Festive Choices for Ukraine

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2004 was Ukraine’s Orange Revolution- which saw protests arising from elections which were allegedly rigged in favour of Victor Yanukovych. After tense scenes in Kiev, Victor Yushchenko was inaugurated as President. The irony was that 2010 saw Yanukovych become Yushchenko’s successor as President.

November 2013 once again, in a throwback to 2004, sees protests in Ukraine over the non-signing of a treaty which would have resulted in closer Ukraine and EU trade ties. In diplomacy reminiscent of the Cold War, Kiev preferred a policy of not angering Russia, who still sees the Ukraine and that Eastern European belt of countries as within their ‘sphere of influence’. Moscow has remained quiet over the protests, but undoubtedly is quite pleased that the current administration is as loyal as its predecessors.

Former Prime Minister and iconic heroine of the Orange Revolution Yulia Timoshenko was arrested and charged several years ago with abuse of office, in a trial that perceived by many commentators as being politically motivated. From her prison cell, in speeches, audiences, hunger strikes and other similar ways, she continues to be the colourful voice of freedom for Ukraine, and still calls upon her supporters to demonstrate against the current government. The current Prime Minister, Mykola Azarov, was only marginally luckier: he survived a recent no confidence vote in Parliament, and was stinging in his criticism of the protesters.

Those protesters in recent weeks have made their way right up to the government buildings and ministerial offices in Kiev, and were chanting in Independence Square (the focal point of the 2004 revolution). They were met by an aggressive response by riot police, which only served to inflame the opposition. Matters went so far as to result in a statue of Lenin in Kiev being toppled, to great cheers from the opposition.

Although another painful and tense time for Ukraine, it is proof that change has come to parts of Eastern Europe.

In the Cold War, the USSR exerted its influence over Ukraine and neighbouring countries with an iron fist, crushing dissidents and protests. 2013 sees the voice of opposition and protest being heard and loud and vocally right outside the President’s palace. Although being met by riot police and ruthless government opposition, the protesters are still gathering, still demonstrating. They are not being met with violence or oppression as in previous years, and know that they can gather in Kiev to let their voice be heard without fear. Democracy is now alive and thriving in a country where authoritarian repression formally held sway. Although an emerging and troubled democracy, democratic freedoms and principles are there- hopefully to stay.

Despite the positives of such democratic values, and in standing up for freedom of speech and expression, this sits uncomfortably with Ukraine’s leaders. The administration is keen not to provoke or anger Russia, and still fears the power of the Kremlin.

In a probable demonstration of the latter, it was very recently announced that Russia had agreed to buy up to $15bn of Ukrainian government bonds, and to drastically reduce the price of Russian oil. This agreement will protect the stability of the nearly bankrupt Ukrainian economy, according to the troubled Prime Minister- but critics want to know what is being given to Russia in return. This agreement is a blow to European economists and politicians, who were eager to encourage greater cooperation and ties with Ukraine. Indeed the EU remained open to further talks throughout the protests. Despite the people wanting European openness and freedoms, the Russian bear still remains a powerful presence for Ukrainian leaders. Caught between an angry Ukrainian people and a disapproving Moscow, Yanukovych chose to appease Moscow.

Yanukovych argued that the previous EU deal did not provide adequate support or compensation for Ukraine’s faltering economy.  The President also cited trade losses with Russia if the EU deal was signed- whilst failing to mention Russian plans for a customs union, similar to the EU if many of the former Soviet satellite states.

Opposition leaders, critics and protesters alike will be keen to show their opposition to closer ties to Russia, and turning away from the EU. The unsettled situation in Ukraine continues, and no doubt will unfold further amidst these latest developments. Amidst such protests and politics, the spirit of freedom and democracy from the Orange Revolution carries on.

Churches in Kiev will be preaching the Christmas story in coming weeks. As they do, it must be recalled that Jesus Christ himself showed similar bravery in standing up and confronting a totalitarian Roman regime, by preaching Christianity and a new faith. Ukrainians should also remember the spirit of togetherness and humanity that is at the heart of the Christian faith, born out of an oppressive Roman regime.

Merry Christmas to all.

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Optical Illusions and Advocacy

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Visual illusions come in many forms. Some are better known than others, with varying degrees of entertainment- and all of them designed to trick and confuse the viewer’s mind. Some of them are designed to draw out or illustrate a psychological principle; one such well known image is below. In the optical illusion image below- what do you see?

