Tag: lawyer

Civil Advocacy – Making Applications

Posted on by T. Maxwell-Harrison

Making applications to the civil courts has been the staple of advocacy training within my civil skills units. I have also managed an application or two in criminal law but nowhere near the level of civil. Welcome to my journey into law page and thanks for stopping to read this post.

Today was a civil skills session involving the application for something known as a Norwich Pharmacal order, the name of which is derived from the case of Norwich Pharmacal Co v Customs and Excise Commissioners (1974) AC 133. To those unfamiliar with how to read such a case title, you have the year of judgment in brackets, AC means the case was heard in the Court of Appeal and is number 133.

The Norwich Pharmacal Order, herein referred to as “the order”, is used by an applicant when they want a party to disclose the name or details of another party or of a document. Such relief could be needed where the applicant is seeking the correct party to sue where they do not know their details. Mitsui & Co Ltd v Nexen Petroleum UK Ltd (2005) EWHC 625 (Ch); (2005) 3 All E.R 511 ChD at (21) summarised the three pre-requisites of the order. I won’t go into that test here, but might refer to it.

Other applications made in civil advocacy sessions include, *application to set aside default judgment, application for interim application, today application for the Norwich Pharmacal. I may have missed out one or two but they are the ones completed which I can recall. All of them seemed daunting but in reality I performed better than anticipated. In fact the civil advocacy unit has been a strong point for me. Today the students I was with (online still, remember?) and I were told that we were all very competent. This is quite the achievement. Grading is from competent to outstanding so to be in the middle, knowing what I am doing is really rewarding and I know that my work is correct.

Civil advocacy takes place in civil courts, like the County Court, the High Court and Court of Appeal. Such applications are the bread and butter of newer barristers and I suspect most students will be well versed in them by now. Next week is the civil advocacy mock assessment. In fact next week is rather busy with mock assessments. My aim is to just take it slow and prepare as much as I have been doing, if not more.

The Civil Procedure Rules (“The White Book”) is what is used by civil barristers and students. It allows them to follow the legal rules for making applications to the court, such as whether they can bring such an application, the surrounding tests and the required case law, if required. There is also the need to research case law using other sources, but the information is readily available from one, which is a bonus. Given that we were all very competent today, I am sure that there is nothing to worry about and that I will pass my mock assessment. The only issue is that we cannot possibly know what the assessment will be on, only that we have some time to prepare for it in advance!

I can see why people get confused about the legal system, and I am studying it in considerable depth and some of it is still quite muddling to myself. Granted, there are some lovely online students and the civil advocacy tutor (online) has been great. I will have to go back to campus soon though because otherwise I will feel like I am letting myself down and there really is no better practice than face to face.

I hope you understand more about a civil application to the court. To summarise, a barrister / advocate can make an application to the court on behalf of the Applicant, not always the claimant but can be, which requires the court to consider it in line with the appropriate CPR rules.

An Update On My Results

Posted on by T. Maxwell-Harrison

Thanks for following my journey into law and my experience on the bar course. You may recall that back in November I posted about criminal conference as my assessment was due to take place in December. A lot has happened since then. I’ve been very depressed and had my ups and downs over the last month. Today I checked my results.

This month, February, is particularly busy in terms of completing mock assessments. I completed a mock drafting assessment in December where I had to complete a defence and counterclaim (D&CC). Sadly, I did not do as well as I hoped on that. I also recently completed another D&CC and didn’t do too well again. I was getting the marks, but one or two marks from what I should have got. But, the good news is this, the final drafting assessment for the D&CC which is the 21st this month, is the same type of law and area as the one we just completed. This is a relief, as it means, that I believe I can do well since I already have a grounding and example of what is expected in this. I pray to God to let me succeed, please.

Yesterday I also pumped out a professional opinion. The opinion writing mock assessment. To be honest, the brief was 10 pages which was a huge relief. I also spent an hour letting it sink in, before realising the area of law that I needed to research. I hope I was correct in both my research and in the matters in issue. It concerned a case of work being completed which later turned out to be dangerous, and there was no contract in place as the architect had done the work for free. If anyone knows a little about this, feel free to drop a message below!

