If we can’t keep them out of the court room…

There’s an interesting judgment involving two litigants in person just been published. Sir Alan Ward’s opening paragraphs have garnered a lot of attention:

1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.
2. What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.
3. My second concern is that the case shows it is not possible to shift intransigent parties off the trial track onto the parallel track of mediation. Both tracks are intended to meet the modern day demands of civil justice. The raison d’être (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation. Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey v Milton Keynes General NMS Trust [2004] EWCA Civ 576, [2004] 1 WLR 3002, for which I am partly responsible, where at [9] in the judgment of the Court (Laws and Dyson LJJ and myself), Dyson LJ said:

   “It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.”
   

Was this observation obiter? Some have argued that it was. Was it wrong for us to have been persuaded by the silky eloquence of the éminence grise for the ECHR, Lord Lester of Herne Hill QC, to place reliance on Deweer v Belgium (1980) 2 EHRR 439? See some extra-judicial observations of Sir Anthony Clarke, The Future of Civil Mediations, (2008) 74 Arbitration 4 which suggests that we were wrong. Does CPR 26.4(2)(b) allow the court of its own initiative at any time, not just at the time of allocation, to direct a stay for mediation to be attempted, with the warning of the costs consequences, which Halsey did spell out and which should be rigorously applied, for unreasonably refusing to agree to ADR? Is a stay really “an unacceptable obstruction” to the parties right of access to the court if they have to wait a while before being allowed across the court’s threshold? Perhaps some bold judge will accede to an invitation to rule on these questions so that the court can have another look at Halsey in the light of the past 10 years of developments in this field.

The implications are fairly clear in so far as it is a critique of government policy. The question I want to focus on is, what happens next? It may be that judicial resistance of this kind and any research into the aftermath*may lead the government to rethink and refund legal aid. I am doubtful of that but it is not beyond the bounds of possibility. More likely, MoJ/HMCS might rethink how courts are staffed and supported, but I am not very optimistic about that, save perhaps some marginal changes as regards self help types of support. Quite a lot of beneficial work could be done here, but I imagine it will occur in a piecemeal and underfunded way, at least in the short term.

Another way of seeing this is that judges are undergoing a process of potentially profound change. They are in the process of both railing against and learning to accept the increasing presence of litigants in person within the courtroom. Change management fetishists will recognise these stages in the process. Step one, perhaps closest to denial, is persuade the government to refund legal aid. Step two is to suggest an alternative that probably won’t work (consider compulsory mediation as an alternative – as Sir Alan’s remarks might imply). Compulsory mediation is not a wholly flawed idea, but I’d suggest it has more demerits than merits (see in particular my colleague Hazel Genn’s research). Step three is adapt. An interesting point noted in Sir Alan’s judgment is that the first instance judge in this case did do so: “He struggled manfully, patiently, politely, carefully and conscientiously.” And then he adds, “Many may not have done so.”

An interesting question raised by these last six words is what would have happened in cases where the judge refuses to engage? A further question is whether the failure to do so is, or will remain, an acceptable approach for judges in the future? Let me not understatethe perils of engagement. Litigants in person present a significant set of challenges to any judge. ‘Reaching over the bench’ to assist is not an activity without perils. However, it may be essential to achieve any semblance of just resolution. It may also tend towards parties (particularly represented parties) questioning the impartiality of the process. It is difficult to see how judges can model their approach on an entirely passive arbiter model. Many, especially district judges I would imagine, manage this balance every day. Judges are having to develop new approaches to hearings. Courts are mixing – of necessity – adversarial and inquisitorial approaches. I do not celebrate the change (though it has some advantages to be held in mind amidst all the anxieties) but there will come a need to accept, adapt and understand the implications of this change for judicial practice; court process; lawyers ethics; and, the proper administration of justice.

 

*I should declare an interest as a member of a team looking at self represented litigants litigants in person in the family courts looking at what is happening now.

Exceptionalism and the Cab Rank Rule

With some trepidation I step into the hornets’ nest that is the Cab Rank Rule debate. It is a debate littered with ironic parenthesis from professional bodies; a mutually assured contempt of insider or outsider depending on which tent one is within; the correction of split infinitives (sic) and, horror of horror, incorrectly positioned footnotes.* Okay, some of those things are not important. Let’s cut to the substance.

