IB April 2017

Interview with
HHJ Kushner QC
Manchester Legal
Awards 2017
Women in Law
Manchester FLBA
News
April 2017

FROM THE LEADER
In Brief
Published in April, August &
December
Editor
Elliw Roberts
St Johns Buildings
24-28 St John Street
Manchester
Tel: 0161 214 1500
elliw.roberts@stjohnsbuildings.co.uk
Deputy Editor
Simon Rowbotham
Deans Court Chambers
24 St John Street
Manchester M3 4DF
Tel 0161 214 6000
rowbotham@deanscourt.co.uk.
Leader of the Circuit
Michael Hayton QC
Deans Court Chambers
24 St John Street
Manchester M3 4DF
Tel 0161 214 6000
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Deans Court Chambers
101 Walker Street,
Preston PR1 2RR
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Telephone: 0161 660 3848
susan.chisholme@northerncircuit.org.uk
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2 In Brief
Leader’s Column
Michael Hayton QC, Leader of the Northern Circuit
From the moment that it was
announced that I was to take over
from Andrew O’Byrne QC as
Leader of the Northern Circuit, I
started to receive many emails,
texts and even the occasional old
fashioned letter of
congratulation. I also received
many more messages
commiserating with me for the
burden that I was taking on. The
commiserations were misplaced;
so far, I am enjoying almost every
minute. However, happily for
me, and typical of the Northern
Circuit, I received a huge number
of offers of assistance should I
need it. I can assure all those that
made those offers that I am
hugely grateful and I am afraid
that I have every intention of
taking all of you up on your
kindness.
It is a huge privilege to be Leader
and I fully appreciate that I have
big shoes to fill. OB has steered
the Circuit through some difficult
times over the last three years
with characteristic assuredness
and in his inimitable understated
fashion. Many of the previous
Leaders have reputations that,
frankly, I find terrifying to be
mentioned in the same breath as.
I can do no more than promise to
do my best and try not to let you
all down.
My early days have been
considerably assisted by Oriel
Chambers’ Rebecca Jones, the
outgoing Junior. Rebecca has
organised some excellent messes
and has ensured that I have been
in the right places at the right
times, as well as being excellent
company. I have little doubt she
is a star in the making. She has
my sincere thanks as she now
hands her role over to Harriet
Tighe of Deans Court Chambers.
Hatty survived a pupillage with
my sister Virginia, and by
comparison I am sure I will be
very low maintenance. I am
confident that she will be an
excellent Junior and I wish her
well.
Another new holder of high and
honourable office on Circuit is
my greatest friend from Bar
School, Lisa Roberts QC. Lisa is
the new Attorney General, the
first female holder of that title in
the Circuit’s 800 year history and
a huge improvement on her
predecessor. No false modesty
there I can promise you. For
those of you who attended either
of this term’s Grand Courts and
heard her Silks’ Speeches, you
will already be aware of the high
quality after dinner advocacy
that we can expect from her in
the future. I am delighted, in
every way, to have her alongside
me on the Circuit Executive
Committee.
As we welcome new incumbents
to their new roles, we also say
goodbye to some Circuit fixtures.
We have recently said farewell to
some of the Bar’s favourite
judges. Court 7 at Minshull Street
was standing room only to see
His Honour Judge Mort off into
retirement and the following day
the CJC had to arrange
proceedings to be beamed to an
overflow court to ensure all those
that wanted to see Her Honour
Judge Linsey Kushner QC and
His Honour Judge Philip Raynor
QC’s valedictories. These three
are huge losses for Circuit. Each
in their own way have been as
well liked as individuals as they
have been well respected as
Judges. Circuit wishes all three of
them long and happy retirements
and hopefully we will see them
at mess in the future.
On a very sad note, Crown
Square has lost one of its longest
serving and best loved members
of staff with the untimely and
tragic death of Diane Ekgren,
who was Catering Assistant for
32 years. Generations of Bar and
Bench have been looked after by
Diane who was always as
cheerful as she was helpful and
caring. Our thoughts are with her
parents.
There are various issues
nationally that are causes of
ongoing concern. New proposed
fee schemes in civil and crime
have been occupying much time
on the various Bar Council
Committees that I have been
attending. I will continue to keep
you all updated on developments
as and when they occur. A split
court times scheme is being
piloted, happily not on the
Northern Circuit; for once. This
has profound and various
implications for all sorts of
practitioners and chambers, not
least those with child care
obligations. Again I can assure
Circuit that a great deal is being
done behind the scenes and
hopefully it is not something that
will trouble us on Circuit in the
future.
Finally, whilst I will endeavour to
keep on top of the wide variety of
issues that arise as and when they
do, inevitably there will be things
that escape my attention.
Therefore, all members of Circuit
should feel free to contact me
should you feel that there is
anything I should know or
anything that you think that I can
help you with. That is what I am
here for.
Michael Hayton QC

EDITORIAL
From the Editor
Elliw Roberts, St Johns Buildings
First and foremost in this edition, it is a very great pleasure to
welcome Michael as the new Leader of the Northern Circuit and, as
such, the newest member of the In Brief team! I look forward to
working with you during your term as Leader.
There are several people who deserve our congratulations in this
edition: we congratulate Sam Karim QC, Kings Chambers, Louis
Browne, Exchange Chambers and David McLachlan QC, 7
Harrington Street on their appointment as Queen’s Counsel. The
appointment is an incredible achievement and a testament to their
talent and commitment to the work they do. We extend our warmest
congratulations to them.
At the same time, we congratulate His Honour Judge Mort, Her
Honour Judge Kushner QC and His Honour Judge Raynor QC on
their retirement. I echo Michael’s sentiments that their presence on
the bench will be sorely missed by members of the Circuit and
beyond and we very much look forward to welcoming them at Mess
following a well-deserved period of rest! Please take a moment to
read our interview with HHJ Kushner QC at pages 6 and 7 of this
Edition and peruse the photos of the retirement party held in honour
of HHJ Kushner QC and HHJ Raynor QC at the Civil Justice Centre
on the 6 April 2017.
Last, but certainly not least, congratulations to those who
successfully completed the Christmas crossword (solutions can be
found at page 15)!
In this Edition, we thank Rebecca Jones of Oriel Chambers for her
service to the Circuit as Circuit Junior and welcome the appointment
of Harriet Tighe of Deans Court Chambers as the new Circuit Juniorwe
thank Harriet for taking up the mantle and wish her the very best
of luck.
On a much more sombre note, at this time we must record the
passing and remember Sir Nicholas Wall who, as the Family
Division Liaison Judge for the Northern Circuit, was held with great
affection on Circuit. Sir Nicholas will be greatly missed and our
thoughts are with his family and friends.
Finally, I hope you all had a wonderful Easter and the few days’
respite that comes with it.
See you in the summer.
In Brief
Needs You
Has your Chambers featured
in the Legal 500?
Do you have something to
share with other members of
the Circuit?
Have you taken part in a
specialist Bar event?
Have you participated in an
interesting or unusual case?
Do you have a new Tenant?
Have you raised funds for a
local charity?
Share your news with other
members of the Northern
Circuit.
All members’ contributions
to In Brief warmly
welcomed.
Please send your article (and
photos with captions where
appropriate) to the Editor,
Elliw Roberts
elliw.roberts@stjohnsbuildings.co.uk
Photographs should be
provided in the highest
resolution possible to ensure
good reproduction
Elliw Roberts
St Johns Buildings
Deadlines for 2017
10th July for August 2017
10th November for Dec 2017

CIRCUIT NEWS
Manchester Legal Awards 2017
Lincoln House Chambers were delighted with their Deputy Head of
Chambers Kate Blackwell QC’s, success in winning the ‘Barrister of
the Year’ award at the Manchester Legal Awards 2017. The award
follows an impressive year for Kate, most notably after leading the
prosecution of Adam Johnson (the ex-premiership and England
footballer) in March 2016, and successfully responding on behalf of
the Prosecution to his application for leave to appeal his conviction
and sentence in March 2017.
