Vol 1 Issue 6 Spring 2006 Newsletter

Chambers Growth in line with Plan

Rougemont Chambers continues to grow at a healthy rate. Last Autumn, Andrew Worthley and Charles Murray accepted offers of full tenancies in Chambers, having successfully completed their pupillages.
Andrew was Nicholas Berry’s pupil when Nick joined chambers in December 2004. He completed his first-six with Nick and then spent his second-six under the guidance of Sara Trumper, whilst developing his own practice. Since joining chambers, Andrew has had great success before employment tribunals as well as in the civil and family courts.

Charles came to chambers, having spent seven years working as a solicitor at Tozers in Exeter, latterly as a Solicitor with a Higher Courts Advocacy cer tificate . Charles became Michael Berkley’s pupil and completed a voluntary third-six pupillage in November 2005. He has already become an asset to chambers` civil team.
At the end of November, Jenni Wilson returned from her sabbatical in Kenya and took up her seat in Chambers where she continues to specialise in family law and crime.
Garth Richardson (called in 1975), joined Rougemont Chambers as a door tenant in 1998. His principal chambers at that time was 3 Paper Buildings, where he practised out of Winchester and Bournemouth. Chambers was delighted when Garth applied to join chambers full-time and he became a full-tenant with effect from 1 March 2006. Garth will greatly strengthen the criminal team having immediately made his mark by winning an “unwinable” case in Exeter Crown Court.

Chambers grew from 17 full members to 21 within the space of 5 months and the issue of space became a problem. This has been solved by chambers taking over the first floor of 8 Colleton Crescent. The clerks’ room has now moved to the first floor, where we can now also offer additional, very well- appointed conference facilities.
While all these changes have been taking place , a new server for the chambers` management system has been installed; the first step in the overhaul of the chambers computer system, which will see all barristers, as well as clerks, networked by the end of next summer. After this period of growth, we are expecting a period of consolidation that will allow our clients to benefit from the changes that we have made.

Spotlight On: James Bax

James Bax graduated in Law from the University of Lancaster. He undertook the Bar Vocational course and was called to the Bar in 1999. Whilst waiting for a pupillage to commence, James went to work for Gilbert Stephens in Exeter, working in the Personal Injury Department under the watchful eye of Alistair Heron.
Alistair says of James: “Before deciding that his future was to be at the bar James Bax was a valued member of our litigation team at Gilbert Stephens. Since then we have been very pleased to continue our association with James having instructed him on a wide variety of civil matters”.

It was during this time that James attended upon Michael Berkley for a trial. Michael was impressed with James’ clerking and James liked chambers. He applied for pupillage and was successful. James joined chambers in 2000 for a first-six month pupillage, which was extended to a full twelve months` pupillage,under the guidance of Michael Berkley. At the conclusion of his pupillage, James accepted chambers` offer of tenancy.
James joined Rougemont Chambers with the intention of developing a Civil Law practice. As a junior tenant he handled the full ambit of chambers junior work, impressing solicitors in all spheres.

Nick Roper, Partner in charge of the Employment Department at Wolferstans in Plymouth comments; “I have worked with James on a number of Employment law related matters and I have always been impressed by his thorough and considered grasp of the issues and his confident and helpful manner”.
James is building a busy practice in the areas of personal injury,employment and general common law although he still practices in criminal law, where he prosecutes and defends in the Crown Court.The personal injury work that James undertakes includes Fatal Accidents Act and workplace claims. He accepts instructions from both Claimants and Defendants.

Privately, James enjoys sailing ;he has recently sold his dinghy as he now regularly crews on a racing yacht (don’t try to book him during Cowes week or the weeks of the Dartmouth Regattas). When back on dry land, James enjoys skiing and mountaineering.

Sam Morgan - Would like to meet.....

Sam is a “thirty-something” barrister`s clerk in the West Country. He is not too short and has some brown hair and brown eyes.Sam`s star sign is a donkey. He enjoys walking, but sometimes falls over. He has a dog named badger. Sam`s ideal partner is a sane, property- owning woman who has a badger named dog.