Let me start by saying that in important respects I agree with the main thrusts of the substantive arguments presented by the Bar. Firstly, I tend to agree that the rule does no harm. Secondly, I tend to the view that it probably does some good. (See here for the contribution via the BSB and here for the Bar Council paper). I agree that there may be some occasions where a client with an unappealing or unpopular case can be helped by a cab rank rule. I suspect that the cab rank rule may or does discourage barristers from declining to accept the instructions of such clients on occasion. I agree also that this would be difficult to prove or disprove from disciplinary data. I think the economics of infamy would tend to mean a lawyers’ practice was not harmed by representing odious clients (that the publicity from representing unpopular clients may improve a lawyer’s client base rather than damage it), but I think the risk of odious clients not getting representation is sufficiently – if rarely – present to be meaningful and to justify the rule.

Similarly, the claims that the cab rank rule can be, and is sometimes, used to prevent big clients ‘scooping the pool’ are not to be sniffed at. That is, imagine I (a bank) instruct you on matter A to make sure I get all the good banking lawyers advising me and then you get instructions to sue me from a depositor on matter B. You might be able to resist my complaints on the basis of the cab rank rule. I suspect that plenty of practitioners specialise in one side of the dispute or the other; my economic power means you would be taking a risk with the future of your practice in your hands; and my objections on confidentiality would have to be given much thought, meaning this happens rather rarely, but let that pass. Rarely does not mean never and rarely in the absence of harm is probably good enough to maintain the rule, or something like it.

I also agree with the argument that the cab rank rule provides something of a prophylactic when a barrister meets public hostility for representing a Levi Bellfield or for cross-examining a Frances Andrade. It is true that there is already a rule that the barrister fearlessly represents their client which covers the point and, of course the cab rank rule does not legitimise improper defence behaviour; but I see the rule has a useful – albeit somewhat misleading- explanatory power with the public.

I am not sure a lot is gained by considering whether or not the rule is “always observed” or “is regularly breached”. Much is made of the “unfounded” nature of the claims that it is regularly breached; but both sides of the argument lack persuasive evidence on the point. Breach is too unobservable to be truly measurable. Neither researcher, nor solicitor, nor senior member of the Bar nor judge can truly know what is happening in this regard. It is also a legitimate and rather too swiftly dismissed point that the exceptions to the Cab Rank Rule (both formal and pragmatic) are wide enough to permit any reasonably competent barrister to get out of a cab rank brief should they want to without breaching the rule save within the confines of their own conscience. Equally, the obverse is true: the rule supports, with diminishing symbolism (see below), those that wish to hold to ancient values which the rule supports.

This brings me onto my real beef with the way the cab rank rule is used. This returns us to the position with the exceptions. I am not going to deal with all of them. I am going to “hand-pick” [n.b. parenthetical emphasis probably indicative of some sinister bias on my part] three.

Firstly, let me turn to legal aid. Most criminal legal aid cases are conducted on graduated fees including the kinds mentioned in the Bar Standard’s press release on today’s report. Graduated fee cases can be turned down on the basis that the fee is not a proper fee (if indeed it is not a reasonable fee). This exception to the traditional way the Cab Rank Rule had operated for legal aid cases was permitted as part of the bar’s understandable concern that the then Government was cutting legal aid too much. Offending their properly cherished belief in access to justice, the Bar took the view that it should extend that erosion by weakening the Cab Rank Rule. The justification is that legal aid fees cannot be deemed as proper fees and so barristers could be free to turn them down in appropriate circumstances. What this really means in practice, I suspect (if it has any impact at all), is this: criminal defence practitioners with economically healthier practices can turn down work on the basis that it is not as remunerative as other work by arguing the fee is not a proper fee (or more likely finding some other excuse). This may mean (I speculate) that better barristers find it easier to turn down cases in good conscience. The idea that a legally aided defendant can have the barrister of their choice is formally weakened by both legal aid cuts and the weakening of the cab rank rule (I say ‘formally’ because I do not know whether this is really happening in practice). The more ethical approach, although it is easy for me to sit here and type this not having to eat what I kill in terms of fees, would be to say: if you take legal aid cases you are bound by the cab rank rule and cannot assert that fees in some cases are not proper fees. The Bar chose not to say that. The Cab Rank Rule does not look so cherished as a result.