Upon receiving the award, Kate said “I was delighted to see that the
shortlist were all women and it is a step in the right direction. I think
that women can give so much to the profession; they have a sense
of empathy that really shines through, especially in sensitive cases”.
Director of Clerking, David Wright, commented that “It’s fantastic
to see Kate’s hard work and dedication to her clients, and the
profession, being recognised with such an award. She is a brilliant
barrister who gets great results with every case that she takes on.”
The Awards also saw Deans Court Chambers win the Chambers
Award. Craig Sephton QC, Head of Chambers commented: “We are
delighted and grateful to the Manchester Law Society for this award.
It’s a splendid occasion and a tribute to our selection procedures.
Over the years we have consistently produced great barristers, loyal
staff and clerks to get the best results. They make me proud to lead
the Chambers.”
Kate Blackwell QC with Jon Hainey, President of
Manchester Law Society and Tony Rollason of
Landmark
“Deans Court are delighted to have won the Barristers Chambers of
the Year award again. This was the third time we have won this
award in 5 years and represents a fantastic achievement that reflects
our standing in the market and the value we seek to add to our
Clients.
“Over the past year our members have been involved in many high
profile cases including Mary O’Rourke, who represented Dr Eva
Carneiro in her battle with Chelsea FC; Sophie Cartwright who is
instructed as junior counsel to The Grainger Inquiry; and Tim
Horlock and Paul Higgins who appeared in the Court of Appeal case
of Qader v Esure.
“We would particularly like to thank all our clients because without
their support this would not have been possible.”
Craig Sephton QC with Jon Hainey, President of
Manchester Law Society
Vulnerable Witness Training
Would all criminal practitioners on the Northern Circuit please
note it is anticipated that there will be a national roll-out of
Vulnerable Witness Training commencing in 2017. This will be
essential training for anyone practising in the criminal courts who
professes to be competent in witness handling. Whilst it represents
a sea-change in the approach to vulnerable witnesses, having
done the training, the essential skills are not novel, but a reminder
of best-practice. They are easily within the grasp of any criminal
practitioner who takes the art of advocacy seriously. The skills are,
in truth, an opportunity to iron out creases in performance and get
rid of bad habits. The focus is on asking the essential questions -
which must be prepared in advance - in a clear and simple way,
and understanding the witness’ needs.
The Northern Circuit has already put steps in place to galvanise
this training and garner support for the scheme. Further
announcements will be made shortly, including details of when,
where and how the training is to be facilitated and cascaded to
Circuit members.
If you would like any further information in the interim, please
contact either myself at Harrington Street Chambers in Liverpool
or Simeon Evans at St Johns Buildings.
Andrew Ford
7 Harrington Street
4 In Brief

On Thursday, 16 March 2017, the Midland Hotel in Manchester
hosted Women in the Law UK’s first event of 2017, which was as
ever both impressive and inspiring, as were the guests of honour: the
Rt. Hon Lord Neuberger, President of the Supreme Court
accompanied by Lady Neuberger.
CIRCUIT NEWS
Women Barristers and UKAWJs. Next years event is already being planned with to be even
better with rumours of Mrs Justice Andrews or the first female in the Supreme Court if once is
appointed.
Women in The Law UK, have another Until next time, resounding success
Sally Penni Barrister at Law Kenworthys Chambers Manchester.
with Be Bold for Change message Vice chair of on Association Diversity of Women Barristers from
NED and 50 Power List NWP 2017
President of the Supreme Court 16.03.2017 in Manchester.
The event was another resounding success for Women in the Law
UK. With guests being drawn from the judiciary, the Bar, solicitors
and legal academics, both men and women, the event was a sellout
with a healthy waiting list to boot; it was, indeed, the hottest ticket
in Manchester. As testament to that fact, many of the Circuit’s
judicial stars were out in force, including the Recorder of
Manchester, HHJ Stockdale; Mrs Justice Andrews; HHJ Henandez;
HHJ Manley; HHJ Goddard QC; HHJ Nicholls (Liverpool’s first
female judge in crime); HHJ Newton, Designated Family Judge for
Manchester; and Sir Mark Hedley. Many solicitors were in
attendance as well as special guests from the worlds of Commerce
and the Arts Industry.
Established in 2012 and now in its fifth year, Women in the Law UK
has enjoyed an impressive list of past speakers, which to date
includes Lady Hale of Richmond, Mrs Justice Cox DBE (President of
the Association of Women Barristers) and Lady Justice Hallett DBE.
On this occasion, it was Lord Neuberger’s turn and his Lordship
opted to speak on the importance of diversity in the judiciary, which
was followed by a question and answer session with the audience.
With a message in keeping with the theme for International
Women’s Day 2017 – be bold for change – the evening was hosted
by Sally Penni of Kenworthy’s Chambers, Vice-Chair of the
Association of Women Barristers. Music was provided by
Manchester Inspirational Voices (winners of the BBC Songs of Praise
Gospel Choir of the Year award in 2016), with additional
performances from Nigel Poole QC of Kings Chambers and Wayne
Ellington.
L-R Lisa Roberts QC Lincoln House Chambers,
The Rt. Hon. Lord Neuberger, Sir Mark Hedley and Sally Penni.
L-R Lisa Roberts QC Lincoln House Chambers and sponsors, The Rt.Hon. Lord Neuberger
Supreme Court, Sir Mark Hedley and Sally Penni.
3
The evening concluded with a raffle. That evening, a total of £1,068
was raised to be split between three charities: Breast Cancer Prevent,
Royal Free Hospital and the RMCH.
To find out more about upcoming events or to join Women in the
Sponsors from Close Brothers, The RT Hon Recorder of Manchester David Stockdale, Rebecca
Law UK, please email womeninthelaw2012@gmail.com. Next
year’s event is already being planned, with rumours circling evenDurrant L-R, Crowe HHJ whithall D Henandez, Clark, Tax Partner DJ guest Stuart, from Sally Industry, Penni, Elizabeth HHJ Portier L Newton, BNY Mellon,
now as to who the next guest speaker will be.
L-R, HHJ D Henandez, DJ Stuart, Sally Penni AWB, HHJ L Newton, Sir Mark Hedley, retired
Josephine Sir Fay Mark ex solicitor Hedley, now HHJ at Close D Brothers. Eaglestone, Abi Holt, Lincoln House
Judge D Eaglestone, Immigration Chambers Judge and Abi Lisa Holt Splaine, Lincoln House solicitor. and Lisa Splaine solicitor.
Until next time,
Sally Penni
Kenworthy’s Chambers
Photos by Bill McGloghlin
4
The Right Hon Lord Neuberger, HHJ Roddy and Sally Penni
The president, Lord Neuberger , HHJ Roddy and Sally Penni
In Brief 5

INTERVIEW
An Interview with HHJ Kushner QC
This spring the Northern Circuit bids farewell to a much-loved Judge and colleague on
both the Family and Criminal bench: Her Honour Judge Kushner QC. Amongst the first
family silks on Circuit, HHJ Kushner QC has been a leader in her field throughout her
career and was trailblazing until the very end. In Brief met with the Judge to find out
her response to those sentencing remarks and what retirement has in store for her…
In brief
Year of Call 1974
Year of Silk 1992
Year of appointment to the Circuit Bench 2000
Alma mater University of Liverpool
Who or what inspired you to a career in law?
My father was a Senior District Judge for 28 years and I always knew
that he would have loved me to become a lawyer but, initially, I was
going to study languages at university. That changed one day when,
as I was fiddling over some small translation point, an inspirational
teacher said to me “do you know, Lindsay, you’d make a very good
lawyer: you never give up and you have great attention to detail.” I
had always liked the idea of something practical and theoretical and,
from there, the idea to become a lawyer gelled so I went to Liverpool
to study law.
