cardiff in 1977 and qualified as a solicitor in 1980. He moved to academia in 1990 with an appointment at the Polytechnic of North London and joined Leeds Metropolitan University (Leeds Law School) in 1994, becoming head of undergraduate studies and being responsible for profiling, timetabling and staff development across the School. He joined Bradford University Law School as the inaugural Director of Legal Studies in July 2005.

Specialties: Human rights, Sport and the Law, Public Confidence in the Legal System

Solicitors & barristers – and law students: isn’t it time they met?

law-1There is no reason why a law student need ever come into contact with a solicitor or barrister at any point in their academic career. As Head of Bradford University Law School, I find this an interesting conundrum.

A recent chance conversation about how involved medical practitioners were in the training of students from an early stage made me reflect on how different that is from the training of solicitors and barristers.  True, not every law student wants to go into the professions and less than half actually do, whereas the vast majority of medical students seem bound for their profession if they can stay the course.

A recent article in the Guardian suggested that the legal training system is failing some graduates. Some universities have introduced types of practical training into their degree courses and all encourage students to seek vacation opportunities with local professionals as a means of getting their names and faces known for future job applications. Many invite guest speakers from the local profession, but it does remain true that a student on a traditional law degree might never encounter a practising solicitor or barrister during their university career – much like it was forty or more years ago.

The 3-stage legal training model

The whole legal professional training regime is currently split into three stages:

1.      The academic – where the content of the law is studied.

2.      The practical – where the professional examinations , applying the learned law to actual practice-related scenarios, are taken (still classroom-based).

3.      The vocational – where the student spends a year in pupillage (to be a barrister) or two years in a training contract (to be a solicitor) actually working with experienced professionals.

There are moves away from this strict formula, but even the suggested alternatives are likely to leave most entrants to the profession in a position similar to the present.

Professional stand-off or healthy respect?

This stand-off between direct involvement of the profession in training and of the university-based trainers in practice continues after qualification.  Solicitors and barristers are as well able to look up and assess changes in the law as academics, so they do not need to engage further with those who taught them how to study law.  Academics in law schools may theorise on WHY the law has changed and the merits or otherwise of the change. Practitioners, on the other hand, will want to know what effect the changes will have on the decisions of Judge X in court next Monday morning. The theorising will not earn fee income for the practitioner and the practical aspects of Judge X’s court or the practice rules will not be of anything more than  general interest to the academic – if only because he or she will not be appearing before that or any other judge.

Of course, there are solicitors and barristers who become academics and academics who also practise, but it is seldom that a Law School has a number of members with feet squarely in both camps and seldom that a practice or chambers has a number of its members involved in the academic training of students.  Practitioners and academics have a healthy respect for each other but also a suspicion:

  • Practitioners suspect that academics know more about the law than they themselves do but have no idea how to make money out of it.
  • Academics suspect that practitioners are more involved in applying the law in order to increase their fee income and less in the detail of the law itself.

Occasionally, a relationship between practice and a university flourishes and is of benefit to both communities, but this tends to be because of the character of the people involved rather than it being a natural occurrence.

Whether the involvement of medical practitioners in training from an early point is of significant benefit or not is difficult to say.  But shouldn’t lawyers be increasingly aware of other models of training in other professions and be looking harder to exploit synergies for the good of all concerned?

Triesman and Duchess of York: careless talk cost them their privacy

newspapers rollingWhat do Lord Triesman and the Duchess of York have in common?  There may be several things, but the obvious one is their embarrassment at having been caught on tape saying things which, when released into the public arena, cause them damage.

Lord Triesman felt compelled to resign as Chairman of the Football Association last week after being taped apparently speculating that some countries who were also bidding for rights to host the 2018 World Cup would try to bribe referees and Sarah Ferguson was left in a very difficult position after she was caught purportedly selling ‘access’ to her former husband, Prince Andrew.

Different people, similarities in the situation and the one sure thing they have in common is that neither consented to the recording of their conversations nor did they expect to hear them played out in the world’s media.  All of which drives us to consider what rights of privacy each of these people, and indeed the rest of us, have in these days when covert recording is possible in many situations.  As there is no ‘law of privacy’ as such in this country, piecemeal attempts to protect confidences have been made by the judges so as to all but construct one in some, but by no means all,  situations.  It has always been the case that if something is said and it is untrue, then absent a public interest defence by the publisher, damages for defamation could be sought in the courts.  This is all very well, but the genie is out of the bottle and there is no way people will forget what they heard –even if it is later shown to be untrue.