1There are three possible things that the average person will see.

The average person will either see an old woman or a young woman. What do you see? Do you see a young woman looking away from the viewer, with a feather in her hair, and the top of a thick coat visible? Or, do you see an old woman with a prominent nose (being the jawline of the young woman and the necktie being the old woman’s mouth)?

Whichever image the average viewer sees, it is essentially two different perspectives of exactly the same thing. This is very similar to a court case, where the case is seen and presented in two different ways. It is all a question of differing viewpoints, perspectives, and interpretation.

However, there is a third viewpoint. Namely, that the image is just what it is. It is an optical illusion, and has two different interpretations. It is merely an image which is open to be perceived entirely as the viewer wishes to perceive it. Only the cleverest of people can see that.

Indeed in court, only the cleverest of lawyers will realise that that is exactly what is happening; both sides are right, and both sides are wrong.

The case, issues and law under discussion have two very different interpretations and meanings- and outcomes. Aside from questions of perspective and viewpoint, the case for either side is virtually identical- as is the image. Given the similarities of both sides, it is the ability to persuade the audience of their case (be they judge, magistrate or jury), which can be the most important skill for a lawyer in court.

The third possible perspective on the image comes to those who can see the whole picture- and who can think very literally and simplistically. Similarly for lawyers, whatever the outcome of a case in court, the same thing happens. One side wins, one side loses- both sets of lawyers get paid.

Whatever the outcome of the particular case, whatever the rights and wrongs and legal issues discussed, whatever the morality of each side, justice has been done. There has been a full, fair and impartial court hearing, regardless of what the outcome is. Despite the complexities and intricacies of law, sometimes that third, literal and simplistic interpretation can be invaluable.

Perspective: What is Trivial to the Client is Crucial to the Lawyer

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When cases come up for either arbitration or a court hearing, the whole story will come out, in minute detail. Often, this can be a stressful time for all parties concerned, reliving the events, or speaking in open court or candidly about private matters. It is well known that court appearances can be highly charged, stressful, and emotive.

The ritualistic, formality and coldness of the courts does not help; people want warmth and empathy, not a gowned usher telling them what to do. Indeed, the procedures and processes of the legal system are arcane, archaic, and an absolute mystery to the layman. Not so to legal professionals, who go to court as regularly as the layman goes grocery shopping. They are well versed in the labyrinthine ways of court hearings, the drafting, negotiating and carrying out of court orders, the various officials to speak to, and essentially how things are going to work. Indeed, years of practicing law will give an air of indifference to each individual case, a professional dispassionate concern with the facts of each case- even though, to the participants of each particular case, the facts, the timelines, the actual events and allegations are inherently personal and highly emotive.

In consultation with solicitors and barristers, probably clients walk away vaguely puzzled and surprised. They wanted to discuss their case- what happened, why it happened, how they are going to plead, their opinions, their feelings on the matter, their sense of moral outrage. They wanted a sympathetic audience for all the above. What they got was a load of polite questions, searching out details. They were politely steered on to minor, trivial aspects of the case which are irrelevant to the proceedings, and forced to comment or give opinions on them.

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It is a question of perspective. Lawyers do not have the benefit of emotive thinking; rational and logical thinking guides lawyers in their duty to do the best by their clients. As such, they have to proceed by the various statutes, case authorities and legal rules that surround the case, and to ensure that the various criteria are fulfilled. In establishing that those criteria are met, and that the relevant submissions are made under the relevant legislation, the focus of the case may shift in a manner that is perfectly sensible in law, but strange to the layman.

Certain legal principles and facts need to be established; in a property dispute, who has the various legal and equitable titles to the property, and are there any charges against the property in the Land Registry? Certain legal criteria need to be met before a claim has a chance to succeed; for a case of an action under employer’s liability, certain questions need to be answered, starting with ‘was there an employer/employee relationship between the parties? Simplistic- but under legal definition and case law, that is not a straightforward. Some elements of the case might have to be classified or defined a certain way; to establish a defendant’s dishonesty (sometimes necessary in criminal law, according to legal definition), did their actions fall or not fall under the classification set out by the Ghosh test?