What would you have otherwise been, if not a lawyer?
I don’t have the faintest idea. It would have been nice to study
languages at university but, once the idea to become a lawyer was
in my head, that was it and it just felt right. Over the years I’ve had
students on work experience ask me about a career in law and I
always say to them: if something else will do, do it, but if you feel as
though nothing else will do, you must go for it and that’s what I did.
What interested you in family law?
hours. After that, whenever I was considering whether or not to
appeal, there was only one test I would apply: would I be able to
keep up my end in front of Ormrod LJ? I didn’t necessary have to
feel I would win but, if questioned, did I have answers? If I did, then
I would appeal. That test served me quite well.
I was a pupil to Charles Bloom, which was a lucky break, but when
I first started I did a little bit of everything (except for Landlord and
Tenant, which I tried to avoid!)
My first care case came in May 1975 and I remember it like it was
yesterday. I was for the parents who were Chinese and they gave
their evidence through an interpreter. When the father was giving
his evidence he was so emotional that he was crying, the interpreter
was crying and I could feel myself going too. Since then, of course,
I’ve heard the same evidence time and time again but, as it was my
first case, I was very moved by it.
I was very lucky in my second care case, Dame Joyanne Bracewell
QC had received instructions from Wigan Council and she came to
me and “Lindsay, you’ve been in a care case haven’t you?” and I
replied “well, yes, one…”, When I went back into my room later that
day there was a clip file on my desk with a note which read “you are
my junior in this case” and that was care case number two!
A few years later came all the wardship cases and I was in the High
Court a lot, even though I was very junior, so although I had started
in Chambers saying that I wasn’t going to do family just because I
was a woman, it just so happened that it suited me and so I did.
What were the highs and lows of your career at the Bar?
I’m sure there are plenty of lows but getting pasted in the Court of
Appeal was one! I was there appealing against an Adoption Order
and one of the Judges was Ormrod LJ, who savaged my case for
6 In Brief
As for highlights, being there at the beginning of the family care work
was quite something and also appearing in the House of Lords and
it going well. As a student, I dreamt of being in the House of Lords
when they were interested and debating something important. I’ve
had that and it was great.
What made you want to become a Judge?
Silk came first and, initially, it hadn’t been my intention to apply.
Joyanne sent a message through my pupil master telling me to apply,
so I did, and I got the letter to say that I had been successful on my
40th birthday. I was frantically busy, especially after the Children
Act 1989 came into force, and - in silk - every case you do is high
pressure. So after eight years, and having been to the House of Lords
twice as a junior and twice as a Leader, I thought it was the right time
to go just as now is the right time to retire.
During you career on the bench you sat in both Crime and Family,
how is life different for a Judge sitting in the Criminal Court and in
the Family Court?
Every Judge has their own, individual style and, in the Family Court,
I’m prepared not to be too formal if necessary. In the Criminal
Court, though, one has to be very careful because it’s in public, the
press can be there and there is a jury so you’re not making the
decision, you’re just delivering the material.
You’ve been in the national press recently following your sentencing
remarks in your last criminal case. Have you been surprised by the
press attention?

INTERVIEW
Yes. I knew the press were there and I thought it would perhaps
interest the Manchester Evening News but I did not expect phone
calls from family members in New Zealand, South Africa and
Australia telling me they had seen me on the news.
Although there has been a lot of negativity in the press, which I half
expected, on the whole the general reaction has been good. The
young woman, Megan, has since been on television to speak about
it. I was pleased that she said she didn’t feel she was criticised
because that was hugely important to me.
In the BBC interview she said that, because of her experiences, she
would not go through the trial process again. Do you think there is
a place for pre-recorded cross examination of victims of sexual
abuse?
Pre-recorded cross examination of children is being piloted in some
areas at the moment and, depending on how that goes, it may well
take off but it’s not without its difficulties. For example, in these
trials a lot of disclosure comes in quite late and things can change
on a pin head, so pre-recorded evidence causes difficulties in
dealing with that late disclosure.
If it is rolled out for children and that goes well then they may start
looking at it for adults too. Assuming all the disclosure issues are
addressed, and everything is there that would be there if the trial was
going ahead live, I have no difficulty in pre-recorded evidence.
Having said that, there are so many different aspects to these sexual
cases and the counter consideration, of course, is how we should
treat defendants and how to protect the falsely accused.
Are there any further comments that you wish to make about this
issue or do you feel that your remarks said it all?
I could go on for years about this but, for now, yes it said it all. It
sounds terribly trite but the object of it all was to make people think
a little bit, which I hope it has.
Manchester FLBA
The retirement of two popular judges, HHJ Raynor QC and HHJ Kushner
QC, was marked with an event at Manchester Civil Justice Centre on 6
April. Philip Raynor QC was a leading ancillary relief practitioner, who
initially sat on family and civil cases after his appointment to the Circuit
Bench; in later years he also sat on administrative matters in the
Divisional Court.
Lindsey Kushner QC specialised in all areas of family law at the Bar, with
a strong emphasis on complex family cases involving the welfare of
children. As a Circuit Judge she sat on crime and family cases.
Both judges will be missed by those who had the pleasure of appearing
before them. Each combined a keen intellect with a very “down to Earth”
and approachable style. HHJ Kushner QC would do all that she could to
ease the stress upon vulnerable parents in family cases on some
occasions leaving the bench to sit beside an anxious party to
proceedings, and then talking to them to assist the process of their giving
the best evidence they were able to. Always warm and good humoured,
her direct and sensible approach endeared her to professionals and
public alike.
In other news, members travelled to Dublin for the Four Jurisdictions
conference, where continuing education was interspersed with fine
dining and Irish dancing.
Child Concern, which brings together professionals working in family
law, has continued to provide training events on a regular basis,
including a day seminar on Recent Innovations in Family Justice and
Protection, at which the President of the Family Division, Sir James
Munby was the key note speaker. Please note that the Child Concern
Ball will take place at the Radisson Blu Edwardian hotel on 17 June 2017
and tickets are now on sale.
Samantha Birtles
18 St John Street
Looking back at the end of your career, what advice would you give
to someone starting their career at the Bar today?
If you need to do it, go for it. Being part of the Bar, and I still
consider myself a barrister, is something that, unless you are a
barrister, you will never be able to understand. It’s magic.
I regret that, through various governmental moves, the Bar has been
weakened - if not semi-destroyed - and I regret that there is a sharp
division between the publicly funded and the privately-paying work,
which has robbed us of quite a few people. It shouldn’t have to be
a vocation to do publicly funded work but it is.
What, if anything, will you miss about life on the bench?
The people: the lawyers are great, the staff here are fantastic and the
Judges I work alongside are people with whom I’ve enjoyed
professional and personal life with for decades. That’s very precious
and it’s been a tremendous ride.
HHJ Kushner QC and HHJ Raynor QC
Photo by Howard Barlow (www.howardbarlow.com)
What next?
Cooking, gardening and I’m going to learn new life skills. I’m
already good at clearing the drains but I would like to learn some
carpentry, plumbing and how to make an appointment at the
doctors!
Photo by Howard Barlow (www.howardbarlow.com)
In Brief 7

LAW UPDATE
Criminal Law Update
Tsekiri and DNA cases:
Reversing the burden?
Historically the Court of Appeal has shown a willingness to quash
convictions based solely on DNA evidence linking the defendant to the
offending Act. As recently as 2015 in the case of Bryon, a case without
anything more than a mixed DNA match for the defendant, it is clear that
the conviction would have been quashed but for the supporting bad
character evidence.
The recent case of Tsekiri highlights the Court's awareness of the
advances in DNA technology, although some may feel that it hints at
reversing the burden to the defendant, for him to explain where he was
at the time of the offence or as to how his DNA became present at the
scene of an offence.