I also have a professional ethics mock this month. Apparently there is a 2 week window to complete the mock assessment. I do not know when this is since it is not shown. Anyway, I hope I do well. It is 1 hour 30 minutes. Ethics seems to be an area that hasn’t been taught to us as students, and the university seem to have left it all to self study, which I find unfair since we are paying for the course and if this module is expected to be examined on, then we should receive classes on it.

This was a brief post so I thank you for stopping by and continuing to read about my journey. I passed the conference assessment. Now, I just need to pass the real drafting assessment on the 21st. Yes, I am scared and yes, I really will do my best. I also have next week off, a sort of revision week in which I intend to go over all the drafting materials and feedback that I can find. Wish me luck, and may God guide me through this challenging time.

I’ve Decided to Engage Online.

Posted on by T. Maxwell-Harrison

Given that it is winter, and that the crisis is not over yet, rather it is in full swing, I have decided to engage in my workshops online for the foreseeable future.

This was a decision I wanted to take before new year and I contacted my provider and made it clear that is what I was going to do. It will significantly reduce the risk to me.

I just hope that the online sessions are as good! Seriously though, not an easy decision to make, but nonetheless essential. I am also on the fed up side lately so working from home might help that. I completed my degree as a home based learning course which I found great.

When it comes to the development of working conditions, I believe students learning from home is up there as being something that they can do. Working or studying from home is essential in times like this. But, I don’t like the idea of people working from home who could otherwise work in person. Some areas like being a doctor… or lawyer, require face to face work for court cases and hospitals respectively. Although, a lot of lawyers are remote working anyway. My point is, utilise the work from home but do not overdo it.

How did you find the transition to home working? Do you enjoy it or are you simply in the office out of respect for old fashioned working values? A lot of people suggest that working from home creates laziness, and to a degree I agree with that, especially if one is sitting in their pajamas for a conference or in bed whilst on the laptop for work.

Criminal Conference

Posted on by T. Maxwell-Harrison

I have just completed my mock conference assessment today. I was nervous about how this would go, and what I would score. I had done my preparation but there is a significant element of flexibility required. The criminal conference is one form of assessment and something that is required to pass the course. It involves talking to your client before a court appearance for example.

In the type of conference I had today, a plea before venue and allocation hearing was scheduled to take place immediately after the meeting with my client. This means I need to establish the facts of the case, to confirm whether my client has satisfied the elements of the offences, whether they have a defence, how they would like to plead (after advising them on the strengths and weaknesses of their case) and choosing a court if pleading not guilty, and if they have a choice.

It sounds simple, but the mock assessment was 20 minutes. The real assessment will also be 20 minutes. This is not a lot of time. I did manage to get through all my points in time, but, I still missed things and could have done better. I can always do better. The conference was also recorded, which is great and conducive to learning.

At the core of a conference is the barrister client relationship and being able to act in the best interests of each client. This is a barristers core duty, and one which is subject to your duty to the court. Too much legalese? The core duties are not secrets of the state, although, they are probably not known by the majority of British citizens. Rest assured that barristers are independent and regulated by the Bar Standards Board and their chambers to an extent, you won’t find an incompetent barrister for the most part… yes, some barristers are bad, that is not usual.

A criminal case will be heard in the magistrates court initially. This is 99% of criminal cases. Only the most serious of offences will go straight to the crown court. The crown court has more sentencing powers, and as such, the process is strict, can take longer (getting a hearing date could take a while), is more formal with wigs and gowns, a legally educated judge and the most important part that defendants need to know, a jury!

12 lay people, from all walks of life, not legally educated, able to decide whether a defendant is guilty or not guilty. The topic of much debate. Without a jury what will the crown court become? It is the best system that England has in place, and is a lot fairer than other countries. EU countries are not subject to common law like England and Wales. Rather, they are utilising a system of Civil law, derived from Roman law, which codifies the law… get it? The codes cover everything (supposedly) and rather than using previous case law, will instead rely on these codes for the sentence. EU law was rather enjoyable, and learning about the complications of cross border consumer law was brain stunning. I feel relieved that I achieved a decent mark in my undergraduates studies on this module.