All of the above seems faintly bewildering, slightly irrelevant and simplistic to the layman- but the lawyer knows implicitly that such questions, although simple, need to be asked and answers taken in the context of various legal tests and principles, before a case can proceed.

Quite often a case brought to trial can hinge on such a legal definition, a point of statutory interpretation. The consequences can be far reaching, and can totally alter the outcome of the case. For example, in benefits fraud case, the prosecution may be totally confident on the face of the evidence that, in addition to the state money that was defrauded, there is an unexplained six figure sum that the Crown can also claim as money derived from a ‘criminal lifestyle’.

The question has to be asked; legally, what is a ‘criminal lifestyle’? According to Section 75 of the Proceeds of Crime Act (2002)- a person:

(1)… has a criminal lifestyle if (and only if) the following condition is satisfied.

(2) The condition is that the offence (or any of the offences) concerned satisfies any of these tests—

(a) it is specified in Schedule 2 (the offence was covered by Schedule 2)

(b) it constitutes conduct forming part of a course of criminal activity;

(c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.

This is where the prosecution got hot under their wigs. There was great ambiguity as to one of those criteria in that particular case. Upon seeking judicial guidance on this point of law, it was decided that the defendant did not have a criminal lifestyle- even though potentially the reality might have been slightly different. As such, in a dramatic reversal of fortunes, the Crown could not recover all the money- all because of a tiny point of legal definition.

It is in establishing such seemingly trivial details that, often, can make or break a case. The small details which may seem irrelevant to the layman or witness assume great significance at law and in court.

Such a legal approach, focused on tiny details, seemingly perhaps at the expense of the bigger picture of the case, does a great deal in reducing a highly sensitive, emotive and personal situation down to facts and points of law. Although very calculating and clinical in approach, such a methodology and way of thinking has delivered justice for many hundreds of years.

Cuban Missile Crisis?

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Originating from Cuba, the Chong Chon Gang was stopped the other month on the Atlantic side of the Panama Canal, en route to North Korea. The Panama Canal authorities believed initially that it was carrying drugs. A closer inspection revealed no drugs- but instead  a collection of weapons bound for North Korea.

The Cuban government had admitted that there were weapons on board. However, they stated that these were Cuban weapons, being sent to North Korea for repair and return. The question has to be asked, though; if the weapons were not secret, why were they concealed amongst sugar?

The 35 strong crew was uncooperative (they even tampered with the cranes so that the cargo could not be moved for inspection), and the ship was impounded. An initial inspection found military equipment hidden amidst a cargo of brown sugar. North Korea has been demanding the return of their vessel and (now detained) crew- but the demands have largely fallen on deaf ears in Panama, as the authorities are examining the ship and its cargo.

Panama posted images of the weapons, which Cuba claims includes two elderly SAM (surface to air missile) systems, nine missiles in parts, two MiG 21 jets, along with 15 engines for the jets. Although old and obsolete, such weapons can still work, and cause a lot of damage.

Panamanian President Ricardo Martinelli stated that a ship had been seized, initially on the suspicion “that drugs were being transported. We had suspected this ship, which was coming from Cuba and headed to North Korea, might have drugs aboard so it was brought into port for search and inspection [in Manzanillo]… When we started to unload the shipment of sugar we located containers that we believe to be sophisticated missile equipment, and that is not allowed.”

“This is a canal of peace, not of war,” President Martinelli told Radio Panama, adding that “the world needs to sit up and take note: you cannot go around shipping undeclared weapons of war through the Panama Canal.”  At time of writing, Panama has invited the UN to send specialist inspectors to examine the weapons; what will happen as regards that remains to be seen.

Admittedly, there is an element of farce in the whole episode. Obsolete weapons  discovered under a ton of sugar, and the crew going to extreme lengths to bluff the authorities is something slightly out of a Peter Sellers movie as opposed to the real world (but such is the bizarre regime of North Korea). Analysts are not overly concerned about the shipment- indeed, it is as if stifled laughter can be heard.

The real issue is one of sanctions. North Korea has been trying to get nuclear technology for many years. Previous rocket tests show that Pyongyang can launch rockets- but they have yet to acquire a nuclear warhead. Currently, there are UN imposed sanctions as regards weapons imports and exports, and nuclear and rocket material and technology. Such sanctions were only strengthened after its third round of nuclear tests in February.