The second example is Direct Access. My understanding is that the Cab Rank Rule does not apply to such cases. I do not understand why not. If a barrister decides to offer direct access and the case does not fall within one of the existing exceptions to the Cab Rank Rule then why not require them to take it on? If the Cab Rank rule maintains its relevance to the rule of law, why not here? Indeed, direct access cases may be those where the need for a cab rank rule is most acute. Let us follow the logic of a position excluding direct access clients. Those who want or need the benefit of the cab rank rule would always have to first get professional representation. This would be (usually) from a solicitor not operating under the cab rank rule before getting representation from an advocate operating under the Cab Rank Rule. That rather undermines the case that a Cab Rank rule is necessary in the first place. The moral virtue of the Cab Rank rule appears to be contingent on those who do not have the rule. Perhaps, and I emphasise I say this tongue in cheek, only barristers need principles.

My third example is the way in which the Cab Rank Rule appears to be being used as bargaining chip in arguments about standard terms of business. If I have understood it correctly, the current proposal is that those clients of solicitors who do not agree to standard terms set out by the Bar will be denied the benefits of the Cab Rank Rule. This is odd on a number of levels. Firstly, it seems to be a rather disproportionate response. If a solicitor proposes business on unreasonable terms it would be within the right of the Barrister to turn down the case on the basis that it was not a reasonable fee (or if I am wrong in that an exception could be drafted to cover it which is more proportionate than the blanket exclusion of the rule). Equally, one imagines (indeed has observed) some head scratching bemusement amongst solicitors as to why they or their clients should give two hoots. In this sense the Bar threatens to remove cab rank protection when it is only they who imagine it is a significant protection.

The point about each of these exceptions is that on occasions when the Bar is faced with something it does not like it holds up the Cab Rank Rule as a sign of its own virtue and diminishes it in a sort of ritual sacrifice. It is a kind of conversation with itself that narrows the Cab Rank Rule and erodes its symbolic power.  A power with an effect that is most keenly felt, if it is felt at all, within Bar’s own conscience. Maybe, if the Bar really believes in the Rule, it should seek to reverse that trend and rethink how they deal with exceptions. If they do not do so, they can expect some scepticism when they emphasise the Cab Rank Rule as a signal of significant virtue.

*The author acknowledges that only he and an assorted, somewhat strange, band of publishers and law librarians give tuppence halfpenny for this.

Have lawyers’ hop on board for improved performance?

A fascinating U.S. study by Charles Whitehead, Lubomir Litov and Simone Lepe has suggested that having lawyers as non-executive directors may improve corporate governance; increase the value of those companies and their ability to borrow.

Increased litigation and regulation alongside a perception of increased risk appears to be driving an increase in lawyer participation at board level. In the US at least, lawyer-directors they are often outside directors. The study models empirical evidence to suggest companies with lawyer-directors may reduce the risk-appetite of CEOs by realigning the CEO’s remuneration incentives to increase pay but reduce risk appetite. Risk-taking behaviour by those Companies is also claimed to reduce. Interestingly, “lawyer-directors who are insiders (for example, lawyer-CEOs who are also directors) are more likely to reduce corporate risk than outside lawyer-directors”. The same is true where it is a lawyer director who chairs the risk management committee or who is the Chief Financial Officer.

Risk is measured through insolvency risk and ; volatility. Interestingly, where there were lawyer-directors litigation (e.g. patent litigation) seemed to reduce other risk measures, suggesting some litigation had benefit to the client beyond the outcome of the litigation itself. Indeed, patent litigation increased the value of the company. Even where such litigation posed risks to the company the risks posed by accounting malpractice, securities and class action litigation reduced where there were lawyer directors. The reduction in risk and increased financial stability was linked to reduce borrowing costs and higher leverage.

It is worth quoting the summary of key findings on litigation risk:

• Lawyer-directors increase the effect of patent litigation on firm value by 13.2 percent.
  
• Accounting malpractice litigation reduces firm value, but the result is reversed when there is a lawyer-director. In that case, there is a 308 percent increase in the effect of accounting malpractice litigation on firm value compared to when no lawyer is on the board.
  
• Securities law and class action litigation reduces firm value, but the result is also reversed when there is a lawyer-director. In that case, there is an almost 155 percent and 65 percent increase in the effect of such litigation on firm value compared to when no lawyer is on the board.
  