In June 2016 the complainant in the Tsekiri case was subjected to a
robbery outside Wimbledon Park tube station. She left the station and
walked the short distance to her car, which was parked close to the
station. She entered into the driver's side of the vehicle and prepared to
drive away but, before she could do so, a man from outside the vehicle
opened the driver's door and robbed her of a gold necklace.
Swabs were taken from the exterior driver's door handle,which
undoubtably was touched by the offender in order to commit the
offence. A mixed DNA result was obtained and the examining scientist
concluded that the profile consisted of components relating to a single
major contributor and to at least one minor contributor. The DNA from
the major contributor was consistent with the DNA profile of the
appellant. The match probability was 1:1 billion.
The scientist could not say when the the DNA had been deposited, nor
could he identify the source of the DNA, such as blood or saliva. The
scientist even conceded that the deposit could have been due to
secondary transfer, i.e. the appellant having touched another person
who had then touched the exterior door handle. However, the scientist
considered that secondary transfer was unlikely given that the DNA in
question was the major contributor.
There was no other evidence linking the appellant to the offence. When
interviewed under caution he exercised his right to silence, and the
complainant failed to identify him during the course of an identification
procedure.
At the conclusion of the prosecution case there was a submission of no
case to answer on the basis that no reasonable jury properly directed
could convict on the available evidence. This submission was rejected
and the appellant was convicted.
On appeal, the Court of Appeal placed heavy emphasis on the recently
decided case of FNC and its conclusion that DNA that had been directly
deposited in the course of the commission of a crime by the offender,
and specifically a very high DNA match with the defendant, would be
sufficient without more to give rise to a case for the defendant to answer.
In placing this reliance on FNC, the Court rejected the approach taken
in Bryon in 2015 and noted that the techniques of DNA analysis have
improved markedly in the last decade, so what was insufficient scientific
evidence a decade ago will not necessarily be insufficient now.
The Court also stressed the importance of the fact that the DNA had been
left on an article at the scene of the crime before posing a number of
relevant questions:
1. Is there any evidence of some other explanation for the
presence of the defendant's DNA on the item other than
involvement in the crime?
2. Was the article apparently associated with the offence itself?
3. How readily moveable was the article in question?
While some may view this as the
Court of Appeal forcing the
defendant to provide an explanation
as to the possibility of secondary
transfer, the reality is that the Court
is simply acknowledging that testing
of DNA has advanced in recent years
and is now sufficient as evidence
alone to convict a defendant in
certain circumstances.
4. Is there evidence of some geographical association between
the offence and the offender?
5. In the case of a mixed profile, is the DNA profile that
matches the defendant the major contributor to the overall
DNA profile?
6. Is it more or less likely that the DNA profile attributable to the
defendant was deposited by primary or secondary transfer?
The Court was keen to stress that this list was not exhaustive but that
each case will depend on its own facts. The crucial point is that there is
no evidential or legal principle to prevent a case solely dependant on the
presence of a defendant's DNA profile on an article left at the scene of
a crime being considered by a jury.
It is question one that will give defence advocates the most cause for
concern. The Court of Appeal suggests that if in interview the defendant
gives an apparently plausible account of the presence of his DNA
profile, that might indicate that the prosecution had not raised a case to
answer. On the other hand, the total absence of any explanation would
leave the evidence of the defendant's DNA unexplained. Ultimately the
Court concluded that the absence of any explanation in such a case
would mean that there would be no material to undermine the
conclusion to be drawn from the DNA evidence.
Tactically, this is of significance as in cases of this nature a defendant
would consider not giving evidence and simply putting the prosecution
to proof. It is clear, however, that in the absence of an explanation in
interview and nothing by way of explanation in the defence statement,
this will not be sufficient to guarantee a successful submission at half
time as might previously have been the case.
While some may view this as the Court of Appeal forcing the defendant
to provide an explanation as to the possibility of secondary transfer, the
reality is that the Court is simply acknowledging that testing of DNA has
advanced in recent years and is now sufficient as evidence alone to
convict a defendant in certain circumstances.
Laura Nash
St Johns Buildings
8 In Brief

The Rule of Law or the Rule of Lawyers?
A reflection on the ‘Miller’ case
NEWS
In the December issue of ‘Counsel’ magazine the outgoing Chairman of
the Bar called for a defence of the Judiciary. This was in the aftermath
of media criticism of the High Court following its decision in the ‘Miller
case’ concerning whether the Government could trigger Article 50 to
leave the European Union following the Brexit referendum.
Subsequently I, like every other Barrister, received an email from the Bar
Council also stressing the Bar Councils defence of the Independence of
the Judiciary and the Rule of Law.
Whilst I certainly do not defend the media description of High Court
Judges as ‘Enemies of the People’, we in the legal profession do perhaps
need to recognise that the essence of the criticism was justified. In the
‘Miller’ case the Courts were overstepping their role and were interfering
in a political rather than a legal argument. The Rule of Law does not
mean the Rule of Lawyers and that means that the Judiciary should not
overreach their role and should respect the separation of powers and this
they failed to do in ‘Miller’.
Frankly, the argument as to whether or not the decisions in the Miller
case were right or not misses the point; the case should never have been
allowed to proceed in the first place. The decision whether the UK
should leave the EU was the supreme example of a Political decision and
the parties in the Miller case had no specific interest in that decision over
and above the interests of every other UK citizen. In R v Monopolies
and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763
Lord Donaldson MR memorably said that applications for Judicial
Review should be refused where an applicant had no specific personal
interest in the issue 'and was, in truth, no more than a meddlesome
busybody', a description that could well be held to apply to the
applicants in the Miller case. Unfortunately, the High Court in the Miller
case ignored Lord Donaldson’s wise words and permitted the Law to be
misused as a weapon in an essentially political argument, so turning
what was a political debate into Jarndyce v Jarndyce.
It is either naive or disingenuous to state that the Miller case merely
revolved around legal questions as if the judiciary and the Courts live in
an Olympian detachment from the affairs of mere mortals. The Courts
were being used as Political weapons by people whose only claim to a
hearing was that they could afford the legal costs. It was a corruption of
the political process which was permitted and facilitated by the Courts.
The principle of the separation of powers is fundamental to the exercise
of democracy but that requires each branch to respect its limitations as
well as its powers. For the judiciary to interfere in essentially Political
arguments is a breach of this principle. If there was a real argument
between Parliament and the Executive as to where the power lay to
execute Article 50 then that could and should have been dealt with by
Parliament exercising its powers to pass laws and if necessary to vote
down the Government. Where there is no conflict between Parliament
and Government then there is no justification for the Courts to interfere
at the arbitrary request of a non representative third party.
The judiciary are certainly not the ‘enemies of the people’ but they may
inadvertently become the enemies of the rule of law if they are seen to
overstep their proper role. The judiciary is the only part of Government
that is not subject to Democratic accountability and that answers to no
other authority. Unlike appointments to the US Federal Judiciary,
appointments to the UK Supreme Court are not subject to Parliamentary
approval. The Judges do however, need to accept that they cannot
expect to exercise American-style judicial power whilst retaining
traditional English Judicial deference. ‘Qui Custodet Ipsos Custodes’, is
an old question but it is one that needs to be asked in every generation;
mere platitudes about the rule of law and judicial independence will not
suffice. Either the judiciary controls itself and restrains from cases which
merely interfere in purely political arguments or the demands for control
of the judiciary will increase and that will have more implications for the
rule of law than merely unpleasant newspaper headlines.
