Let me add two more examples of likely unintended consequences:
1. Putting lawyers ‘at risk’ pre-permission will (in a world where judges apply the permission test in a notably inconsistent way) encourage cases to be brought much earlier than now (so that any concession by the defendant then triggers an entitlement to ‘inter partes’ costs) and in that way discouraging attempts to settle claims without the need for JR proceedings, potentially leading to more not fewer claims (certainly in some areas of JR work).
2. Borderline does not mean 50:50. It has a very specific meaning:
“borderline”, which means that the case is not “unclear” but that it is not possible, by reason of disputed law, fact or expert evidence, to—
(i) decide that the chance of obtaining a successful outcome is 50% or more; or
(ii) classify the prospects as poor [i.e. <50%]"
So many perfectly good (and important) JR claims (particularly those in new areas of law) are actually ‘borderline’. The result of removing ‘borderline’ cases will be (I predict) a dramatic increase in appeals to the Independent Funding Adjudicators and the Special Controls Review Committee; and in judicial reviews (which are necessarily held in secret) of their decisions.

And then two general concerns about the proposals:
1. The proposed reduction in payment rates risks a dramatic inequality of arms between claimants and the many and varied defendant public authorities (which can decide who to instruct and what to pay them).
2. Perhaps most fundamentally, these proposals are premised on a notion that judicial review is A BAD THING. Actually, judicial review – as a matter of practical reality not just a theoretical possibility – is vital to incentivising good public decision making well beyond the particular decisions which end up being challenged. The “Judge on Your Shoulder” (as described in the civil service training materials http://www.tsol.gov.uk/Publications/Scheme_Publications/judge.pdf) is a long-recognised and vital discipline to good decision-making by all public officials and bodies. That in turn surely contributes to (among other things) the wider economic wellbeing of the country (such as through encouraging international investment) which comes from operation of the rule of law. It is perhaps surprising that a Government which might be expected to be naturally concerned to ensure that the state behaves lawfully should be contemplating dramatically undermining all that; and to save relatively tiny amounts of money.

David

“Twenty years from now you will be more disappointed by the things you didn’t do, than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor, catch the trade winds in your sails. Explore. Dream. Discover.”

Wikiquote [http://en.wikiquote.org/wiki/Mark_Twain] seems unsure of the origin – I wonder if a Twain scholar might drop by and let us know either way…

ACAS do help, but many employees have never been in this situation before, and do not know how to go about opening negotiations. So as an employer, the staff handbook should contain a ‘what if I get sacked’ section.

I have found that regular no-holds-barred open appraisals help enormously, but of course some employers find this very unpleasant work. A failing employee should be asked if they agree with the negative aspects of their appraisal, which must be quite specific. Do they have trouble with their training, do they have external welfare issues? Are they in the wrong job? Do they have any grievances?

People are your most important and usually most expensive investment, so just as you maintain equipment, you should maintain staff. If it gets to tribunal, most cases will cost a winning employer as much in legal fees as if they had settled informally.

This is important, because, inevitably in this sort of advisory work, they rely on what their clients tell them and some of the relevant considerations are outside their expertise. For example, it may be highly relevant to the tax on a particular transaction whether the Spanish property being purchased is being bought at the market price. A London based Tax Barrister isn’t going to have any idea about the market price of a piece of Spanish property, so they can’t sensibly advise about that.

Instead they’ll say something like ‘You have told me that this property will be purchased at €5 million. If this is a market price the tax will be X, if not, the tax will be Y. I cannot advise you about the market price of Spanish property. You may want to take advice from a property assessor, who can give you an expert view.’

This sort of thing, it seems to me, is what Aiden James is talking about towards the end of his answers. A QC may have said that a scheme works in theory, but this is obviously meaningless if it hasn’t been implemented in the right way. Aiden has doubts about the way in which it’s been implemented, so he doesn’t advise his clients to use it.

Has the QC done anything wrong there? Presumably, she has been asked a legal question and given the answer. She hasn’t answered another question, which she hasn’t been asked. Aiden isn’t doubting her advice — he’s doubting what whoever is running the scheme did after her advice.

I can certainly see that this can raise ethical issues. Maybe the QC should insist on giving wider advice, not limited to the questions asked. I suppose there might be circumstances where this might be the case, where, for example, it’s clear that the QC is being asked an artificially constricted question with the intention to use the answer to mislead. But I’d have thought it would be rare that any lawyer could tell a client wanting advice on one aspect of a matter that they would have to insist on being instructed on a wider (and therefore more expensive) basis.

The questioning, but not I think the answers, seem to suggest something else. That the information being given to the QC is being deliberately restricted in order to get the right answer on the question being asked.