Economic and trade sanctions and embargoes do indeed have their value; but quite often such measures can be sidestepped by determined regimes, or can be brazenly flouted, as here. If Panama had not suspected drugs were on board and acted accordingly- it is likely that the weapons would have got through.

Whilst most nations respect and adhere to UN resolutions and protocols, there are some that don’t. For the UN to be truly effective, those nations that flout UN resolutions and embargoes need to know that they cannot do that with impunity. The UN and other nations need to take a tougher line, without overstepping the mark. Admittedly, that is is a very  tricky tightrope to walk, and there is no easy way to walk it.

In the meantime, the status quo remains. At time of writing, the Chong Chon Gang remains in Manzanillo, and is being minutely inspected. Panama is waiting for international assistance and guidance as regards the weapons. North Korea is demanding the return of ship and sailors. The US has condemned the shipment, and is assisting. The UN is also getting involved.  Although this shipment has been stopped, and brought to the media’s attention, it is a virtual certainty that Pyongyang  is still trying to get such weapons or nuclear material into North Korea.

It is only a matter of time before another shipment is stopped. Until then, cue the sharp speeches full of outrage, carefully thought out UN resolutions, eloquent articles and commentaries- Pyongyang carrying on exactly as usual.

If the UN really wants to stop North Korea’s nuclear ambitions, it needs to take stronger action. The problem is, what kind of stronger action can such a diplomatic and legal body take?  Realistically, unfortunately, not a lot. As such, the game of North Korean diplomacy continues unchanged- except without a collection of elderly Cuban missiles.

 

This was written a few weeks ago. Subsequent events in Syria only emphasize the point that sometimes there is a limit to diplomacy. At some stage, the UN and Western nations do have to intervene in cases such as Syria, and North Korea’s potential nuclear threat. Few disagree with that. Many disagree as to how to intervene. Such a question is hard to answer- but needs to be answered by the international community.

To Intervene or Not to Intervene?

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Since taking over the helm of the Bank of England on July 1st (Canada’s national day), Canadian Mark Carney, the first foreigner to lead the Bank in its 319 year history, has not proved to be a brash, North American new broom- but he has not unquestioningly accepted the Bank’s methods and approach to UK fiscal policy, either.

Although he has received a lot of support from the Bank’s all powerful Monetary Policy Committee– the support has not been total, meaning that he must be at least trying to implement change in Threadneedle Street, such as forward guidance. A seemingly favourite of Mr. Carney’s, which he used very effectively whilst head of the Bank of Canada, forward guidance involves making a promise about a future monetary policy, particularly interest rates. Consequently,  the financial sector can work with certainty and knowledge as regards future policies, as can industry. Not usually used in Britain, when Mr. Carney made his forward guidance statement earlier this month, he linked interest rates to unemployment, another novel step in Threadneedle Street. He stated that he would not raise interest rates until unemployment fell to 7%; given that a recent set of figures puts unemployment at 7.5%, such a raise could be a long time away.

Crucially, however, due to the lack of support and guidance from the treasury, the Bank of England is increasingly been looked at as an alternative source of such fiscal support, puttting extra pressure and responsability, and therefore duties and an increased role, for the Bank under Mr. Carney’s leadership.

In the regulatory arena, since the new Financial Conduct Authority (FCA) took over financial regulation from the now defunct Financial Standards Authority in April, Chief Executive Martin Wheatley has made a dynamic start. Replacing the headmaster and referee approach of the former agency, the approach of the new regulator is more that of a Wild West sheriff.

The first few months of the FCA has seen respected insurer Swinton Insurance given a record £7.4 million fine, amongst other actions. Recently, Guaranty Trust Bank was fined £525,000 for failures in anti money laundering controls for high risk customers. This is all in addition to coming down hard on banks when consumers have been misled or let down. Dealing robustly with banks over scandals such as PPI mis-selling, and Libor rate fixing, and tackling past banking misconduct, the FCA has shown that it is a regulatory body with teeth, that has the will and the capability to get tough. Such an approach is welcome after years of banking scandals.