Neil Addison
New Bailey Chambers
This article is written in a purely personal capacity
THE UK ASSOCIATION OF WOMEN JUDGES
**Dates for your diary**
ANNUAL CONFERENCE and
NOTICEOF AGM, BRISTOL
OUTREACH EVENT, BIRMINGHAM
Friday 12 May 2017
The UKAWJ has arranged outreach events in Portsmouth and Belfast
in previous years which have worked well. They give law students
an opportunity to hear from the UKAWJ President Baroness Hale,
followed by a "meet the judges" panel session. This year the outreach
event will be held at the Birmingham Civil Justice Centre, and we
will be followed by a dinner in the evening to promote the
association. This event will also provide an excellent opportunity for
members to meet with local judiciary, barristers, solicitors and
academics. The panel event will be followed by dinner at San
Carlos. For further details re venues, costs and membership/ booking
forms please contact the membership secretary:
DJ.Mathangi.Asokan@eJudiciary.net
Friday 03 November 2017
The UKAWJ theme of “Religion, Culture and the Law” continues
this year. Following the success of the 2016 Annual Conference in
Manchester, we will be considering these issues further across a
range of jurisdictions and subjects. This will be the focus of the
annual conference on Friday 03 November, which will be held in
Bristol. The AGM of the association will also take place on 03
November. The dinner will be held on Thursday 02 November.
Further information regarding the venues, speakers, costs and
booking forms for each event will be sent out in due course. But
please book the date in your diaries now!
We appreciate that the notice for the Outreach event is shorter than
for the Annual Conference - but we very much hope to see you at
one/ other - or both!
Christine Bispham
7 Harrington Street
In Brief 9

WITNESSES
The Fallible Witness:
recent cases on evidence
The way witness evidence is analysed as part of the trial process seems
to have changed dramatically over the last couple of years, with the
introduction of the ‘fundamental dishonesty’ regime in personal injury
claims – and its attendant impact on the recoverability of costs in those
cases – being substantially responsible. Judges are now routinely asked
to find that the evidence of a witness who failed to come up to proof is
‘fundamentally dishonest’ and effectively to tar the claim that relied on
it with the brush of fraud despite there being no pleading of fraud or any
exposition of the basis upon which the defendant makes the allegation
(in stark contrast to the position in commercial litigation).
This, I would suggest, is unfair in a large number of cases. There are
undoubtedly fraudulent claims, and there are undoubtedly witnesses
who are prepared to come to court to lie (whether the underlying claim
is fraudulent or not; the fact that a witness is lying to bolster their
chances of winning does not mean that the claim itself must necessarily
also be false). However, the apparent attempts of the insurance industry
to reduce the probity of witnesses to what amounts to a binary question
runs contrary to the recognition in cases decided in other courts that
questions of memory and recollection are extremely nuanced.
The nature of memory was commented upon by Leggatt J in his
judgment in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013]
EWHC 3560 (Comm). Leggatt J points out (at paragraphs 15-23) that the
limitations of human memory and the inherent biases of the litigation
process can have a powerful effect on the veracity of a witness even if
that witness is doing their very best to be truthful:
“An obvious difficulty which affects allegations and oral evidence based
on recollection of events which occurred several years ago is the
unreliability of human memory.
While everyone knows that memory is fallible, I do not believe that the
legal system has sufficiently absorbed the lessons of a century of
psychological research into the nature of memory and the unreliability
of eyewitness testimony. One of the most important lessons of such
research is that in everyday life we are not aware of the extent to which
our own and other people's memories are unreliable and believe our
memories to be more faithful than they are. Two common (and related)
errors are to suppose: (1) that the stronger and more vivid is our feeling
or experience of recollection, the more likely the recollection is to be
accurate; and (2) that the more confident another person is in their
recollection, the more likely their recollection is to be accurate.
Underlying both these errors is a faulty model of memory as a mental
record which is fixed at the time of experience of an event and then
fades (more or less slowly) over time…memory is especially unreliable
when it comes to recalling past beliefs. Our memories of past beliefs are
revised to make them more consistent with our present beliefs. Studies
have also shown that memory is particularly vulnerable to interference
and alteration when a person is presented with new information or
suggestions about an event in circumstances where his or her memory of
it is already weak due to the passage of time.
The process of civil litigation itself subjects the memories of witnesses to
powerful biases. The nature of litigation is such that witnesses often have
a stake in a particular version of events. This is obvious where the
witness is a party or has a tie of loyalty (such as an employment
relationship) to a party to the proceedings. Other, more subtle influences
include allegiances created by the process of preparing a witness
statement and of coming to court to give evidence for one side in the
dispute. A desire to assist, or at least not to prejudice, the party who has
called the witness or that party's lawyers, as well as a natural desire to
give a good impression in a public forum, can be significant motivating
forces.
Considerable interference with memory is also introduced in civil
litigation by the procedure of preparing for trial. A witness is asked to
make a statement, often (as in the present case) when a long time has
10 In Brief
already elapsed since the relevant events. The statement is usually
drafted for the witness by a lawyer who is inevitably conscious of the
significance for the issues in the case of what the witness does nor does
not say. The statement is made after the witness's memory has been
"refreshed" by reading documents. The documents considered often
include statements of case and other argumentative material as well as
documents which the witness did not see at the time or which came into
existence after the events which he or she is being asked to recall. The
statement may go through several iterations before it is finalised. Then,
usually months later, the witness will be asked to re-read his or her
statement and review documents again before giving evidence in court.
The effect of this process is to establish in the mind of the witness the
matters recorded in his or her own statement and other written material,
whether they be true or false, and to cause the witness's memory of
events to be based increasingly on this material and later interpretations
of it rather than on the original experience of the events.
It is not uncommon (and the present case was no exception) for
witnesses to be asked in cross-examination if they understand the
difference between recollection and reconstruction or whether their
evidence is a genuine recollection or a reconstruction of events. Such
questions are misguided in at least two ways. First, they erroneously
presuppose that there is a clear distinction between recollection and
reconstruction, when all remembering of distant events involves
reconstructive processes. Second, such questions disregard the fact that
such processes are largely unconscious and that the strength, vividness
and apparent authenticity of memories is not a reliable measure of their
truth.”
These points will be familiar to litigators (and Leggatt J’s observations
were made in the context of very substantial commercial litigation,
where it can probably be safely assumed that much time and care were
lavished on the preparation of the witness statements; the same cannot
be said of all cases) and demonstrates the dangers of relying on witness
evidence – even if it is apparently the product of a witness with a clear
recollection of the facts – when contradicted by contemporaneous
documentary evidence.
It also highlights the shortcomings of assessing the credibility of evidence
by reference to the confidence of its delivery. We have all heard (and
have probably all made) closing submissions which invite a judge to
prefer the evidence of a witness because the oral evidence was
‘consistent’ (with the witness statement containing the same version of
events) or that the witness was ‘adamant’ about his version of events.
Leggatt J’s comments highlight the problems that such superficial
analysis can mask; a witness’ testimony can be entirely consistent with
itself and confidently delivered, but inaccurate as a result of the type of
inbuilt biases described above (which are then exacerbated by the
litigation process). As he went on to say in his judgment in Gestmin:
“…the best approach for a judge to adopt in the trial of a commercial
case is, in my view, to place little if any reliance at all on witnesses'
recollections of what was said in meetings and conversations, and to
base factual findings on inferences drawn from the documentary
evidence and known or probable facts. This does not mean that oral
testimony serves no useful purpose – though its utility is often
disproportionate to its length. But its value lies largely, as I see it, in the
opportunity which cross-examination affords to subject the documentary
record to critical scrutiny and to gauge the personality, motivations and
working practices of a witness, rather than in testimony of what the
witness recalls of particular conversations and events.
Above all, it is important to avoid the fallacy of supposing that, because
a witness has confidence in his or her recollection and is honest,
evidence based on that recollection provides any reliable guide to the
truth.”
Leggatt J was, as aforesaid, speaking in the context of commercial

WITNESSES
litigation but it is suggested that the principles are of general application.