This is potentially an issue for the lawyer. Certainly, if they’re deliberately not asking relevant questions because they don’t want to know the answer, that may be a serious conduct issue. But that’s an serious accusation to make and there isn’t any evidence that it’s happening.

The alternative is that the QC is asking the right questions, but being mislead by the client. If that’s the case, I’m not sure what they’re expected to do. They can, and I suspect do, ask the client if they’re sure or suggest that what they’re saying sounds a bit implausible. And warn them that, if the facts on which they’re advising aren’t right, their advice is useless.

But should they refuse to advise if they suspect, but don’t know, that the client is lying to them? Should they investigate the client’s account? And, if they should investigate, how? Any of that would require a pretty fundamental re-write of the Code of Conduct.

In any event, I’m not sure that there is any evidence that clients are lying to their tax advisers in order to get the right advice either.

As someone who is absolutely careful, ethical and of reasonable (!) intelligence it worries me that jurors on complex trials do not understand things. Ultimately you’re making decisions about peoples’ lives and spending tax payers money.

However – for that time in court you are absolutely focused on the evidence. You are intensely debating the questions that the judge asks you to look at so you are very much obsessed with the material before you. I’d like to think that they had really thought about the matters in hand. Of course you need someone in the room that is going to bring people back on track if someone has gone off at a tangent. This happens. The chair has to say, no, these are the only items we need to discuss. No speculation, just the facts. The only way I could think of doing this was a professional reasonable person to decide when the jury is off track. But that sort of defeats the object of juries.

Ramblings of a confused ex-juror…

First, as I understand it, the accused was acquitted of the rape. That seems to suggest that, in respect of that charge, the jury were unsure, even though they convicted of the sexual assaults. It is, of course, impossible to know why they did so. But it does seem to indicate that the system worked robustly enough to permit the jury to discriminate between the different allegations and, as a result, a man was acquitted of a serious charge. Whilst the death of a vulnerable person – linked to the trial process or not – is always a matter of regret, it must be the case that so too is the conviction of an innocent man.

Secondly, it is now common ground that women who are raped do not behave as we would instinctively expect them to behave, or as they would expect to behave. The expert consensus is that human reactions to fear can lead to a submissive presentation, the aim being to preserve bodily health. Rape victims are frequently left distressed and perplexed by their own behaviour. It may be time for the Courts to permit evidence of such reactions, in much the way that other expert evidence is permitted. It would be difficult, because it would still have to be left to a jury to say whether that reaction was present in a particular case, but it may be an important tool to assist the jury to determine the truth. Given the jury’s verdict, it is impossible to say that this would have made a difference in this case and I do not make any such suggestion. Rather, if we are focussing on potential changes, this may be one to consider.

The question raised in this case is not that the victim was questioned harshly, but come on, how deluded/ill-informed was she? Commonsense tells you she only had to sit in on a rape trial herself to see how the line of questioning goes, even if the PLO failed to explain it to her.
So she was called a liar and a fantasist. So what? I’ve been called a paedophile, which is FAR FAR worse, even more so when you’re innocent, yet I haven’t killed myself.

I also question the logic of bringing a case in which the sole complainant is so fragile.
The case should have been shelved until such time as she was a stronger person, or had had more information to hand so that this wouldn’t have come as the huge shock it did, or should have depended also on the testimony of the other victims in this case.
Blaming the Barrister or the questioning is a knee-jerk reaction, not a logical one.

I would add that I’ve been through the justice system, and found it to be thoroughly wanting. Despite my accuser being caught lying in court on days 1 and 2, and shown to be lying, the jury disregarded the lack of evidence and convicted me of something I am innocent of, and it’s destroyed my life as a result. I’m only here because I have a good family, but it’s not without also relying heavily on psychiatrists and antidepressants.
The media in this country uses every single day to publish reports and nurture bad feeling towards anyone unlucky enough to be accused of any sort of sexual offence, to the point where it’s virtually impossible to have a jury which doesn’t consist of already-biased bigots.
As I found.
You cannot expect a just trial if the jury merely disregard the evidence and adjudge with their preconceptions.
The entire system needs an overhaul, not just for the victims, but for everyone. It’s not just accusers who accord the title “victims” of this farce.

Sexual offences and historical sexual offences particularly, require virtually no burden of proof other than the “victim’s” word, unlike just about every other offence on the lawbook.
So, continue questioning, probing and testing the complainant’s validity.
I feel for this particular complainant, a lot more was going on to cause her to take her own life, as most don’t.
And for the cries that she should have received counselling, that’s what Victim Support are there for.