People who find out that something is ABOUT to be published concerning them and they do not like the idea can seek an injunction from the courts stopping publication.  Here, the courts weigh up the differing claims to ‘privacy’ in the individual’s case under Article 8 of the European Convention on Human Rights on the one hand, and the press’s claims under Article 10 to freedom of expression.  A clash between these competing claims was foreseen when the Human Rights Bill was drafted in 1997and section 12 of the 1998 Act provides for how this balancing act should be carried out.  With publication on an overseas based website always possible whatever happens in the domestic courts, it is debatable how much effect any such order really has. The more of a ‘celebrity’ the publication relates to, the more likely it is to leak out or be in the public interest to have published.

The only certainly seems to be that if you say or do something, be very aware that you may hear or see it repeated in the media at some time in the future. It may be smug to suggest that everyone should lead a blameless life and trite to counsel people to be more cautious, but it is certain that there is no guaranteed way of keeping anything said or done out of the media and so maybe people really do need to ‘mind their ps and qs’ more if they don’t want to see themselves in print or glorious technicolour!

Legal rights for voters who couldn’t vote in UK elections

ballot-boxOfficial election monitors from Commonwealth countries were at the UK General Election last week, presumably hoping for hints as to how to run free elections efficiently.  Instead they were shocked and believed the integrity of the result was at risk because the system is based on trust rather than security and proper identity checks, according to The Sunday Times.

Ballot system open to abuse

Observers from countries such as Kenya, Sierra Leone, Bangladesh, Malaysia and Nigeria believe the system where people turn up to a Polling Station and simply give names and addresses (polling cards are issued but do not have to be shown) in order to be issued with a ballot paper is open to abuse.

If there is room for abuse, this has been there for many years as the system has barely changed since Victorian times despite the considerable widening of the franchise.  The Electoral Commission has warned of possible problems for years but has no funds or power to do anything, and successive governments have not acted as presumably they felt the system just about hung together.

Voters queued for hours – and still no vote

Last Thursday saw reports of people as young as 14 being issued with polling cards and a number of people being denied the right to vote, in numerous locations, despite queueing for hours before the polls closed.  The result of the election has seen a rise in interest in the electoral system and how it is administered and changes to both now do seem likely.

Is there any redress for those who did not vote despite being in the queue when the polls closed?  An electoral petition under the Representation of the People Acts could see orders for a rerun of the election in constituencies where the result was close, but no individual redress.

Compensation may be available

However, Article 3 of the First Protocol on the European Convention on Human Rights, adopted as part of UK law from 2000 in the Human Rights Act 1998 says that free elections must be held at reasonable intervals by secret ballot ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’.

A right without a remedy is odious, so compensation may be available under the Human Rights Act for individuals who can prove they were denied the opportunity of voting last Thursday.

Trial without jury

juryThis year, the British legal system entered its newest and one of its most controversial chapters; a criminal trial without a jury.  This trial is the first Crown Court case in England and Wales to be heard by a judge alone using powers under Sections 44 and 46 of the Criminal Justice Act 2003, which came into force in July 2007. It allows for a trial without a jury when there is evidence of “a real and present danger that jury tampering would take place” and where additional measures to prevent it would not fully succeed.

It is the first time a major criminal trial has been heard without a jury in a British court in 400 years. The case in question is, of course, that of a £1.75m armed robbery alleged to have been carried out by John Twomey, Peter Blake, Barry Hibberd and Glen Cameron at a warehouse at Heathrow in February 2004.  This came to public attention last week, more because one of the defendants left the court over lunch, not to return and thus breached the terms of his bail for which an order for his arrest was made by the judge – than because of its legal novelty.

It is the fourth time the case has come before the court, costing the taxpayer an estimated £24m. Last year the Court of Appeal ruled that it should now be heard by a judge alone because of the danger of jury tampering. The last trial had to be abandoned over those fears.