By contrast, since he became Chancellor, George Osborne has been behind a wide variety of austerity measures. Such moves have often been criticised- but Mr Osborne has, to his credit, stuck to his plans centred around austerity. Whilst overseeing spending cuts across Whitehall, he has also started some headline grabbing policies, such as Help to Buy. Aside from that, he has been relatively non interventionalist on many economic matters, often to the annoyance of industry. He has given more power to the Bank of England, and has been less inclined to intervene and interfere closely in economic matters, and has been a more paternalistic Chancellor of the Exchequer than Gordon Brown, famed for his micro managing style.

These measures aside, the question is not really have they been effective. That can be argued  convincingly either way. A more interesting question, perhaps, is- was such intervention and increased oversight for the better, or should the banks and trade and industry have been given more freedom and autonomy? Should Threadneedle Street and the regulators have been more hands off? Should No.11 have been more interventionalist during the recent economic crisis?As with many such matters, there is no definitive answer; both approaches have their merits, and their disadvantages

What with the sheer scale of recent domestic economic issues, one thing is certain. The state being both interventionalist and paternalistic simultaneously means that the benefits of both approaches are utilised. The combination of an interventionalist central bank, an aggressive regulator, and hands off political leadership is an ideal approach to tackle such fiscal problems.

George Osborne deserves much praise- not so much for his own fiscal policies, but for his personnel choices for the leading state economic roles. If he is unable or unwilling to directly intervene at a micro economic level, the new key officials are certainly not afraid to do so.

Egypt’s Real Revolution

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In the last few years, Egypt has politically gone from crisis to crisis.

At the height of the Arab Spring several years ago, Tahrir Square in Cairo was filled with protesters and confusion as former President Hosni Mubarak was ousted from power after ruling Egypt after Sadat’s assassination in 1981 until he himself was toppled in 2011.

As the populist uprising played out, Mubarak’s regime was ousted. Elections followed, resulting in Mohamed Morsi being declared Egypt’s first democratically elected President. Responding to the troubled situation still in Egypt, Morsi granted himself temporary unlimited powers.

This caused great unrest, as many felt that Morsi was becoming too authoritarian. Morsi having the power to legislate without judicial oversight or review was particularly contentious for the Egyptian public, resulting in earlier demonstrations against Morsi himself.

Despite Morsi’s attempts to defuse the situation and appease the protesters, the last few months has seen a rapid escalation- and once again confusion and chaos to Cairo.

With the ever powerful military (socially and culturally important for Egyptians) eventually getting involved and siding with the protesters, matters came to head last month. A year after he was inaugurated as President saw Morsi himself overthrown. The military appointed Chief Justice Adly Mansour as interim President, with a mandate to form a technocratic transitional government prior to fresh elections. Despite a resolution to the protests against the Morsi Presidency, unrest still remains. The Muslim Brotherhood, formerly a powerful political force in Egypt, has since been outlawed by the Mansour and military governments. Indeed, Morsi still retains a great deal of support amongst Egyptians.

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The rallies have now come full circle- with pro- Morsi protesters agreeing to his legitimacy, and demanding his reinstatement. Indeed, his son has vocally called for his release and reinstatement. Additionally, the USA also got involved, with State Department spokeswoman Jen Psaki previously calling for the release of the ousted Egyptian President from detention. Psaki urged the military to release both Morsi and members of the Muslim Brotherhood stating that their detention was “politically motivated”.

In Egypt, the last few years have shown that law and order and stability are hard to come by.

The Arab Spring brought more than a voice to the Middle East, and populist uprising. Some commentators remark that it saw a change in the mindset of many across the Middle East, including Egyptians. After successive oppressive regimes, and leaders who repressed the people citing the ‘greater good of a great Egypt’, Egyptians now have found their voice, and are strident in standing up for their rights.

An admirable CNN commentary on the situation Morsi a victim of Egypt’s revolution of the mind carried this quote: “Morsy’s head never lay steady atop the state. The police never trusted him — nor did Christians. The army was suspicious and the business community dubious. Many voted for Morsy simply because they saw him as the lesser of two evils, running against former Mubarak stalwart Ahmed Shafiq”

That neatly sums up public feeling. Essentially, Morsi was chosen because he was the lesser of two evils, and not necessarily he choice of the people as a whole. It is with a changed mindset that Egyptians are now considering their country’s future- and indeed their own future. A sense that they have certain rights, and social and economic prospects, has swept through the people, giving them a sense of – hope. A sense that they can be prosperous, both economically and socially, and that advances in Egypt can be made. A sense that they have a glorious and rich history- which can be translated into an equally glorious future.