Our results tell us is that, on average, a lawyer-director increases firm value by 9.5 percent, an increase that rises to 10.2 percent when the lawyer-director is also a corporate officer. She does so primarily through her effect on CEO compensation and litigation, both of which cause a reduction in firm risk-taking to more efficient levels as indicated by the rise in Tobin’s Q. Her influence on board structure and takeover protections may also add to firm value. The influence of a lawyer-director is even greater if she has a prominent position on the board.

The authors suggest that it is not litigation generally that is the source of improvement but a more general improvement in governance that results from lawyers on boards.

Reasonable Excuse: Opining on Tax Avoidance

Lawyers have started to draw fire for their involvement in tax avoidance schemes. The Public Accounts Committee, chaired by Margaret Hodge, has issued a report which raises a number of concerns:

“Those who promote a tax avoidance scheme are required to notify HMRC of the scheme to comply with its disclosure regime. This has allowed HMRC to act quickly to close some schemes down. However, HMRC does not know how much avoidance is not disclosed but should be and has only issued 11 penalties for non-disclosure of a scheme. A small number of promoters appear determined to avoid disclosure and refuse to engage with HMRC. It is alarming that some QCs’ opinions are being used by promoters as a “reasonable excuse” for non-disclosure which prevents HMRC from applying a penalty.”

The report appears rather light on why the process is alarming. One passage of evidence caught my eye, however, as a possible explanation. Rather than seek to describe the nature of the witnesses business, let me quote the opening passage of his evidence to the Committee:

Aiden James: Yes, sure. First, I would like to thank the Committee for allowing me to join in on the debate on tax avoidance. My business is essentially set up to provide an independent review of tax avoidance structures in the market. We particularly specialise in income tax avoidance.

Q2 Chair: So you market yourselves as a tax avoidance business. That is your business model. You are in the business of avoiding tax?

Aiden James: Yes.

It is the following passage which is of special interest:

Q69 Mr Bacon: I want to ask you about the legal advice. The provider—the creator—has already taken legal advice and got an opinion from a QC before you look at it, but you are saying that, in some of those cases, you look at it and say, “We don’t think that that will work” so you do not introduce it.

Aiden James: Yes. Some structures rely on legislation that includes an avoidance motive test.

Q70 Mr Bacon: In so doing, you are essentially doubting the worth of the opinion of the QC, who backed the scheme, aren’t you?

Aiden James: A QC can only look at what is given to him to make that conclusion.

Q71 Mr Bacon: Do you think that the providers sometimes do not provide the full information, get the rubber stamp from the QC and then go out and market the scheme that contains things that the QC didn’t know about?

Aiden James: There may be certain assumptions that the QC works upon.

Q72 Mr Bacon: That turn out not to be correct?

Aiden James: It then becomes a matter of do you accept those assumptions or don’t you.

Q73 Mr Bacon: Or were you given the full information. Do you think that QCs are sometimes not given the full information? If they were doing their job, they would ask for it, wouldn’t they?

Aiden James: If there is an avoidance purpose test in the legislation, you are expecting there to be a commercial aspect within that structure. Does it need to be 5% commercial? Does it need to be 100% commercial? The QC is not going to give an opinion on whether he views something as being commercial or not. We would much prefer to promote something that does not have that level of subjectivity. Either it technically works or it does not.

Q74 Mr Bacon: Do you seek, do you obtain, your own independent legal advice on the worth of a scheme that some provider has created and had tested and looked at by a QC? Do you then go to a lawyer and ask separately what your—

Aiden James: We have resources within the team to do that.

Q75 Mr Bacon: But you do not go out and get a silk’s opinion.

Aiden James: I am trying to think of a situation where we may have done. Usually—

Q76 Mr Bacon: So what do you have—an in-house lawyer?

Aiden James: Yes, various staff.

The question of whether opinions have been given when questions about the basis of such schemes should be asked is not answered. That unanswered question raises a suspicion that some of the opinions given are not of the requisite quality be that through omission of the lawyers, failings of the client, or both. Mr James’ may not be in a position to answer the question. It is something which may bear investigation. If a tax adviser gets advice which it relies upon as not requiring disclosure, that advice is unlikely to be scrutinised. Similarly, any failing on the part of a barrister to ask relevant questions (if such a thing occurs) is unlikely to be scrutinised either. Yet, the reputation of the Bar is prayed in aid of the legality of the schemes where advice may have been given on hand-picked versions of the facts.