Back to the conference. As mentioned a defendant will initially appear before the magistrates court. A bench of 3 non legally educated people, who are usually case hardened having listened to a lot of similar cases, and therefore more likely to find you guilty and sentence you. They are volunteers, yes, you heard me correctly, the 3 people about to decide your fate are volunteers from the public. You do have an automatic right of appeal though, which is a bonus, you don’t have that in crown court. The bench of 3 could instead be replaced on the day of your appearance by a district judge. These sit alone and are legal experts. Why they don’t just use these all the time is beyond me, and probably would help too.

If the client has any previous convictions, my understanding is that this will be of detriment and if it is a similar offence, could result in a much harsher sentence. As for defences, they are available and are limited in how they can be applied. If someone is charged with an assault – common assault at law which involved physical contact – they can use a defence if they committed the offence as the result of acting in self defence. You may know this, but the burden of proof remains with the prosecution to prove that the amount of force used was unreasonable. The defending barrister will have to prove that the client acted in self defence, and if they do this successfully, that is a complete defence.

Other defences are available, and essentially they are either a lack of mens rea – the mental element of the offence, and actus reus – the physical element of the offence. Most disputes in cases will focus on the mental element, as to whether the defendant intended to do something. After intention there is a whole host of other reasons for the crime being committed, such as recklessness, negligence, mistake, duress, etc. The actus or act is much easier to prove than the mental element, but again, this is something I love about English law, that it provides a fair a due process.

‘It is called Magna Charta, not that it is great in quantity … but in respect of the great importance and weightinesse of the matter.’

Edward Coke

Would you take the advise of your barrister to plead guilty or not guilty? Do you know that you don’t have to give a plea? Are you a good person of good character with no previous convictions? Although lengthy quotes from magna carter are not used by barristers in conference, they no less have to engage with the client and establish the details of their case. Without the details, you might be incompetent.

Needless to say the rest, I was told that I was competent, along with the other student. This is good I guess. The opposite would be incompetent, which would be rather embarrassing… Now I need to prepare for the full assessment and try not to mess it up, preparation is key.

Check out my article – part 1 of 2

Posted on by T. Maxwell-Harrison

Please find my article below.

They decided to split it into 2 posts. I am fairly happy they reached out, although my contributions seem meager, they still provide great reading for law students

Simply Law is a great site for law students. The staff are welcoming and friendly.

A day in the life of a BPC and LLM student

Criminal advocacy 101

Posted on by T. Maxwell-Harrison

Journey into law.

The continuing quest to enter the profession of the noble and historic barrister. I’ve been blessed to be able to sit in this warm apartment with my heating. I am blessed to be able to buy ready made meals, drinks and ‘accessories’ on will. Not everyone has those blessings or opportunities. A significant population of the world does not have access to clean water, nor do they get 3 meals a day… they may go hungry for days because they can’t afford food or there simply isn’t any available. Many live in unsanitary conditions and have to live in shacks. They are at the knife point of various drug and trafficking gangs and a lot will be killed before they reach their 20th birthday.

When you conjure up an image of justice in your mind, do you automatically picture a 1st world country court? Perhaps you envision a revolution, a crown court trial, a mother receiving restitution for the wrongly gained, or a child being reunited with their lost parents. Subjective, arguably, is the perception of justice. Not so fast, you see there is a definition and it goes like this ( according to – https://www.thefreedictionary.com/justice):

1) The quality of being just; fairness: in the interest of justice, we should treat everyone the same

2.a.) The principle of moral rightness; decency. b) Conformity to moral rightness in action or attitude; righteousness: argues for the justice of his cause.

3.a) The attainment of what is just, especially that which is fair, moral, right, merited, or in accordance with law: my client has not received justice in this hearing.