After being oppressed for so long, there was a sense that the people did not merely want another authoritarian ruler. Rather, they wanted to choose a rule who better reflected Egypt as a whole, with its mixed religious and cultural traditions. A ruler who would rule the country with the people’s interest’s in mind, with a mandate from the people.

The Arab Spring unleashed upon Egypt a feeling that this was their moment. Their moment to advance, and to better themselves and Egypt as a whole- and to have a say in how their country was to be run, with the intention of putting the people first.

With this being written as many nations and groups in Egypt are demanding the reinstatement of Mohamed Morsi and (sic) his Muslim Brotherhood autocratic government, it will be interesting to see what happens next in Egypt. One thing is certain- the Arab Spring is here to stay in Egypt. That expression does not necessarily mean a series of popular revolutions, but rather a revolution of the collective mind-set of ordinary Egyptians that it is their time to let their voice be heard.

The only question is- are the ruling elite and the military listening? As the events of recent years in the region as whole show, they would be well advised to.

A Legal Education Paradox

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Despite having studied law, it feels like I know nothing. Perhaps not the best admission for a law graduate to make.

Despite having recently finished, it feels like I know nothing, that all of that legal information, knowledge, the tests (Canada Steamship, the rules derived from Milroy v Lord, etc) has somehow disappeared rom my mind. After all, to was an intensive course, and the exam season was the usual cramming session so familiar to students. we did cover a lot of information, and a lot of information was thrown our way.

Those excuses aside- it is worrying that I feel that I know no law. In that, I also mean that I didn’t learn much. Phrases such as ‘but that is beyond the scope of this course’, ‘you will learn that/ cover that further on the LPC/BPTC’, ‘only if you specialise in this area will you need to know that’ and similar were used frequently. It is as if we learned very little law on the GDL.

Although I have studied neither the LPC nor the BPTC (the joys to come), it seems from an outsider’s perspective that it is much of the same. If anything, it is seemingly more the mechanics of law (how to lodge a claim in court, opinion writing, finances and accounting, litigation and similar) that are taught as opposed to the law itself. I look forward to finding out the realities.

For training contracts and pupillage’s, for the most part you are a participant observer. Many firms and chambers have a structured and set training and teaching format for this stage, but that varies from firm to firm, and that is not the approach of all firms. Although taking part in legal matters, seemingly (once again, a future joy to experience) for the most part you are apparently watching and learning. By that stage you are applying the law you have learned; if you are not, then something has gone wrong.

So, if the GDL doesn’t teach you the law, and the professional course supports what you learned previously, when does the student learn the law they need for practice in order to advise clients?

By the time the student reaches their training contract or pupillage, they have learned all the law they need to know.

It is not necessarily learning the details of the law, the cases, the statutes, the rules and tests per se- it is rather in learning how to think. Since day one, without realising it, you have been learning a new way of thinking.

As a law student, you have been learning how to analyse information, get to the fine details and the heart of the matter, and then consider those facts in line with case law and statutes. Above all, whilst the importance of being flexible in thought is emphasised, in considering both prosecution and defence at the same time, in considering how to undermine your own arguments, you are taught one key skill- judgement.

In practice, a key matter is in deciding what to do. Deciding whether to launch an appeal, on which grounds of law to pursue a case, advising your client on the merits of their case, you have to be realistic and know what the likely outcome is. Lawyers have to be decisive enough to answer questions such as what is the judge likely to decide? What is the other side likely to say? Lawyers have to be decisive, and use their judgment as to how to proceed with a legal matter. As someone once said of famous New York lawyer Joe Flom, “he had the greatest capacity for judgment”.

Learning the law itself is something the student only acquires with experience, and in using the same legal principles repeatedly- a bit like riding a bike. One you can talk competently and convincingly about a legal area, using a wealth of courtroom experience and in depth case knowledge, be it salvage or restitution, then you have gone far in becoming an expert or specialist in that field. Perhaps you didn’t learn it at law school- but you put it into practice on a regular basis for a long time.

As one barrister put it, you can easily pick up the knowledge needed for any area of law- if you have the skills to do so. The skill set, analytical thinking, and mental gymnastics required, is something which cannot be picked up so quickly, but one which you gain over time, and with practice and teaching- starting from your first day at law school.