Mostyn J made similar observations (citing Gestmin, among other cases)
in a family law context in the recent case of Lachaux v Lachaux [2017]
EWHC 385 (Fam). In particular, his citing of the judgment of Lord
Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep
403, HL demonstrates that setting out principles for the assessment of
witness credibility has exercised judicial minds for some time:
“'Credibility' involves wider problems than mere 'demeanour' which is
mostly concerned with whether the witness appears to be telling the
truth as he now believes it to be. Credibility covers the following
problems. First, is the witness a truthful or untruthful person? Secondly,
is he, though a truthful person, telling something less than the truth on
this issue, or, though an untruthful person, telling the truth on this issue?
Thirdly, though he is a truthful person telling the truth as he sees it, did
he register the intentions of the conversation correctly and, if so, has his
memory correctly retained them? Also, has his recollection been
subsequently altered by unconscious bias or wishful thinking or by overmuch
discussion of it with others? Witnesses, especially those who are
emotional, who think that they are morally in the right, tend very easily
and unconsciously to conjure up a legal right that did not exist. It is a
truism, often used in accident cases, that with every day that passes the
memory becomes fainter and the imagination becomes more active.
For that reason, a witness, however honest, rarely persuades a Judge that
his present recollection is preferable to that which was taken down in
writing immediately after the accident occurred. Therefore,
contemporary documents are always of the utmost importance. And
lastly, although the honest witness believes he heard or saw this or that,
it is so improbable that it is on balance more likely that he was mistaken?
On this point it is essential that the balance of probability is put correctly
into the scales in weighing the credibility of a witness. And motive is one
aspect of probability. All these problems compendiously are entailed
when a Judge assesses the credibility of a witness; they are all part of one
judicial process. And in the process contemporary documents and
admitted or incontrovertible facts and probabilities must play their
proper part.”
Lord Bingham, who wrote extrajudicially on a number of topics, had this
to say on the subject:
“The main tests needed to determine whether a witness is lying or not
are, I think, the following, although their relative importance will vary
widely from case to case:
i. the consistency of the witness's evidence with what is agreed, or
clearly shown by other evidence, to have occurred;
ii. the internal consistency of the witness's evidence;
iii. consistency with what the witness has said or deposed on other
occasions;
iv. the credit of the witness in relation to matters not germane to the
litigation;
v. the demeanour of the witness.”
So where does this leave us? It is hardly an original observation to say
that witnesses often fail to come up to proof as a result of some or all of
the factors referred to above. The question may be asked, however, how
judges in the personal injury sphere are to be asked routinely to
conclude with confidence that a witness is ‘fundamentally dishonest’ if
they fail to come up to proof when giving evidence, when the
experiences of judges trying other types of cases suggest that such an
assessment is far from straightforward. As pointed out by Lord Pearce in
the passage above, a witness, “...though a truthful person, [may be]
telling something less than the truth on this issue, or, though an
untruthful person, [may be] telling the truth on this issue”.
That is not to say that it cannot be done. As stated by HHJ Hodge Q.C.
in Meadows v La Tasca Restaurants Ltd [2016] EW Misc B28 (CC), “if a
lie is told merely to bolster an honest claim or defence, then that will not
necessarily tell against the liar. But if the lie goes to the whole root of the
claim or defence, then it may well indicate that the claim or defence (as
the case may be) is itself fundamentally dishonest.” A claimant who
suppresses evidence of previous accidents or relevant pre-existing
medical conditions runs the risk of a finding that his dishonesty ‘goes to
the whole root’ of the claim.
It is not helpful, in conducting such an enquiry, that the practice of
personal injury litigation when it comes to questions of fraud and
dishonesty continues to diverge from other types of civil litigation
(where, as a matter of professional conduct, allegations of fraud must be
fully pleaded and properly particularised; the suggestion that it is
possible to raise ‘concerns’ in a defence that can then be the subject of
detailed cross-examination, as opposed to pleading a detailed fraud
allegation in a defence, would be met with incredulity in most
commercial cases). I understand that Manchester County Court is now
demanding that allegations of fundamental dishonesty be properly
pleaded; this is a step in the right direction and to be welcomed.
Be that as it may, it is suggested that the enthusiasm with which
defendants make applications concerning fundamental dishonesty based
on evidence which suffers from the type of problems identified in the
cases set out above is misplaced, and that the broad spectrum which
comprise the degrees of human recollection runs the risk of becoming
decidedly monochrome. It remains to be seen whether further reported
cases will help the jurisdiction to ‘bed down’ or whether the issue will
remain problematic in future.
Elis Gomer
St John’s Buildings
Iain Goldrein QC published in China
Iain Goldrein QC’s book “Ship Sale and Purchase” which was first
published in 1985 has now been published in China.
Iain comments “Following the success of the first edition, my two
co-editors Matt Hannaford and Paul Turner joined me and the book is
now in its 6th edition.”
After the publication of the latest edition, we were approached
formally from China, for the book to be translated officially into
Chinese, and it was so translated last year.
On the translation, Iain commernts “I am given to understand that less
than 50 English Law books have been translated into Chinese.
I confess to being quite moved by this, not least of all because the
book was written on the banks of the Mersey, and Liverpool is twinned
with Shanghai.”
In Brief 11

PI
Diary of #discountrate
26 February 2017: Looking for a bargain holiday, search #discountrate.
Cheap flights galore appear. Sadly no time to research this now, as must
advise on Part 36 offer.
27 February 2017: Search #discountrate. What is this? Twitter has gone
into meltdown. Where have the cheap flights gone? Apparently the Lord
Chancellor has gone bananas, insurers are sobbing into their cornflakes,
and lawyers are in a tweeting frenzy. There is an excitement in the world
of personal injury not known since the seismic “Whiplash Reforms”. That
was only four days ago, what on earth is going on?
Gerard McDermott QC tweets, “On a day like today #Twitter proves a great
resource to lawyers”. Decide to follow his advice. Apparently the discount
rate, which is to be applied when calculating multipliers for future loss
claims, will be reduced from 2.5% to -0.75%. This is the first change in 16
years.
So, in simple terms, a 20 year old male claimant who has a normal life
expectancy, and future care needs assessed at £100,000 per annum. Using
a 2.5% discount rate, the life multiplier was 32.10, which produced a lump
sum of £3,210,000. However, with a discount rate of -0.75%, the
multiplier is 88.96, producing a lump sum of £8,896,000. Little wonder
then that the Government has set aside around £6bn to cover the increased
cost of settling clinical negligence claims.
So does this mean that Claimants are receiving some kind of windfall?
Apparently not; the Lord Chancellor describes -0.75% as “the only legally
acceptable rate I can accept”.
28 February 2017: Spot a tweet, referring to Gordon Exall@CivilLawTweet
on “THE STEPS THAT NEED TO BE TAKEN”. Note to self; must tell client
to ignore that Part 36 Advice I gave two days ago, the one that stopped me
booking the bargain holiday. I retweet the tweet, and smile when I receive
notification that I too have been retweeted.
However not everyone is happy; the Law Society Gazette tweets; “Insurers
march on the Treasury to demand discount rate rethink.” Goodness I think,
why does the Lord Chancellor have such power over compensation
awards? Isn’t that a judicial task?
2 March 2017: My questions are answered when Sir Henry Brooke posts
a blog with a snazzy title; “The origins of the statutory discount rate for
lump sum personal injury awards”. He reflects on the Law Commission’s
proposals back in 1994, when they recommended the Courts take actuarial
evidence into account in the calculation of awards for settlements for future
losses. By doing so, Claimants who had suffered the most serious injuries
could be assured that their awards would be preserved for the future. The
Law Commission recommended that, “In determining the rate to be
expected from investment of the sum awarded, the Court shall ... ... take
into account the net return on an index-linked Government security ...”.