Seminars 4 U

Rougemont Chambers is presently seeking accreditation from the Law Society for a series of seminars, dates and details to be provided shortly. They will be spread throughout the rest of 2006.

The planned areas of law are:

• Employment Law
• An Introduction to Ancillary Relief
• Personal Injury
• Child Care and the Adoption Act
• Civil Mediation

As we are still in the process of putting these seminars together, if there is a particular area of law which you would like us to cover, please let us know by contacting us on clerks@rougemontchambers.co.uk

Unfinished Business

One of the most frustrating aspects about life at the Bar is that you don’t always get to see the end of a case. This often happens where advice is given early in proceedings or when a case settles without any input from counsel. Sometimes, solicitors write to counsel to let them know the outcome but often, counsel’s fee is paid and we hear nothing further. Please feel free to write to counsel to let them know the outcome of cases – good or bad. It is helpful for barristers to know how the pleadings they drafted or the advice they gave affected the outcome of a case

Costly Changes in Ancillary Relief

As from the 3rd April 2006, family practitioners s hould all be aware of new costs provisions coming into force relating to ancillary relief proceedings. The Family Proceedings (Amendment) Rules 2006 (SI 2006/352) will insert a new r.2.71(4) into the F amily Proceedings Rules 1991,providing that:
(a) The general rule in ancillary relief proceedings is that the court will not make an order requiring one p arty to pay the costs of another party;but
(b) the court may make such an order at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them).”

Other minor amendments are also made, but it is this provision that is expected to have far-reaching consequences. It follows a trend, which is already existent in ancillary relief proceedings,not to follow CPR r.44.3 in making costs orders against the ‘unsuccessful’ party to proceedings. However, this reform may well be the death knell of joint privilege or ‘ Calderbank’ correspondence, which in many cases can still serve a useful function in attempting to negotiate settlements, particularly where privately paying clients are keen not to incur more fees than necessary.

The question will be to what extent the courts will follow what is termed a ‘general rule’ and consequently, what sort of ‘behaviour’ will persuade a judge to a ward costs to the other party.Guidance can be found in what appears to be an exhaustive list of factors in r.2.71(5) including: offers to settle, failures to comply with rules, conduct and the financial eff ect of an y order. Clearly there be many cases in the next few years seeking to clarify and a pply these factors, which can only mean more contentious proceedings and less successful negotiations. What may create extra work for family practitioners will just add to the public conception of lawyers greedily vacuuming up family assets and savings in contested cases.
However, I would not be surprised if this attempted reform fails to buck the trend of progressive Part 36 correspondence in civil litigation, and as such would encourage practitioners to continue to use the valuable Calderbank in attempting to settle, as the applicability under 2.71(5) may prove to be just as persuasive as it once was.

REPORT FROM KENYA (Part II)

Prison Education
During my time with CLEAR (Christian Legal Education Aid & Research), my primary focus has been establishing a system of education and referral within Mombasa’s main prison, Shimo La Tewa. Each week, we educate groups of around forty remand prisoners, on topics ranging from adjournments, cross examination of witnesses and submissions of no case to answer. We then answer questions and interview the prisoners, many of whom appear to have suffered the gravest injustices. From these interviews, we peruse court files and endeavour to obtain witness statements (a very time consuming and frustrating process as these have to be obtained directly from the police officers that have arrested the prisoner). We then make a decision as to which cases we can refer to a pro bono lawyer.
We are beginning to see fruit from this work: several innocent prisoners have been r eleased after effective representation by a CLEAR pro bono lawyer. We have many ex- prisoners who visit our office (or indeed stop us on the street) celebrating their release and thanking us for educating them so that they knew what questions they should ask and how to fight their cases. We are also told in the prison that the morale of prisoners has increased significantly, as they now understand that they can speak in court; that they have rights and that when they speak they can quote the law and be taken seriously.