In that respect, I learned all the law that I need to know for practice during the GDL.  Now, that, said with great confidence and assurance,  is what you want to hear from your lawyer.

The Legal Lesson to be Learned… From a Medical Student

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At an event the other day, I got talking to a medical student.

If you think that the GDL is bad- think again! Studying medicine is far worse, and much tougher.

Their training is much more intense, complicated, and much longer. It is also very varied and all encompassing, even to the extent that legal principles are covered. It is mutual; most law students end up acquiring a very rudimentary medical knowledge due to studying clinical and professional negligence.

As we ventured into medical legal matters (an area of common knowledge), I found when some well-known case names and legal principles (e.g. the Bolam test, Bolitho, Wilsher, Bailey v MoD, etc.) were familiar to my medical student. Even though she had a passing knowledge, it was evident that she was annoyed by that area of her studies.

Doctors understandably hate the law surrounding medical negligence. They have to cover themselves at all corners, and the legal profession has come down pretty hard on the medical profession in the past.

It is a question of perspective; when mentioning the cases, she said she was shocked at some of the cases and above all some of the decisions. According to her, they were morally wrong. I was surprised, because according to the law those cases are ‘correctly’ decided- but the courts do admittedly have to set aside morality.

We were looking at the same matter (medical negligence) but from totally different perspectives. She is there to save lives, to do whatever it takes, and has to make rapid assessments and decisions in life or death situations under great pressure and stress. Lawyers are there to assess complicated matters, often highly theoretical, to apply complex and contrasting sets of rules and principles, and to give considered opinions.

In theory, the working lifestyles and working conditions between doctors and lawyers are totally different. Their priorities and preoccupations wildly diverge, and their approach- a product of their respective training- also differs.

In reality, the two professions are actually- very similar. Doctors and lawyers spend many years receiving highly specialised and intricate training in very complicated matters, both in theory and in practice. They both work long hours and days in highly stressful and pressured situations. Attention to detail is critical; one tiny detail missed, and patients die, or multimillion pound transfers or cases are lost. Indeed, top doctors and lawyers both receive six figure salaries, and have similar lifestyles.

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Ultimately, both professions are taught the same thing- to assess a situation, often under pressure, and to deliver an opinion under certain, set criteria. Doctors and lawyers have to make judgements on the situations they are involved with on a daily basis. A barrister has to assess whether a case will be successful in appeal- a doctor has to assess whether a certain treatment will work for a patient. Both professions are taught to think; to analyse a situation, and to give a professional and reasoned opinion that situation.

The only real difference is in priorities. Under the Hippocratic Oath, a doctor is there to use all and every means to ‘do no harm’, and to save life. Lawyers are there to represent their clients to the very best of their abilities, and to uphold the professional standards of the profession and the courts. Doctors tell their patients what to do to get better-whereas the lawyer is instructed by clients, and the professional relationship is slightly different and not so authoritative on the lawyer’s part. Even then, many patients have not taken their doctor’s advice in the past (often to their cost…), or have sought second opinions.

Returning to my medical student, we found we were actually in agreement that much of clinical negligence was morally wrong, but legally right. Although our perspectives and approaches were very different, we both got to the same conclusions.

I wish her and all budding doctors all the very best in their studies and training. It is something I myself could never do, or even begin to understand; as such, their efforts to study in order to save people from often horrific accidents or illnesses are nothing short of amazing.

I sincerely hope I never have to end up in court prosecuting a doctor for simply doing their job and responding to their training. On the other hand, there are admittedly those very few doctors (who bring the rest of the profession into disrepute, as well as causing untold damage by their actions, omissions, and criminal negligence), such as Shipman and Crippen, etc. Now that minority is a different story…

“I sentence you to – whatever the government decides”

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At the Police Federation annual conference in May, the Home Secretary set out a proposal to adopt the (very American) concept that those who kill police officers should  automatically get a whole life sentence, with no (or very little) chance of release.

Although an admirable concept, this simple suggestion is part of a much larger issue; to what extent should the Home Secretary or government interfere with judicial ability to freely set sentences?

Indeed, such a matter itself is merely part of a long, drawn out struggle between judiciary and executive over several hundred years as to who has what powers and rights, and serves to illustrate the balance of power between the state and the legal system.