Sir Henry Brooke points out that had the Government followed that
recommendation, then “The Courts would have adopted seamlessly the
current net return available on a newly issued index-linked Government
security”. However, by the time the Damages Act 1996 came into force,
the Government had changed the relevant clause, providing instead that
the Court was to “take into account such rate of return (if any) as may from
time to time be prescribed by an Order made by the Lord Chancellor”. So
what was essentially a judicial function became vested in the Lord
Chancellor, and this remained so even after the constitutional reforms in
2005.
It was not until 2001 that the then Lord Chancellor fixed the Damages Act
rate at 2.5%, and this remained the rate until 2017. In fixing the rate, the
Lord Chancellor had regard to the principles held in Wells v Wells [1999]
1 AC 345, that fair compensation was 100% compensation. Claimants
should be assumed to be risk averse investors, and as such the assumed rate
of return was based upon the yield of index-linked Government securities
over a three year period, less tax.
Yet as financial markets changed, a cautious claimant that invested his
lump sum in a basket of index-linked Government stock became
guaranteed to get back less money than the stock cost to buy!
Nevertheless, successive Lord Chancellors failed to alter the prescribed
discount rate, and so there was a failure to ensure that compensation
remained a fair reflection of the returns to be expected on safe investments.
However, few expected such a seismic change in the discount rate, and it
is this that has caused the likes of Huw Evans, Director General of the
Association of British Insurers, to describe the new rate as “reckless in the
extreme”.
Nevertheless, it is the catastrophically injured claimants that have lost out
over the past years, as they have had to give credit for non-existent returns
on safe lump sum investments. However, perhaps the Lord Chancellor’s
delay is not surprising, given that the Government is itself a major
tortfeasor, and payer of damages.
4 March 2017: Twitter tells me that “Roberts V. Johnstone is dead”. Who
is this Roberts V. Johnstone and when is his funeral? However as I carefully
read John de Bono QC’s blog, I remind myself that this is the method by
which the Courts have been calculating the cost of future accommodation
for catastrophically injured claimants. This has been done by applying the
assumed rate of return to the additional capital sum required to purchase a
larger property, multiplied by the claimant’s life expectancy multiplier. It
was already proving to be a poor formula, given the rise of property rises
over recent years, resulting in claimants having to use funds otherwise
earmarked for pain and suffering, lost earnings or therapies. However now
we have a minus discount rate, any claimant continuing to use the RvJ
calculation will now be paying money back to the defendant! Alternatives
such as payment of rental or mortgage costs need to be considered.
However, the practicalities are thwarted with complications.
20 March 2017: It’s happening, “DR -0.75%” is officially in force!
21 March 2017: News of LMS v Lancashire Hospitals NHS Trust circulates.
The Guardian headline reads; “NHS Trust triples injury payout to £9.3m
under Controversial new rules”. I spot a tweet from Nigel Poole QC;
“Warning: This headline is surely wrong”. Despite his new appointment
as Head of Kings Chambers, there is no time to crack open the champagne.
Michael Redfern QC was Counsel for the claimant, and Nigel Poole QC
blogs, “I have it on very good authority that the DR change did indeed lead
to an increase in the lump sum from £1.32m to £2.12m – an increase of
£800,000… … not the £6m claimed by the Guardian. The agreed
periodical payments remain the same as previously agreed.”
So I ask myself, if the new discount rate is so attractive, why would any
claimant bother with PPOs? Well, according to Jennifer Stone of Nestor
Financial Group, PPOs give Claimants and their relatives financial peace of
mind that the award will indeed last for the life of the claimant. This is
important as there is always a chance that the Claimant will “outlive” their
perceived life expectancy. Further the claimant has security that their
award will in fact be able to meet the growing cost of care, whatever
happens in the financial markets.
30 March 2017: The promised consultation on the discount rate is
announced. The consultation, which is open until 11 May 2017 is to
consider whether the rate should in future be set by an independent body,
and whether the methodology (which assumes that claimants will invest
only in index-linked gilts) is appropriate for the future.
3 April 2017: Twitter is busy with discussion of the promised consultation.
I spot an excellent “Periscope” by Gerard McDermott QC, and another
blog by Sir Henry Brook, describing it as “the antithesis of the scholarly
process” that the Law Commission conducted over 25 years ago.
11 May 2017 and beyond: Following the consultation, the Government
intends to bring forward any necessary legislation. So just how long awards
will be subject to the -0.75% rate is anyone’s guess. However,
#discountrate will be sure to hear first!
Julie-Anne Luck
Kenworthys Chambers
12 In Brief

In Brief 13
CIRCUIT NEWS
As we are coming to the end of another year
of pupillage rounds it seemed appropriate to
make this request for help to Chambers and
practitioners on the Northern Circuit.
The Northern Circuit has always prided itself
on providing opportunities for ability and
potential, wherever it may come from, to
develop and thrive, recognising that our
individual Chambers, the Northern Circuit
and the Bar as a profession will only develop
if we recruit on this basis.
Kings Chambers has, for the last few years,
been working with the Dick Camplin
Education Trust to provide mini-pupillages
and mentors to the Trust’s Scholars who are
interested in considering a career at the
Bar/in the law.
The Scholars are all very able students from
Salford City College or Loreto Sixth Form
College who have overcome “significant
barriers to their education” and gained a
place on a degree course at University. The
Trust helps them by providing scholarships
to a value of £1000 (they have awarded in
excess of £200,000 worth of scholarships to
date) and provides valuable assistance in the
form of (a) help with any academic or
personal problems they may have whilst at
University, (b) meetings with the Trustees to
discuss their progress and hopes, (c) securing
of work placements (including financial
support to enable them to undertake the
same including the purchase of appropriate
clothing), (d) assistance with preparation for
work placements and interviews and (e)
exposing them to professional and social
situations they might not previously have
experienced.
At the end of this article I have included pen
pictures of some of the graduate Scholars
that the Trust has helped to date. They are all
people of the highest ability and
commitment who have succeeded because
someone recognised their ability and
potential and gave them the opportunity to
use the same. We need people like this to
have the opportunity to learn about and (if
they want) pursue a career at the Bar.
If you or your Chambers would be interested
in providing mini-pupillages or being a
mentor to a Scholar then please get in touch
with me at mharper@kingschambers.com
and I will put you in contact with the
Trustees.
Mark Harper QC
Kings Chambers
Can you help?
have the opportunity to learn about and (if they want) pursue a career at the Bar.
If you or your Chambers would be interested in providing mini-pupillages or be
mentor to a Scholar then please get in touch with me at mharper@kingschambers
and I will put you in contact with the Trustees.
Mark Harpe
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FEATURE
The Collected Ramblings of a
Disaffected Northern Circuiteer
Part 8: A Supreme Court Brexit Special
________________________________________
Picture the scene. It’s Monday morning, 5th December 2016,
Parliament Square. The Nation is gripped with Brexit fever. The
Press, who have already branded the Judiciary ‘The Enemies of the
People’, can smell blood and have encircled the Supreme Court in
scenes reminiscent of Custer’s last stand. Inside, batteries of lawyers
from the four corners of the Kingdom (including Wales) are jostling
for the best camera angles on Supreme Court TV. Upstairs, the man
they call ‘the Gaffer’, Dave Neuberger, has assembled a full squad
for a final pep-talk over breakfast in the judicial dining room. Poised
in a tight fitting 1970’s Gola England track suit with a towelling
headband, and looking like a DNA experiment involving Kevin
Keegan and John McEnroe, he tapped nervously at a white board
with eleven green magnets.
*****
“Right, listen up boys and girl. We’ve reached the business end of
the season. There are no easy games at this level. This is our cup
final. It’s a game of two halves. You need to give it 110% Don’t leave
anything in the locker. Let’s get out on the park and mix it up a bit.”
He paused, and looked around. No-one was taking the blindest bit
of notice.