The standard and proper response to complaints about tax avoidance given by lawyers is that tax avoidance is lawful but evasion is not. In fact, the lawfulness of a particular tax scheme is often a matter of legitimate debate. Reporting and scrutiny mechanisms exist to ensure that debate is had. If it is right that tax advisers depend on legal opinions to inhibit the disclosure or, and scrutiny of those schemes, then it is vital that those opinions are given are of impeccable quality and independence. Lawyers in such circumstances are not simply acting as advocates of their client interests but as guardians of the rule of law. Their latter obligations are paramount; particularly in these circumstances. We do not know whether the problems outlined at in this evidence are in fact made out. We do know that questions have been asked and appear to remain unanswered. The SRA have signalled an intent to look carefully at solicitor involvement in tax avoidance schemes. Perhaps the Bar Standards Board should do the same.

Lawfare: when can barristers opine in public?

A joint opinion from three of the nation’s leading Silks in support of the part of the Press’ campaign the Government’s “interesting” approach to implementation of Leveson has garnered a lot of press attention. It is not an unusual approach. I have seen it reasonably frequently in relation to legal regulatory battles. I am told (HT Adam Wagner) it has been common in battles around legal equal marriage.

That question in broad terms is this: if expressing an opinion in relation to anticipated litigation is forbidden why is giving an opinion, which is then publicised in this way, not?

The relevant Bar code of Conduct rules state this:

709.1 A barrister must not in relation to any anticipated or current proceedings or mediation in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings.

709.2 Paragraph 709.1 shall not prevent the expression of such an opinion on an issue in an educational or academic context.

This situation appears to fall between these two stools; though there is no doubt in my mind which of the two situations it is closer to. It might even be argued that litigation is anticipated in relation to any attempt to implement Leveson; though I don’t think I’d like to make that argument just yet. A general sense that litigation is inevitable is not the same as anticipating litigation on this point. The advice is framed as being in the matter of proposed legislation (one might say anticipated, though I’d bet litigation is more likely than this particular piece of legislation).

The Opinion reads almost without qualification (I quote the bit where they come closest to circumspection). I do not know whether the Government’s position is so outrageous as to merit this; but I did wonder if a more detailed opinion lay behind it. The central point seems to be this in relation to the introduction of exemplary damages:

Whilst Parliament is capable of departing from the accumulated wisdom of twelve Law Lords, it should be cautious about doing so. Further, even if Parliament did reject the wisdom of the common law, the Strasbourg court would in our view consider that the touchstone of “outrageous” conduct lacked the legal certainty required before a measure which interferes with freedom of expression under Article 10(1) of the Convention can be said to be “prescribed by law” and capable of justification under Article 10(2).

I’m not tempted to engage in detailed debate on the point but it is worth saying, because it is rather topical, that outrageous, dishonest, reckless, beyond reasonable doubt – the law is littered with phrases of uncertainty in which we necessarily put our faith (see yesterday’s post). And in broad terms, I have some sympathy with many of the arguments made in the opinion, but they are made with a force which strikes me as advocacy rather opinion (e.g. saying the discrimination in application of exemplary damages was impossible to justify seemed to me to be overreaching a little – but I may be wrong).

In any event my concern is really with whether barristerial opinion should be used in this way at all and what that means for the Bar’s other media comment rules. I do not know whether the Silks involved knew this was about to happen, though I can guess. I do not know whether they would feel that, having opined in such terms and for such purposes, they should not be instructed on any litigation because they will then have more plainly sailed close to the existing rules. It’s a minor point perhaps also, but their opinion does not disclose who instructed them (most people know already I suppose).

This problem, if indeed it is a problem, is not confined to such openness. It has been described to me as ‘Lawfare’ (HT Stewart Murray) . There is the potential for lawyerly tools to be applied outside the contexts for which they are appropriate. On one level the document is just an opinion; but it has been released with into a broader scheme of meaning. In reality, however eminent, we should not pay too much heed to the people or to their headline opinion but to their reasoning and the counter-reasoning as and when it comes. Lawyers should also be mindful of the consequences of how their opinions are interpreted and used, but that is an issue for another day. There are other interesting examples. I have been told by one barrister that the former editor of a leading practitioner text (close to a lawyer’s Bible actually) told him Silks sent him (the Editor) unsolicited papers hoping they’d be included as editorial before upcoming cases. It is one thing to opine on the law. It is another to try and stack the deck so that the law appears only to lean your way.