So we seek to maintain a just, fair society which is morally correct and any breach of that is to treat people differently and to breach the law. Of course, nowadays treating people differently has indeed become a criminal offence in some cases. You couldn’t now in the 21st century get away with homophobic or racist remarks. But, merely 50 years ago and indeed not even that long, people were saying these things more often. I personally don’t think there has been much of a change, but there is the fear now that one is breaching the law if they were to make such a ‘remark.’ Civilised society has become a bubble wrapped and tightly controlled arena, with the big cats with the money influencing huge policy makers and government. Private investment into new technologies and advertising has seen the general population brainwashed by morality propaganda. I’m not justifying those racist or homophobic remarks, or anything else that would breach protected characteristics according to the Equality Act 2010. Some of those include age, disability, gender reassignment, marriage or civil partnership and pregnancy or maternity. But, rather, I am saying that morality doesn’t need to be enforced, it is learned and one can choose to obey or not to obey. The latter will see you (if caught) being persecuted by the state or private corporation. The former will also do the same, rendering you a slave to the idea that somehow those individuals are ‘targeted’ and ‘victims.’ If you cry wolf that doesn’t mean you care what happens to the victims.

Trying to control what people think and telling them how to behave is a sure fire way to provoke even the most docile of humans. Why? Because we have autonomy and freedom of thought. You can tell a group not to discuss the elephant in the room, but at the end of the day, it’s there and they will discuss it. Criminal justice has been spiraling downwards for a number of years. Legal aid cuts, fewer pupillage spaces and a general lack of money at the bar drives people away from this extremely tiring job. Criminal barristers spend more time working than they are paid for. If society wants a just and accepting place for all, then instead of stoking the fires of inequality, hatred and fear, instead focus on improving the structure already in place and provide Just and moral outcomes within the criminal justice system, adjust the propaganda machine accordingly. We don’t want people in prison based on their opinions of society, we want people to be able to live freely and without fear.

Thanks for reading. Namaste and peace be with you.

Bar Course Books arrive

Posted on by T. Maxwell-Harrison

Unfortunately I was feeling unwell last week and on Sunday went to an accident and emergency department on advice of the phone service. After many hours of waiting I was seen and admitted, put on some IV antibiotics and fluids. By 12am I was fed up and wanted to go home. By 3am I told them I had had enough of waiting and wanted to take oral antibiotics at home. Anyway, sent home on oral so thankfully recovering in my own space.

It really put a dent in my course start as I was thinking to myself, ‘If I’m not well enough I might miss my start dates.’ I’ll push through, I have my last 2 doses today and tomorrow so am healed almost.

And I am excited to start the course. After receiving a most dire response to my query regarding Blackstones Criminal law. I had asked why the book was not available to order along with the others, along with the likes of the daunting White Book or evidence and drafting… I was told that it isn’t available until October. Oh no! That is when a new version is released and I guess we have access via our university library anyway so one doesn’t miss out .

Today, early and by special UPS delivery, handled with modest care were the books that will consume me over the next 9 months alongside the course materials.

  • Course materials – civil skills, civil litigation, criminal skills, criminal litigation
  • The Jackson ADR Handbook
  • Evidence
  • Drafting
  • Remedies
  • Professional Ethics
  • Civil Procedure Volume 1 & Civil Procedure Volume 2 (The White Book)
  • Blackstones Criminal Law (Not Available in physical copy until October.)

It was all a little daunting before I even enrolled on the course. The doubt and unease kept creeping in after I passed the bar course aptitude test. Even then, I had a false sense of confidence. In reality I need to do way, way more mooting – something that I will no doubt post about in the future – in order to improve my speaking and legal knowledge. When I accepted my full place by way of completing the conditions, and by paying the deposits required.

Of course, this is me, I am strong and I am not scared like a little cat in the alleyway. No. The people scaring students into believing they are embarking on a soul quest are wrong. It’s a course and yes no doubt difficult, but that doesn’t mean we should be drilling students with a negative image. Let’s keep it positive and real yeah?