On the one hand, the judiciary takes great pride in being independent, and in acting as a check on the executive. They see their role as to interpret and apply the law as set down by Parliament (never to create the law). Additionally, it is the responsibility of the legal system to call the government to account if necessary; after all, according to legal philosopher A V Dicey, no one is above the law, not even the government.

On the other side of the argument, the executive claims the ability to govern the nation as the elected representatives of the people, and to exercise the powers formerly exercised by the crown. Although accountable to the nation, and indeed to the judiciary, and subject to checks and balances from other elements of the state, ultimately an elected Parliament is supreme in the current system of government.

Proceeding from such standpoints, the battle lines have been drawn between state and judiciary over the last few hundred years. Although very often finding common ground, common approaches and a lot of agreement- sometimes the two have clashed, and fought bitterly.

The issue over sentencing is but one example; should the government impose rules when it comes to sentencing? Although undoubtedly the remit of the judiciary, there are currently sentencing guidelines for judges, and the Sentencing Council does have oversight of this very matter. Indeed, both judges and MP’s acknowledge that, ultimately, the Home Secretary has the power to alter or ‘suggest’ sentences in certain circumstances.

Getting involved with judicial sentences on a case by case matter is one thing- but introducing a new rule for judges when sentencing convicted criminals (as here) is another.

Even though it is with the best intentions, and with the public safety in mind, by making such a proposal Theresa May has potentially followed in the tradition of Home Secretaries before her by angering the Law Lords by interfering in their domain. Like Lord Chief Justices and Lord Chancellors before him, Lord Neuberger will probably once again have to stand up against this infringement of judicial independence.

Laws change- and legal principles alter to reflect their time- but in some matters, there is no change in the legal world.

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Learning From Both Youth and Experience

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Most people come to the GDL straight out of university, or have taken a year off, or are converting from a different jurisdiction or career stream. Overall, however, the people who choose the GDL are fresh faced and young.

Not so with me (and indeed others taking the course nationwide). It has been several years since I was last in the classroom, and the reintroduction to studying for this mature student has been interesting. It is strange going into a classroom as opposed to an office or place of work. It is odd adjusting to the carefree student existence after several years of structure; working days, working weeks, lunch breaks at certain times, essentially being part of the workforce with all that entails.

As you get older, your responsibilities accumulate; you might be married, have children, pets, mortgage and, bills etc. All the things the young, fresh faced students just out of university have yet to experience- and it will be a shock when they do!

For my younger GDL colleagues, they are mostly living at home, and still enjoy the student lifestyle. Myself and other mature students have to study, and fulfil the aforementioned responsibilities we have accumulated. Additionally, after having a career and deciding to convert to law, you are right at the bottom, a novice once again.

My younger colleagues may talk of times of ‘responsibility and management experience’ earnestly at interviews for that elusive training contract- but they have no concept of what that really means. Running the university squash team and being responsible for the day to day running of a restaurant are two very different things. Worrying about an exam is one thing; what about worrying where that delivery is? If you fail an exam, you can brush it off, re-take or similar. If that delivery doesn’t arrive- your company suffers, resulting in a loss of profits and angry clients.

There are a lot more concerns and worries that a mature student has to face up to as compared to a young student. Even if only by a few years, the perspective is different. Holding up a mirror to Life, a mature student sees things which a fresh graduate doesn’t, and vice versa as their priorities are different. It is with jealousy and pity that the mature student considers the fresh grad. Jealousy of that former carefree life which they themselves used to enjoy- pity that that eager young person will soon encounter the realities and stresses of the Real World and will have to set aside their youthful mentality and energy.

It is then that the mature student can learn from the fresh graduate. Life, even for a mature student, should be enjoyed, not endured. The young ones concerned with partying and a carefree existence can only be an antidote to the seriousness and cares of the mature student’s world. They can teach the mature student how to laugh and have fun again, how not to be wrapped up and concerned with their inevitable worries, stresses and responsibilities.

As is often the case, the young and old need each other. The older mature student can help the young student with their life experiences and knowledge. The young student can teach the mature student that life should be enjoyed, not endured, and full of optimism.

To misquote a French proverb, “if the young [student] knew and the [mature student] could, there is nothing that couldn’t be done”.