Archive for February, 2007

Do you see what he did there?

Published
by
Nearly Legal
on 26 February 2007
in Legal Aid and job
. 2 Comments

John Reid, as reported in the Guardian, decrees an ID card based crackdown on access to public services by illegal immigrants, as there is:

“an underlying reality that we have not been tough enough in policing access to such services as council housing, legal aid or NHS care”.

Apparently

The heart of the effort will be “a one stop shop” to which both private sector and public services officials can go to check if someone is a legal migrant.

Now, assuming that what Mr Reid says is in any way valid, presumably we will now have to call the ‘one stop shop’ before signing legal aid forms for any client who can’t produce a UK passport. But what if it’s a fake? Do we all get biometric readers, Mr Reid? And can we charge for a half hour or so on hold?

But then I wasn’t aware that access to justice, for let us say a criminal defence, was immigration status based.

In some ways Mr Reid has succeeded in reversing the usual presumption of innocence. Unfortunately, it is only in regard to the presumed cynical aim of his own statements.

[Edit 9/07/2007. For an interesting and informed view on Dr Reid's rhetoric, see this post on Free Movement. And, yes I was deliberately calling him Mr Reid. 'Dr' is an honorific.]

Degrees of Homelessness?

Published
by
Nearly Legal
on 25 February 2007
in Housing law
. 9 Comments

Local Authority allocation policy, as it applies to those to whom the Authority has accepted a duty to secure accommodation, is still being thrashed out in the Courts.

Birmingham City Council is the latest to have their allocation policy found unlawful in R. (Aweys and Others) v Birmingham City Council [Link to Bailii added]. The Times Law Report describes Birmingham as having operated a two tier policy for priority in housing allocation for homeless. Those who were ‘homeless at home’ (due to unsuitability, statutory overcrowding, etc.) where placed in the lower priority band B, whereas those in temporary accommodation where placed in the top priority band A. Further, the homeless at home were expected to stay where they were.

Quite rightly, the Court gave this short shrift. Firstly, once a housing duty is accepted the Authority has a duty to secure suitable accommodation. Meaning the homeless at home can’t simply be expected to stay there.

Interestingly, the Court gave a guideline for how long the homeless at home might be expected to remain where they were, before suitable accommodation (temporary at least) should be found. Six weeks - anything over that would need clear justification.

Secondly, the Local Authority’s duty is to secure suitable accommodation and there is no basis in Part VI Housing Act 1996 for an allocation policy that states that some homeless will wait longer than others before this happens, simply because they are not in temporary accommodation (and here the Authority’s excuse for not offering them temporary accommodation was the difficulty in finding suitable temporary places - so the homeless families were effectively being penalised becase of Birmingham’s own problems). The Court found there was a clear duty to give priority to all homeless (where the duty is accepted). It is unlawful to give priority to a subset over others.

I am frankly puzzled that Birmingham thought it would get away with this. Once someone is accepted as homeless, the duty, and the priority, is clear under statute. Nice to have it confirmed, though. And that six week guideline could be useful.

The uses of vanity

Published
by
Nearly Legal
on 23 February 2007
in law blogs and blogging
. 9 Comments

Hands up how many readers of the British blawgs had read BabyBarista’s blog prior to say four to six weeks ago? No? Me neither. But it has been apparently going since October 06.

In a textbook campaign, BabyBarista made himself known though comments to posts on other blawgs and referral links to other blawgs. Never directly promoting his blog and tailored to the post involved, the comments certainly didn’t look like a promotional sweep, but I noticed a lot of them suddenly appearing across my usual blogroll reading. Then there was a link in to this blog showing in Wordpress admin.

Bloggers are a vain lot, and blawgers (I still hate the term) are no exception. I clicked back to see the source. So, evidently, did many others. And Lo, BabyBarista appears on blogrolls and is mentioned in dispatches all over the place. (But good heavens hasn’t his blogroll expanded dramatically).

The blog certainly repays a click, being a ‘fictional account’ of a Pupil’s progress - Hogarth reference intended. Think a menage a trois of Donna Tartt, Harry Mount and Anonymous Lawyer with looming Tesco’s Law thrown in. Some bits don’t quite ring true, though. Can anyone who has done Tort, let alone enter a Criminal/Common Law Chambers, genuinely be surprised that accidently killing someone is a lot cheaper than injuring them?

As thoroughly enjoyable as the blog is, I think I was more impressed with the stealth publicity campaign, adroitly using the vanity click-back to build up what passes for a publicity storm in the smallish UK blawg world. To which, of course, I have just contributed. It is a very good example of how to work a blog circuit. Of course, it helps if the blog is actually worth reading…

No, No, Not the Human Rights Act.