The reality according to the Bar Standards Board – the authority regulating barristers – is that the statistics page for pupillage shows that in 2019/20 404 pupils commenced pupillage in their first six.

(https://www.barstandardsboard.org.uk/news-publications/research-and-statistics/statistics-about-the-bar/pupillage.html)

Since the 1990’s, the number of pupils actually succeeding in securing pupillage has fallen. This is in part because in 2003 it became a requirement to fund or pay for a students pupillage. It also could be because there are considerably less pupillages over the last 20 years, particularly over the period of 2020/21.

“3,301 bar hopefuls compete for 246 pupillages” in 2021 according to the Legal Cheek article, Pupil Barrister numbers down nearly a third in 30 years.

It’s worth noting this is a low number of pupillages. Many chambers or sets have openly admitted culling pupillage during the crisis due to the economic uncertainty.

That’s the truth and the reality. A little unfair? Possibly.

I hope you enjoyed reading this post and look forward to many more to come.

The Coroners Court – the inquisition

Posted on by T. Maxwell-Harrison

Let me take you on a journey. It’s a warm and sunny day in middle England. Surely as the crows fly and the cars rumble along will there be an inquest at hand. Welcome, to the coroners court!

Surely as the crows fly and the cars rumble along will there be an inquest at hand.

me

The best experience a law student can gain in their summer period or time off is to either undertake some form of work experience within a firm or chambers or to visit the courts themselves. Many people are probably under the assumption that crown and magistrates courts are the only courts in the land. This is not the case; there are many courts, including the coroners court, the high court, the royal courts of justice, the supreme court! England didn’t begin to create the common law system for one bloody courthouse. Many centuries ago now, the courts would travel around England and impose the law as they arrived, not very effective at blanket law enforcement.

So, the coroners court, pour yourself some whiskey for the hours long inquisition into the death of an individual. Very much an individual. There is a presiding man or woman – I have no idea what there title or qualifications are. All rise, so I assume a judge of some variety, Apparently I was in luck as the woman overseeing todays case was the ‘top’ dog, or in other words, the boss of everyone else who works there apparently. Friendly staff and a much more welcoming atmosphere than the crown court. For one, there is no body scanner or “empty your pockets!” You are free to enter and the guy at the desk was apparently serving an apprenticeship – a great choice of area – and he was kind enough to give me the details of the court and the upcoming inquisition.

An inquest is the best to see and witness, and I enjoyed observing. The court was big and fresh, lots of breathable space. The session also lasted from 2:30pmto 5pm… two and a half hours! There was a brief 15 minute break around 4:15pm. Inside, in front of the judge is the clerk, and usually the room would be full but due to the current situation the doctor was communicating with the court with microsoft teams. It’s different to criminal proceedings, the family have access to a microphone and the overseer is much friendlier and more empathetic. I am interested in the work of coroners and the court process, but sadly I don’t know what law applies to these inquests, so that is something I’d like to learn more about.

The case today concerned the death of a family member who the family argued was released from hospital incorrectly as they were considerably ill, they later died at home after being discharged. The findings of the court was that the junior doctor had failed in their duty, and so did the accident and emergency department. I don’t really know what the family get out of it, as there was no mention of monetary compensation at the conclusion. There was mention of contacting the department for health and educating the juniors to avoid future recurrences. I’ll be honest, the hospital in question has a long list of questionable deaths that have previously been to the coroners court, and I myself have witnessed the dire performance and negligence within its walls. It’s the reason I refuse to be treated or seen there anymore.

I’ll be honest, the hospital in question has a long history of questionable deaths that have previously been to the coroners court, and I myself have witnessed the dire performance and negligence within its walls. It’s the reason I refuse to be treated or seen there anymore.

me

A somewhat emotional hearing, an inquest with family that have recently lost a mum, wife, grandmother etc, and who are grieving. Empathy and understanding go a long way and this is the reason the law needs to maintain high ethical and moral standard. Without it, we’d have a court system run by evil prejudice hylics! Maybe the conclusion was one that the family wanted. Throughout, even I could assess that it was the hospital and doctors failings that led to the death, and the court rightly found the same. I would have been pretty angry if it hadn’t. To deny the evidence and to avoid blaming those who are culpable is not the milkshake society I want to live in. Have courage to do justice.