Public Interest Litigation
As well as taking on individual cases, CLEAR aims to conduct litigation that will have a broad impact:

Robbery with Violence
CLEAR is challenging the mandatory death penalty in robbery with violence cases in the Kenya Court of Appeal. Robbery with violence is tried in magistrates’ courts, without adequate disclosure or legal representation. The framing of the Penal Code allows police officers to choose what offence to charge an individual with (robbery or robbery with violence) and so determine whether the individual dies or lives, as robbery does not carry a mandatory death sentence upon conviction. There is a wealth of Commonwealth case law and international jurisprudence to support our arguments. The main obstacle is actually having the case heard. Since my arrival in January, the case has enjoyed a half-day of submissions and many adjournments, some of them highly spurious.

Adjournments (section 205 CPC)
Currently the Kenya Criminal Procedure Code states that adjournments for hearings in criminal cases where the accused person has been remanded in custody should be limited to 15 days.This section of the code is consistently bypassed by simply mentioning cases every 15 days, whilst fixing hearing dates several months apart.We are currently w orking on a legal challenge to this practice . If section 205 of the CPC w er e implemented correctly,it would enhance the criminal justice system in a very significant way .

Childrens` Cases
The second main focus of the CLEAR Mombasa office is childrens` cases.These cases range fr om applications for custody and maintenance on behalf of abandoned mothers, to assisting children who have been abused and orphans whose extended family attempt to steal their possessions.
We have had a long running battle with the Mombasa Municipal Council.We have three clients whose ex husbands are Council employees and who were successful in obtaining attachment from salary orders for the payment of maintenance towards the care of the children. The Council proceeded to deduct the money from the employees and consistently refused to emit the money to the women. After much frustration, we filed a case in Court and obtained three warrants for the arrest of the Town Clerk should he fail to pay the monies o w ed. F or some reason, of which we are suspicious, the Court Bailiff failed to execute the warrant. After much cajoling,the Council reluctantly paid the money.

Conclusion
The work that CLEAR could undertake is infinite. Kenyan citizens are subjected to untold suffering because of poverty, corruption and the abuse of power. It is often heartbreaking when we have to turn deserving cases away because of lack of resources. However, I have seen for myself that the work of CLEAR has made a lasting impact on the liv es of many and will contin ue to do so.

Jenni Wilson

Justice Delayed is Justice Denied
Over the years, I have had more than my fair share of applications to stay proceedings as a result of delay in historical sexual abuse cases in the Court of Appeal, most notably in the c ase of H ooper [2003] EWCA Crim 2427, w here the Appellant was charged and convicted of serious sexual offences going back between 26 and 43 years. The appeal was dismissed by Rose LJ, the Vice-President of the Court of Appeal, Criminal Division, who observed: “…the length of delay (between the alleged offence and the complaint) is but one o f the factors to be considered in the exercise of the trial judge’s discretion as to whether or not to grant a stay”.
In that appeal, as in every other until recently, the test has been the oft quoted case of the Attorney-General’s Reference (No. 1 of 1990) (1992) 95. Cr.App.R. 296, where Lord Lane CJ ruled that it was for the Defendant, on a balance of probabilities, to show that due to the delay,he could not have a fair trial.No evidential burden was placed on the prosecution. It is instructive to note that the delay complained of in that case was just over 2 years,and the Defendant had been warned that a complaint had been made the day after the incident complained of. The Defendant’s application to stay proceedings on the ground of delay was granted by the trial judge. How times have changed!
The placing of the burden on the Defendant has never sat comfortably with a number of practitioners, including myself, but it has withstood the passage of time and a challenge under the Human Rights Act 1998 in the case of Attorney-General’s Reference (No. 2 of 2001) [2004] 2 WLR. 1 HL.