Dispensing with the jury meant that the formality of selecting and swearing in 12 jurors would not need to happen. And time-consuming legal arguments, deciding what those jurors should and should not hear about the defendants, would also be rendered irrelevant.

But that is not to say things were straightforward. The initial legal argument centred on the judge, Mr Justice Treacy, who pondered aloud whether, by looking at information which would he would rule should not be introduced as evidence, the defence teams would then request that he did not try the case. They would not, he was assured and yet surely there is the nub – is it humanly possible to put completely out of mind something that has been seen and considered even if discounted?

Amid the discussion over what could and should happen, barrister Sam Stein QC summed up the apparent confusion surrounding the situation at the start of the trial by saying: “We are breaking history. This is the first time a court has started a juryless trial.”

As the debate continued in Court 35, so did a small protest outside the building. Protesters stood with banners bearing messages such as: “No Jury, No Justice” and “Secret evidence = secret injustice”.  The jury system may be, as the late Lord Denning once remarked “the worst system possible – apart from all the others”, but it does have the advantages of perceived independence and fairness.  It is to be hoped that the current trial remains what it is meant to be, an exceptional case, rather than a Trojan horse leading to more and more trials in front of increasingly battle hardened judges sitting alone with that horse being sprung more by financial needs than those of justice.

Time to bin the super injunction

lawSome interesting legal points come out of the John Terry affair.

First, it seems that, eventually, the High Court found, by lifting the injunction, that the freedom of the press to report under Article 10 of the European Convention on Human Rights trumped John Terry’s Article 8 right to privacy.

Much of the discussion here seems to have been on the point that publication would damage John Terry’s commercial interests rather than true ‘privacy’ issues such as the trouble it may cause his wife and children, but it is nonetheless a decision to note.

Rather more significant, however, is the whole idea of the ‘super injunction’ as was the order originally obtained by Terry’s lawyers. This is not only an order banning the publication of a particular piece of information but also an order that the ban itself cannot be spoken about.  In other words, the people against whom the order is made not only cannot report what they originally wanted to but they can’t even say that they can’t!

Clearly if they could say ‘we’ve been banned from reporting John Terry’s affair’, then the damage is already more or less done and it was for this reason that the courts invented the idea of the super injunction but it is potentially something of a monster.

An example of how relevant these orders can be in the business world was the super-injunction raised in September 2009 by solicitors on behalf of oil trader Trafigura, prohibiting the reporting of an internal Trafigura report into the 2006 Côte d’Ivoire toxic waste dump scandal.

The existence of the super-injunction was only revealed when it was referred to in a parliamentary question (mention in which Parliamentary privilege permits the disclosure without being held in contempt of court), which was circulated on the internet, leading to the injunction being varied (before it could be challenged in court) to permit reporting of the question. By long legal tradition, parliamentary proceedings may be reported without restriction. Parliamentary proceedings are only covered by qualified privilege.

How many such orders have been made is difficult to say as the general public only get to know about the existence of the original order and what it was banning if it is successfully challenged in court, but the fact that there are any at all is hardly a good advertisement for ‘open justice’.

The Guardian newspaper reported in October last year that it had been served notice of applications for this type of order twelve times in the period from January 2009.  The judges invented the orders and can change their format too but so can Parliament by primary legislation if it feels so inclined.  This is hardly likely to be a vote winner in the forthcoming General Election as there are so many more headline grabbing issues, but it is certainly something that needs thinking long and hard about if we are to maintain our reputation in the UK for fair and transparent legal proceedings.

Learning from donkeys – in Nigeria

I am writing this from Lagos in Nigeria.  It is a bustling city with many people trying to go about their everyday life but often thwarted because of lack of infrastructure.  The electricity supply is sporadic, except to those wealthy enough to be able to afford auxiliary generators. Its newspapers talk of ‘a government policy of corruption’.  Although I have no way of testing that, it does seem that despite vast oil wealth as a nation, many people seem to be very poor, eking out an existence by some means or other.  Sometimes it seems surprising that what actually gets done gets done at all.

I have been talking to a group of people here about the unwritten constitution of the United Kingdom and its merits and demerits.  Nigeria has a written constitution, the current version dating from as recently as 1999 although they have had many more in their near fifty years of independence.  Their President is ill and currently out of the country but he left without mandating his deputy to act on his behalf as the constitution stipulates.