Is the trouble with juries, juries?

Whilst I was otherwise engaged, the media and blogosphere exploded yesterday with fallout from the jury discharge in the Vicky Pryce case. The Judge’s remarks that the jury had displayed, “absolutely fundamental deficits in understanding” predictably took centre stage. The implication was that it was the Jury’s fault. Also predictably, protagonists drew battle lines as to whether trial by jury was a busted flush or not.

I think that is drawing the wrong line. A much more interesting set of questions is raised about how judges direct juries and what we know about how juries take decisions. These points lead me to agree very strongly with Lord Woolf when he says that there is a good deal of sense in more research being conducted into juries to help judges better advise jurors.

I was prompted to write the blog by some comments on twitter including those from two QCs, but let me first set out some of the background. The judge’s comments follow on the jury asking several questions at the end of several days deliberation (HT Andrew Keogh).

Q1. You have defined the defence of marital coercion on page 5 of the jury bundle and also explained what does not fall within the definition by way of examples. Please expand on the definition, provide examples of what may fall within the defence, specifically ‘will was overborne’ and does the defence require violence or physical threat?

Answer: “The pressure applied by the husband need not involve violence or physical threats. The law requires that a husband was present and coercion was to such an extent that she was impelled to commit an offence because she truly believed she had no real choice but to do so.”

Q2. In the scenario that the defendant may be guilty but there may not be enough evidence provided by the prosecution at the material time when she signed the notice of intent to prosecute to feel sure beyond reasonable doubt, what should the verdict be, not guilty or unable or not safe to bring a verdict?

Answer: “Turning to page three of my written directions, the direction is combining the burden and standard of proof with the need for a majority verdict. If, having carefully considered all of the evidence, at least 10 of you feel sure of the guilt of the defendant then it would be your duty to return a verdict of guilty. On the other hand, if after careful consideration at least 10 of you were feeling less than sure of guilt, then it would be your duty to return a verdict of not guilty. And so it follows that if at least 10 of you are not sure, the appropriate verdict is one of not guilty.”

Q3. If there is debatable evidence supporting the prosecution case can inferences be drawn to arrive at a verdict? If so can inferences/speculation be drawn on the full evidence or only where you have directed us to do so?

Answer: “The drawing of an inference is a permissible process. Speculation is not. In this case the evidence on which the prosecution relies is largely undisputed, and where you are willing to draw inferences from that is entirely a matter for you.”

Q4. Can you define what is reasonable doubt?

Answer: “The prosecution must make you feel sure beyond reasonable doubt. A reasonable doubt is a doubt that is reasonable. These are ordinary English words that the law does not allow me to help you with, beyond the written directions [he had already given them]“.

Q5. Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?

Answer: “The answer to that question is a firm no. That is because it would be completely contrary to the directions I have given you.”

Q6. Can we infer anything from the fact that the defence didn’t bring witnesses from the time of the offence, such as the au pair or neighbours?

Answer: “You must not, as I have now emphasised many times, speculate on what witnesses who have not been called might have said or draw inferences from their absence. Her evidence is that no one else, other than Mr Huhne, was present when she signed the form.”

Q7. Does the defendant have an obligation to present a defence?

Answer: “There is no burden on the defendant to prove her innocence and there is no burden on her to prove anything at all. The defendant does not have an obligation to present a defence, in this case the defendant has given evidence and it is for you to judge the evidence from her in the same way you would any other witness.”

Q8. Can we speculate about the events at the time Miss Pryce sent the form or what was in her mind when she sent the form?

Answer: “The answer to that is an equally firm no. The position in a criminal is that no one must speculate. There is a difference between speculation, which is not permitted, and inference, which is the drawing of common-sense conclusions from the facts of which you are also sure. Speculation is guesswork. That is not the same as inference at all.”