It would be nice to return for a pre-inquest hearing – not sure if that’s the name – when all the press turn up to get the gossip. Why do I want to be there at the same time as the press? Because during my court visits I have been mistaken for the press, firstly by a barrister, secondly by the court usher and thirdly the ‘inmate security officers.’

I will add this, that I managed to see a brief amount of a case in the magistrates before heading to the coroners. The defendant was unrepresented. Honestly, I think considering they wanted counsel for a plea in mitigation, give me the papers and I’ll do it. But, I’m not qualified yet and I don’t fancy lying to assist the unassisted. Luckily, the magistrates postponed the sentence so he could discuss the issue with the duty solicitor. There is also 1 court open in the entire magistrates court building, an absolute joke. If you’ve followed the news, you’ll see that the backlog of cases in England is substantial and they have ‘nightingale courts’ open. Government take my advice, society has gone back to normal, nobody is concerned about the pandemic anymore. Open the courts and let all of its facilities be used… one courtroom a day means the running costs of the entire building.

Have a lovely evening all and may peace be with you!

Magistrates Court Visit: The Mage’s Lair

Posted on by T. Maxwell-Harrison

I was off out to the Greater Manchester area, to the town of Stockport. The picture above is from Bing images, but it is of Stockport magistrates court. The room made me feel as if I were in a Star Wars spaceship. The white tiles walls, with barely anything else, was alien! I was also the only one in the public gallery, again. Someone has to keep an eye on the system.

Dubbed the wild west of the criminal justice system, the magistrates court is the first point of call for the majority of criminal cases. The more serious offences, called indictable offences like robbery, serious assault, rape or murder can only be heard by a crown court.

Dubbed the wild west of the criminal justice system, the magistrates court is the first point of call for the majority of criminal cases.

Let’s dig into the differences and similarities between the Magistrates and Crown court.

First, and most notable, is that the bench consists of 3 magistrates. In front is a clerk or legal advisor, they are the ones who are most likely to have legal education and training, as the magistrates are essentially ‘uneducated in law.’ Next we have both the defence and prosecution lawyers, they are on their own table in front of both the clerk and magistrates, facing the bench. Today, the defendant was to the right inside a glass shielded box, the place they have to stand during the hearing.

The jury box was also empty today, as the hearings I entered were pleading hearings – not sure if that’s the right name! Oh well! Behind the lawyers or prosecution and defence counsel sits the public, that is where I was sat, and a gold rail was between me and the rest of the court room.

Crown courts generally have the same sort of feel and layout, although, the bench will consist of an actual legal judge. Sometimes a magistrates will host a district judge, and today, surprisingly, the court had a crown court operating within its walls. Barristers represent and prosecute in the crown court, where they wear their court regalia of black cloak and white wigs.

The dress code in the crown court is to be admired, because when you look at the suits being worn in the magistrates court, they do not look as serious or impressive. The usher was the only one wearing a black cloak. I call it the Voldemort cloak as it reminds me of the sort of clothes he wore in Philosopher stone. I was advised to come back in the mornings and on trial day, so I am going to head back tomorrow morning to try and see some. I don’t think I’ll post about that though.

An American flag displayed, although the layout is almost the same in the UK.
Westminster Magistrates Court

I saw 2 hearings, both relating to drink and drug driving. The first pleaded not guilty to drug driving and the second pleaded guilty to drink driving. I know from past experience that driving offences take up the majority of magistrates court cases. The defendant pleading not guilty will go onto a trial, where a jury will be present.

The defendant pleading guilty was to be sentenced straight away, although, in this hearing, defence cousel requested further assessments of the defendant’s mental health and similar, and therefore it was postponed or adjourned.

Check out the useful video below on the magistrates court :

Thanks for reading. Have you ever been in one of these court rooms?