Published
by
Nearly Legal
on 20 February 2007
in job
. 0 Comments

Why does my heart sink every time a prospective client call is transferred to me with the words “it’s about human rights”? Do I, like Blair and Reid and Cameron, despise the Human Rights Act 1998? Do I feel it has handed an excessive power to the courts to interfere in the perfectly reasonable decisions and actions of the executive and the state?

Not at all. Nearly Legal is terribly keen on the Act and wishes it to be defended against its maligners and misrepresenters. Well done to Lord Goldsmith for pointing out the nonsense that is talked about and wrongly ascribed to the HRA. But the misrepresentation is part of the problem. As a result, in the popular imagination and in particular the imagination of the failed litigant, the HRA is a legal weapon of great and mysterious power, to which recourse can be had whatever injustice has befallen them.

With a little ingenuity, their situation can be wrestled under one or more of the commodious Articles of the Convention. So then it is just a matter of finding a solicitor to take on the matter, because for some reason their current solicitor refuses to undertake the case, or because they are (more often) a litigant in person.

Except, of course, the case is nearly always wrong, unfounded or a non-starter.

Each time I take one of these calls I know pretty much exactly what will follow. First will come the outpouring of the lengthy story of the wrong that has been done them, usually without either taking breath or including the less persuasive salient details. Then follows either a cry that nobody will help them right this wrong, which is clearly against their human rights; or, from the litigant in person, a lengthy explanation of their understanding of human rights under the convention and their interpretation of the bits of case law that they have seized upon (and why they were wrongly decided, if necessary).

Almost always, once one asks a couple of questions, usually directed at the more obvious omissions in the monologue, the fundamental error becomes clear. Any attempt to suggest the problem is not well received - usually by silence, a further torrent of explication of the wrongness of precedent, or an appeal to one’s sympathy for the injustice of the situation.

In place of the tabloid (and broadsheet) nonsense talked about the astonishing and far-reaching powers of the HRA and the ECtHR, it is time for a public information campaign about what Convention Rights actually mean, their limits and what they are for.

I would like to see it made clear, for instance, that:

  • The HRA and Convention only apply to public bodies or those exercising public functions. (So no, you can’t bring a human rights prosecution against the video shop even though its staff did behave in a homophobic manner towards you.)
  • There is, in general, a difference between not winning your case and a breach of Art 6. In particular, dear litigant in person, there is a difference between having your application for permission to appeal to the Court of Appeal refused and a breach of Art 6.

Of course, some litigants in person manage to combine different forms of wrongness, such as the woman who called a few weeks ago, seeking to prevent a private body enforcing a legitimate court order on the basis that it would breach her rights by interfering with her application to the ECtHR (by financially ruining her). The actual application was that a refusal to allow an appeal was a breach of Art 6, where the aim was transparently solely to reverse the original decision of the court. Quite magnificent.

The nature of a complaint to the ECtHR seeking to reverse the decision of a national court is a tricky one to grasp for the litigants in person. Simply running out of national alternatives, e.g. by having an application for permission to appeal refused, does not mean the application is going to stand a chance in hell unless the decision reveals an arguable breach of the Convention rights.

So, assuming the decision was within the Court’s discretion and the law - and recourse was available to higher national Courts - there is no chance of a successful application in relation to a case where both parties are private unless it is a challenge to the law per se. (No, not just because you think the court’s decision was wrong and unjust). That isn’t going to get the initial decision reversed, even if the complaint is upheld.

And then, understandably, people find it difficult to grasp that a public body doing something they don’t want it to, which may have a bad, even devastating effect on them, is not automatically in breach of the HRA.

The callers about care cases are the hardest in this regard. They might have a genuine case - I am not competent to assess them, and it is not an area in which we we act - but they have usually fallen out with their current solicitors. Their situations are awful and I pity anyone who has or had to explain to them that their case falls within the proportionate and justifiable interference with Convention rights (assuming it does).

This is the big explanation that is required, that the Convention and HRA exist to ensure that state actions, where they interfere with Convention rights, are proportionate and serve a justifiable public purpose.

Until then, everyone who feels slighted, unfairly treated or has a burning sense of injustice, will reach for the HRA and then get mightily pissed off when told it ain’t gonna happen. [Edit. Aha, right on cue comes this news item].

That said, I have had one call from a litigant in person who outlined a possible complaint to the ECtHR that was difficult, complex but arguable. Not very likely to succeed, admittedly, but potentially a case. Sadly, we couldn’t manage it at the time. I hope someone took it on.

[Edit 2. I've just seen this very interesting post on Head of Legal. I'd missed the debate commented, so I didn't realise I was approaching topicality. I might come back to the debate in another post].

Ooops.