Q9. The jury is considering the facts provided but is continuing to ask the questions raised by the police. Given that the case has come to court without answers to these questions please advise on which facts in the bundle the jury should count on to determine a not guilty or guilty verdict.

Answer: “You must decide the case on the evidence [put before the court]. It is for you to decide which you consider to be important, truthful and reliable then decide what common-sense conclusions you can safely draw. It is not for me to tell you which piece or pieces of evidence are important and which are not. That is a matter for you to decide.”

Q10. ”Would religious conviction be a good enough reason for a wife feeling she had no choice i.e. she promised to obey her husband in her wedding vows, he ordered her to do something and she felt she had to obey?

Answer: “This is not, with respect, a question about this case at all. Vicky Pryce does not say that any such reason formed any part of her decision to do what she did. Answering this question will not help you in any way whatsoever to reach a true verdict in this case. I must direct you firmly to focus on the real issues in this case.”

Mr Justice Sweeney went on: “I want to repeat the absolutely vital importance of your following my directions of law to the letter and the fact that it is an equally important part of each of your individual duties to ensure that all of you do follow my directions of law to the letter.

“Without doing so, you are simply not in a position to reach a true verdict according to the evidence one way or the other.

“It is essential that each of you ensure that my directions of law are faithfully applied by all of you. If, for whatever reason, any one or more of you feel you do not understand my directions, then it would be wholly wrong to reach a verdict one way or the other.

“Equally, the duty of all of you is to ensure that no one of your number does reach a conclusion one way or another unless they are confident they are able to understand and follow to the letter my directions. It does come in some cases that jurors are simply not able to agree in sufficient numbers on the verdict.

“If, after further consideration, you find yourselves in a position where you are simply not able to agree, then you must of course have the courage to say so. I hope all that is clear.”

It is worth noting in passing the language used. Readability and intelligibility depend on short words in short sentences. But I do not want to dwell on that. Nor do I want to strain too hard against the judge’s criticism of the jury; though voicing it publicly in such a controversial trial may not be a step which makes juries better in the future. Some of the questions look odd but there may be reasonable explanations which do not suggest a jury having lost a fundamental grip. One possibility is that the more eyebrow raising questions reflected points being made within the jury room by one, or a small number of, members of the jury that the rest were seeking to deal with. I think it is worth saying though that some of the questions, which have nonetheless been ridiculed, are perfectly reasonable ones. These questions and the way the judge answers them may raise more modest, but important, questions.

Take for example the question about “beyond reasonable doubt”. The judge answer is, understandably perhaps, tautologous and he declines to help further. One suggestion might be that the judge may have been wrong to say he was prohibited from providing a further explanation. Archbold 4-447 (f) suggests that where asked a judge should offer an explanation: “a reasonable doubt is the sort of doubt that might affect the mind of the of a person in dealing with matters of importance in his own affairs” Walters v R. Though if the judge were wrong, frankly, I struggle to see how this further definition would help.

Another interesting question is whether the judge should have introduced the “beyond reasonable doubt” test. The weight of opinion that I have canvassed is that the normal direction to give is that the jury must be sure that that the defendant is guilty. The Crown Court Benchbook gives a specimen direction based on this test, and says that being sure is the same as entertaining no reasonable doubt. It also counsels against providing further guidance on the “sure” test.

In this case the Judge directed using both versions:

The Prosecution has chosen to bring this case, and it is for them to prove it, on all the evidence before you, if they can. There is no burden on the Defendant to prove her innocence. On the contrary, there is no burden on the Defendant to prove anything at all.

The standard of proof that the Prosecution must achieve before you could convict is simply this – the prosecution must make you feel sure of guilt (that is the same as, but no more than, the proof of guilt beyond reasonable doubt).

I’d tend to the view that there is nothing wrong with saying this, unless you think that the jury might be confused by being offered two tests rather than one. Importantly, though, they might well be confused by twin tests of such abstraction. We simply do not know whether that helps or hinders them. The more important issue in some ways is whether the jury can understand either test. That they could not has been seen as evidence of their inadequacy. I am not at all sure that it is. Let me turn to the twitter conversation from last night. James Turner QC (an intelligent – which you’d expect of course – and engaging presence on twitter @JamesTurner37) said this that caught my eye:

Well, I’ve never understood what “reasonable doubt” means – reasonable to whom, for example; deep philosophical stuff… [and]

…And the concepts of ‘dishonesty’ and ‘recklessness’ are even worse – they mean what you want.