More recently, on 9th November 2004, I was back in the Court of Appeal in the case of R v E.W. [2004] EWCA Crim 2901, one that had slipped through the Vice-President’s net, as it was heard before Clarke LJ.At last, after a number of fruitless efforts, a chink of light appeared. This case involved allegations of sexual abuse going back 20 and 30 years respectively, and the same submission over delay was made. Surprisingly, Clarke LJ ruled that: “once the issue has been raised [by the Defendant], it must be for the Crown to satisfy the court that a fair trial is possible. Nevertheless it must be for the Defendant to raise the issue and to identify those respects in which he says that a fair trial is not possible”. Curiously, Clarke LJ went on to say: “We are not persuaded that this approach is in substance different from that adopted in Attorney-General’s Reference (No. 1 of 1990)”, and then, turning to the facts of the case, he continued: “The Recorder himself had this point in mind. He held, in our view correctly, that in this case, it made no difference to his decision whether he approached the case on the basis of a legal burden of proof on the balance of probabilities lying on the Defendant, or simply as an evidential burden on the Defendant”. Have I missed something? What had happened to the burden on the Crown, adumbrated a few sentences earlier?

In any event, the appeal was dismissed, but this apparent contradiction emboldened me sufficiently to appeal in the case of R v Symons, another historical sexual abuse allegation and heard by the Vice-President on the 6th March 2006. This involved a delay of 26 years, and will almost certainly be reported.The apparent inconsistencies in the two approaches to an application was the main ground of appeal.

I have the greatest admiration for Rose LJ’s ability to square the circle, but for those practitioners whose clients face prosecution for offences said to have taken place many years ago, there is little comfort. The test has been refined to endorse Clarke LJ’s observation: “It appears to us that ultimately the question for the judge on any application for a stay in a case of this kind is essentially whether in all the circumstances of the case a fair trial is possible notwithstanding the delay”. A self-evident observation, and hardly breaking new ground. But no mention of Clarke LJ’s ‘test’, or any burden on the prosecution, so Rose LJ’s ‘test’ has not substantial y altered that laid down by Lord Lane. Nevertheless, it is worth reading the small print when it sees the light of day.
These cases continue to trouble practitioners, particularly against the background of an ever increasing compensation culture, and for those of a curious disposition, the two volumes of the Home Affairs Select Committee’ s Report on historical abuse in childrens` homes make interesting reading.

David Osborne

Death is Well Understood – It’s Life that Isn’t
To many, the purpose and function of an inquest remains a closed book. Many people consider an inquest to be a fact-finding mission akin to a “whodunnit.` In fact,nothing could be further from the truth. In R v North H umberside Coroner, ex p.Jamieson [1995] 1 QB 1,Lord Lane C.J.set out the only four questions that a Coroner has to investigate.

Identification of the deceased. This is normally ascertained either from a close relative or from evidence such as dental records.
Where the deceased died. In most cases, this will be t he place where the body was found but there will be cases where there has been concealement of the body and it has been moved after death. This then becomes a forensic trail, often starting with the body itself. When the heart stops, the blood stops circulating and gravity makes it settle. This is known as livor mortis or hypostasis. The areas where the blood has settled turn dark blue or purple. This starts happening immediately and is visible within a couple of hours.At this point, the skin is bluish and blotchy. After 5-6 hours, the blotches have joined up but the skin goes white when pressed. After 10-12 hours, the blue colour remains even when pressed.The lividity doesn`t show when the body is in contact with something. Thus, a body lying on its back will show lividity in the small of the back and the neck, but not in parts where the body has been in direct contact with the ground.This is very useful in determining whether a body has been moved after death occurred.

Time of death. This can often only be a best estimate unless death was announced in circumstances where there can be certainty (eg in hospital). In some cases, especially where a considerable time has elapsed before the body has been found, the time of death can range over weeks or even months. However, even when partial decomposition has occurred, the forensic scientist has charts of activities b y which the y can assess length of time against degrees of decay.

How the deceased came by his death.This does not mean how the deceased died, which could raise general and more far-reaching issues.The question is what caused the death, not what caused the cause of death. Often, those attending the inquest are seeking the answers that will probably only be answered by either the criminal or civil courts, if at all.

Perhaps the most useful skill required of the advocate is the ability to cross-examine the experts on their own areas of expertise, to elicit the facts whilst at the same time, avoiding either trying to incriminate or exculpate anyone. As Lord Lane stated: “it is not the function of the coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or to attribute blame. ”
Often, the risk for the lay client is that in attempting to exculpate themselves or others, they end up damaging their own position. Careful questioning is essential to avoid a `fatal` mistake.

Gavin Collett