Published
by
Nearly Legal
on 19 February 2007
in whatever
. 0 Comments

In retrospect, yesterday might not have been the best day to have been posting about briefless barristers.

Pick a Counsel, any Counsel…

Published
by
Nearly Legal
on 18 February 2007
in job
. 5 Comments

I have been having a few discussions lately over whom to instruct for some upcoming hearings in cases I’m looking after. And then, by co-incidence, I read Legal Beagle on the barrister’s fear of being briefless.

Of course, I realise that barrister’s tendency to look down on solicitors as mere paper jugglers and file carriers is born of anxiety and resentment of their dependency upon the file carrier’s favour. So, in a spirit of rapprochement with the senior wing of the profession, I thought a little account of how and why Counsel gets selected might soothe some paranoid souls. I should point out that this is purely from experience of a legal aid litigator’s point of view. Those barristers in other fields will just have to remain anxious.

Choosing Counsel is something of an art form rather than a rigorous procedure. I like to think of it as a combination of skill and intuition, although it may well appear to outsiders, particularly the barristers concerned, to be more akin to a cross between whim and pin the tail on the donkey.

Every solicitor has their favourites, of course, but it is never a closed list. New barristers are added, others drop off. Oddly enough though, Chambers and barristers schmoozing and offering jollies doesn’t seem to play a huge part in the process.

Being subtracted from the list can be for a whole range of reasons: poor performance in court, obviously, but also letting us down through lateness or lack of attention to a matter; an emerging tendency to push for settling where we think the case deserves better; not wanting to push a case on its particular facts; or a hike in fees making the barrister pricey for the kind of matter we’ve been using them for, all could play a part. Something as small as not calling us directly after a hearing if no-one is assisting can be significant. Of course, there is no ‘one strike’ rule, it takes an accumulation of concerns.

Even how a Chambers’ clerking seems to be run plays a part: bounce us through double booking or sudden unavailability too often and the whole chambers gets a black mark or two, which can be enough to drop a particular barrister off the list.

Getting added to a list, barristers possibly will be worried to know, is rather more random. Recommendations from colleagues are often important, as is being publicly visible as good at certain kinds of case or area. But solicitors are a conservative lot on the whole and tend to stick to a particular range of Chambers. Clerks rely on this, but rather too much sometimes. We will shift a matter across Chambers if our first choice is unavailable and the alternatives aren’t on the solicitor’s current preferred list, assuming that our second or third choice elsewhere are available.

So it is often an emergency that provides an opportunity to audition new Counsel, often a junior. Something like a sudden application hearing, an immediate stay of eviction hearing, or maybe an unexpected falling through of settlement plans (I’d usually try to have Counsel booked ahead of time in any case, but sometimes events overtake you).

Faced with no alternative, and after asking colleagues for suggestions, to no avail, one accepts someone new put forward by the clerk as available and shoots off instructions. This is their chance to shine; a good performance on late instruction, and/or with scanty facts, or with a difficult client, will be remembered and talked about. A couple of juniors I’ve first instructed in these circumstances have been used by my supervisors and by me on a fair few other matters since. Others haven’t, because I wasn’t impressed and said so (yes, me, a paralegal. My opinion is considered).

Having established a working list, it is then a matter of choosing Counsel for a case. Expertise in the area of law is one factor, of course. For example, in a Housing practice, there will be a couple of counsel who are preferred for advising and drafting grounds for s.204 Housing Act 1996 appeals, because, even though the grounds may well arrive at the very last minute thus driving us to distaction, they are very good at producing effective grounds out of difficult cases. Then there will be a couple of counsel preferred for without notice Judicial Review applications, for similar reasons. There will also be a counsel or several to whom one will turn for arguing a difficult or innovative case turning on points of law.

But in the broader field of, in my role, possession, eviction, disrepair and illegal eviction cases, then it is a question of matching counsel to the needs of the moment and the case. This is where skill and intuition come into play.

What approach will work best at this point, given the case, the available facts, the client and the opposition? Do we want all out passion and aggression? Do we want a forensic approach? Will the client’s situation or point of law be the crux? Do we need someone who can be relied on to do very little when the opposition appear to be shooting themselves in the foot? Or do we need a persuasive storyteller? Will someone be likely to push every point of quantum as is necessary, or do we actually want someone likely to pull off a decent settlement before the hearing? Does the matter need careful handling of the client by Counsel? Will Counsel be able to work with this client? Who has a history with or against the opponent?

I’d say that, for the majority of our matters, all of the Counsel that we generally instruct would be potentially competent to deal with it, but the question is which is best for the specific case. Like everything else in litigation, the decision is a tactical one.

So there we have it. If you are a barrister whose instructions from a firm seem to have tailed off, it may simply be that they haven’t had the right kind of case or situation for which you come to mind for a while. Or it may not…