On the sure test he said this:

How do I know if sure? What does that mean? Have I got to exclude all doubts to be sure, or only ‘unreasonable’ ones?

And continues with…

And that’s only the first direction as to law – then add the evidence to the mix – not so simples

Sean Jones QC (another great presence on twitter, @seanjones11kbw) made several comments pointing out similar linguistic uncertainties in other fields of law and then made this important point:

[I] suspect complete precision of meaning is both impossible and undesirable

I have a lot of sympathy with both positions. And my answer is that we should do more research on these questions. My colleague, Cheryl Thomas, has conducted a study for the Ministry of Justice which found this (amongst other things):

Most jurors at Blackfriars (69%) and Winchester (68%) felt they were able to understand the directions, while most jurors at Nottingham (51%) felt the directions were difficult to understand.

Jurors’ actual comprehension of the judge’s legal directions was also examined. While over half of the jurors perceived the judge’s directions as easy to understand, only a minority (31%) actually understood the directions fully in the legal terms used by the judge. Younger jurors were better able than older jurors to comprehend the legal instructions, with comprehension of directions on the law declining as the age of the juror increased.

More fundamentally, I understand there has been no research in this country on how juries (real or experimental) approach the issue of burden of proof. It is interesting to note that the shift from the ‘reasonable doubt’ to the ‘are you sure?’ test was done without such research. It is worth exploring whether, when we apply a linguistic test to a matter of uncertainty, we all understand the test and apply it in a similar way.

That kind of research can be done. One study which particularly caught my eye was Sorting Guilty Minds. That study tested US law through an experimental survey based design. It looked at how notions related to intent (“purposeful, knowing, reckless, or negligent”) were assessed by a random sample of respondents. The law’s assumption that people naturally sort mental states into these four categories with a high degree of accuracy was partially justified. Respondents, ” were able to regularly and accurately distinguish among purposeful, negligent, and blameless conduct.” The respondents struggled however with the difference between knowing and reckless conduct. This kind of research is worth doing so that the system can be sure that when it communicates responsibilities to juries and innocence or guilt to defendants and society it does so in a way that is reliable.

These questions are raised before we get into the more tricky territory of the marital coercion defence, on which the Judge directed:

A wife’s will would not have been overborne (in the sense that I have just described) if, for example, she was persuaded by force of argument to choose (albeit reluctantly) to commit the offence rather than to take another course, or if she was persuaded (albeit reluctantly) to commit the offence out of love for, or loyalty to, her husband or family, or to avoid inconvenience (whether to herself or others). Her will must have been overborne in the sense that she was impelled to commit the offence because she truly believed that she had no real choice but to do so.

It is not, however, for the defendant to prove that Mr Huhne coerced her – rather it is for the prosecution to prove that he did not do so. The Prosecution may do that (as they seek to in this case) either by making you feel sure that Mr Huhne was not present when Ms Pryce committed the offence, or by making you feel sure that her will was not overborne (i.e. that she was not impelled to commit the offence because she truly believed that she had no real choice but to do so).

Again, I want to raise some questions about the nature of the text here. Long, complex sentences with unnecessary parenthesis and obscure language bedevil lawyers (overborne?). We really should dwell at some point on how lawyers and judges communicate; particularly, as here, where the legitimacy of an institution and the liberty of an individual is at stake. Of course it is not always easy and, I say with the strongest emphasis, the job of judging is one of the most challenging and important jobs in our society. But it is not, I hope an unfair point to make that the communication of the constituents of the offence could be clearer. And it is not at all surprising that the jury struggled and asked for examples. These questions are one of the few ways in which juries can speak. As James Turner QC put it last night:

It’s all very well for judges and press to criticise a jury, but isn’t it unfair that jury not then permitted to explain?

Bonuses Up? Ethics Down

A less on the banking scandals and much other research on ethics in business and elsewhere emphasises the important role economic incentives plays in squeezing out ethical behaviour.  So I read with interest this story in CityAM claiming city lawyer’s base pay had declined but bonuses had gone up.  It may well be that this kind of variation is simply noise in the survey; but if firms increase the amount they pay their staff by way of incentives over basic salary there is in all likelihood a cost in terms of ethicality within the organisation.