Brenda was doing her knitting. Mancey was texting Arden LJ to see
what was for tea. Johnnie Three Brains (Sumption) was half way
through the fifth volume of The Hundred Years War. Clarkey was
puzzling over The Times crossword, with Nicko (Wilson) and
Hodgey helping him. Reedie had his head stuck in a cornflakes box
looking for the free gift. Tony (Hughes) and Robbo (Carnwath) were
having an arm wrestle, and Beekie (Kerr) was picking his nose. This
was the cream of the UK judiciary. Dave had a feeling they were
going to make an impact.
He looked down at the team sheets and rubbed his chin, wistfully.
“I’ve got some good news and some not so good news. The good
news is the Government’s leading with Wrightey”. This was met
with guffaws and jeers. Rather like Jamie Vardy, Jezza (the A-G) had
come from no-where and was probably going no-where. The bit in
the middle was living proof that truly remarkable things can happen,
even to Criminal Barristers from Birmingham. “He’ll probably just
read from a pre-prepared speech”. More guffaws and jeers.
“The not so good news is that Miller’s got Pannick up front.” There
was a sudden hush. Everyone stopped what they were doing and
looked up. No-one liked Pannick. He appeared in the Supreme
Court more often than they did and had a nasty habit of deflecting
questions with questions that none of them could answer. “Don’t
worry”, said Dave, trying to calm them, “We’ve got…” Dave looked
round the room, studying each of them intently. “…right, they’ve got
Pannick” he concluded, somewhat deflated. Without The Hoff, they
had been considerably outgunned for some time, and despite being
their most expensive signing, Johnnie Three Brains had been out of
sorts since joining from Chelsea, with more off days this season than
Claudio Ranieri. The mood was turning nasty.
Fortunately, they’d spent countless hours on the training ground on
set-pieces for moments like this. Dave reached into his Adidas kit
bag and pulled out a wad of documents. “Right, here’s something I
prepared earlier.” In a well-rehearsed routine he handed them each
a copy of his draft judgment.
*****
Many years ago, in the days of Hailsham of St Marylebone, and
MacKay of Clashfern, when the Law was, well, the Law, this kind of
thing would have been heretical, but in response to savage cuts in
judicial pay and pensions, the Supreme Court had hit upon a novel
principle of ‘Distributive Justice’, in which decision-making was
distributed around the panel, with everyone else agreeing. It
achieved the twin aims of proportionality and saving cost, and freed
the Justices to go off and do other things, like give lectures about the
important work being done by the Supreme Court. It also enabled
Dave to go recruiting for the Bench on a ticket ‘anyone can do it’.
*****
The mood lightened. Most of them went back to what they were
doing, but Reedie wasn’t happy. The diminutive Scotsman hauled
himself to his feet, all four foot eleven of him, although the
cornflakes box on his head did give him an advantage. “Och, we
canna all agree, surely?”
“Why ever not!” retorted the Gaffer, “And don’t call me Shirley!”
One of the downsides of having a half intelligent Judiciary was that
they were occasionally prone to spontaneous bursts of original
thinking. It was something the Judicial College had been
discouraging for years. He had a point though. An eleven: nil hatchet
job on the Government would likely lead to a further worsening of
pay and conditions. On the other hand, a split decision would make
it look like the Chief Justice and the Master of the Rolls, and that
other guy in the Divisional Court whose name no-one could ever
remember, didn’t know what they were doing. It was a conundrum
alright.
Dave reached into his kit bag once again and pulled out a handful
of red magnets. “Right, hands up for dissenters?”
*****
It would be churlish to suggest that the Supreme Court didn’t give
some thought, at least, to the outcome of the most constitutionally
significant appeal in legal history, but since none of them really
knew what Article 50 was, and no-one could be bothered to read the
20,000 pages of submissions that had been written about it, the
reality was, erm, ever so slightly different.
Dave drew them together for a final act of worship with one of
Julia’s pre-prepared prayers before leading them down the tunnel.
________________________________________
John Knott is currently away, but says he’ll be back.
14 In Brief

SPORT AND CROSSWORD
NORTHERN v NORTHERN-
EASTERN CIRCUIT CRICKET
RUSSELL CUP 2016
UPPERMILL CC
Sunday, 11th September
2016
This summer gone the Northern Circuit somehow played host to the
North-Eastern Circuit away in the West Riding of Yorkshire at
Uppermill CC on Sunday, 11th September. Uppermill, in the Marches
of the Northern Circuit, is the ancestral home of Peter Harthan, who
kindly with his family arranged for the fixture. Rather than boasting the
Harthan ancestral arms, the ground did have advertizing hoardings
with the name of the family firm. The Harthan name did not seem to
have made the trophy boards in the club house.
The North-Eastern Circuit batted first. So as to provide evenness to the
game, two Northern Circuit fieldsmen conspired to drop George
Hazel-Owram, skipper and best batsman of the North-East, off the
bowling of Nigel Power. The highlights were two fine stumpings by
Harthan, the hybrid cricket/golf clothing of Will Poole (as well as his
bowling) and the creamy hamstrings of Dickie Bennett, recently seen at
Whitewell, and before that last seen when carted off by ambulance in
Bath ten years ago. The variations in the Northern Circuit’s bowling
were startling developments from Last Man Standing and other short
formats of the game. The umpire, Peter Lilley, took little interest in
some of the wides and pea-rollers. His liberal if not libertarian
tolerance fitted the name. Depending upon the partisanship of the
newspapers reporting the match, the North-Eastern Circuit either
romped or stuttered to 180 in the 35 overs.
The Northern Circuit batting order was Adam Watkins, Martin Browne,
Nigel Power QC, Will Poole, David Tinkler, Peter Harthan (wkt),
Michael Armstrong, Tom Gosling, Jaime Hamilton, Richard Bennett,
and Charles Prior (c). The Harthan family teas weighed heavily on the
Circuit’s batsmen. Their individual scores should remain a mess secret,
but the highest score was that carded by Will Poole - 34. Liverpool
CC’s player of the year David Tinkler found touring and scoring a little
harder than he had hoped. What was especially heart-warming and
thrilling was the rearguard action of Jaime Hamilton, Tom Gosling and
Dickie Bennett batting for a draw, as the breathless hush in the Close
turned into a yawn with there being 50 to win. Not even a pitch
invasion by the local ram, possibly the mascot of the North-Eastern
Circuit, caused their concentration and determination to slip. They did
make it to 133 for 9, but did not realize that (despite all appearances) it
was in fact a limited-overs game.
So the North-Eastern Circuit easily won back the Russell Cup, which
we had so kindly brought over to them. My thanks to all the players
and to Peter Harthan and his family for organizing the fixture so well.
Next year the North-Eastern Circuit will hopefully be the host, probably
in its heartlands such as Blackpool. Anyone interested in playing next
year, please get in touch with Charles Prior at Atlantic Chambers, who
will send out details of pre-season training.
Charles Prior
Atlantic Chambers
Northern Circuit
v
Irish Bar
Rugby and Hockey
The Northern Circuit V Irish Bar Annual Rugby
match will take place in Dublin on 5-7 May and,
for the first time, the Circuit will also take a
ladies' hockey team to Dublin.
Attendance is encouraged from all members to
play rugby, hockey or shout encouragement from
the sidelines of both fields.
Please contact James Paterson
(Paterson@deanscourt.co.uk)
or Harriett Tighe (Tighe@deanscourt.co.uk)
at Deans Court to book on to the trip or
for further information.
Solution to the
Christmas Crossword
P A C K A G I N G C A R O B
I A R C I H O E
M A R T I N I F E R V E N T
P D A N T I D H
S H I N D I G B O S W E L L
E N O O E E
P A S D E D E U X M Y R R H
U V E E
B O M B S A M S T E R D A M
C O A N X E
R E D F L A G S A C K F U L
A E V E W I A I
W A S S A I L A Z T E C A N
L T G I M E T E
S K Y P E C H I L D H O O D