During my visit, the High Court ordered that he return to his post within fourteen days or pass power over, temporarily or permanently to the Vice President.  Tension, some of which is religious between the mainly Muslim north and the mainly Christian south, is growing as to what may happen and there is talk of a possible military takeover, especially if the President does nothing or makes it clear he does not agree with the court ruling.

That said no one I have met wants trouble. Stirrings seem to be made by the politicians. Military government is something to which Nigeria is not unused and while a form of order may be imposed for a while, most promises to restore democracy by the military, in whatever country, fail to materialise for many years.  A relatively benevolent, well meaning General is often replaced by someone with not quite such altruistic motives.

Lagos is home to many donkeys.  Many look poor, dishevelled things being asked to carry more than is donkeyly possible and, again, it is amazing that what gets carried does get carried.  But persevere they do – both locals and donkeys.  There are few pictures of contentment here although both the people and the donkeys are incredibly friendly and hospitable.

By co-incidence my daughter owns a donkey.  Margate Maisie we call her which is both her given name and descriptive of her seaside career until she came to Yorkshire to be part of a pampered set of former working donkeys.  Not that she had too bad a life at the seaside by all accounts. She lives in what seem to be ideal circumstances and, when I walk the dog before or after work, I often go past her field and watch as she and her friends go about everyday life without any apparent care in the world.  If I go to the fence with an apple, we often stand there together for minutes on end, Maisie eating, the dog hoping to eat and me reflecting on the day ahead or just gone. It is a picture of contentment.

Constitutional crises are, mercifully, rare in the United Kingdom, although an unwritten constitution where some of the ‘rules by which we are governed’ are unclear would seem to be more of a recipe for potential trouble than where they are laid down in apparently clear written form.  Any transition of power from the Labour to Conservative parties later this year will inevitably be a smooth affair. The moral seems to be that where there is a will for order and compromise, it is likely to come about whatever type of constitution is in place and where there is no such will, disaster looms.  I pray that Nigeria sees reason and that the will of the people and not the politicians or unelected military prevails and an agreement for a way forward can be reached. No one, in any part of the country, region or world will gain if it is not.

And the relevance of all this to the donkeys?  In each country, they will just go on in their usual way, whatever happens politically. And so will the people, as best they are able. I know I would rather be Maisie than a Nigerian donkey, but really hope that the burden they currently carry does not have to get any heavier.

It’s time for football to be regulated properly

I was looking through the football results at home last weekend and found yet more reference to the shocking number of European countries that now look to be involved in football match-fixing.

While the UK is not implicated, it did make me think that this should be a wake-up call to look at how the billion pound activities of sport are regulated and dealt with by the courts.

Historically the UK’s legal system has treated the sporting world as more of an ‘old boys club’ than an industry with investment from fans, banks and corporate sponsors. I remember when the Premier League was set up in the early 1990s.

At that time the Football League sought a judicial review of the Football Association’s decision because it thought it was going to lose out by the best clubs being hived off into a different organisation.  The Football Association who set up the Premier League wanted to act so quickly that they appeared to be in breach of their own rules as to how much notice should be given.  The Football League hoped it could slow the process down.  Unfortunately, the courts, rather than deciding the case on its merits, felt that the Football Association was not a public body and thus its decisions were not susceptible to judicial review – and that remains the case in England despite the courts in Scotland coming to exactly the opposite conclusion.

The implication of this decision was profound.  Anyone with a complaint about the governing body of a sport will have to find a private law action – such as breach of contract or restraint of trade – when trying to get its decisions looked at by the courts.  This is at odds with city regulators and other ‘overseeing’ bodies in other industries which are largely reviewable. The ‘magic’ of judicial review is not necessarily the end result, but the immediacy and transparency of the process.

It also seems to me that the British obsession with football has extended to funding of clubs.  A great many football clubs are at the end of their useful lives and if they were treated as a business, they would be wound up.  Yet they continue to be funded.  Contrast that to the lack of tolerance given to, say, a manufacturing company in the current recession.  A lot of loyalty may attach to many of the decrepit old football grounds and clubs – but that is often the case with old local businesses as well, but they don’t get the same generous treatment whether from the banks or HMRC.