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Pursuing a Career at the Criminal Bar – A Fool’s Choice?

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6 March, 2014
Criminal Law, Law & Practice, North East Law Review Blog Competition, Sophie Allinson
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Image Source: http://www.gazettelive.co.uk/news/teesside-news/legal-aid-cuts-protesting-barristers-6472513

– Sophie Allinson (LLB Law, Newcastle University) s.allinson@ncl.ac.uk

“Today our worst fears have been confirmed, another round of cuts, after three years of cuts, cuts and more cuts“.

Nicholas Lavender QC

 Uncertainty is a theme increasing in prominence throughout all practices at the Bar, but none more so than the Criminal Bar. Cuts to the criminal legal aid budget were confirmed yesterday, reducing the funding available by £220 million. Widespread opposition and strong condemnation has been voiced, with Nicola Hill, president of the London Criminal Courts Solicitors Association, damning the confirmation of the cuts as, “a shameful day in legal and criminal justice”. Such a measure of austerity will mean fewer people than ever before will qualify for legal representation, and worryingly, many will find themselves unable to afford access to justice. The closure of several high-profile chambers is indicative of the crisis facing the criminal bar. Barristers of the highest quality are struggling to fill their diaries. Many junior criminal barristers have made it plain that they cannot survive on their wages. Such a crisis begs the question, who could possibly still want to pursue a career as a criminal barrister?

It is true that cases will not vanish, there will always be crime. The law will not cease to operate simply because funding has been withdrawn. Representation, however, is in great danger of disappearing, as barristers seek to make ends meet in other fields of law. This raises extremely alarming questions about the possibility of miscarriages of justice and the upholding of democracy, as quality barristers are forced out. The legal profession has voiced their fury by holding a half-day demonstration. This is the first time barristers have completely withdrawn their labour in support of a cause, with a further strike planned. Those already trained within the profession are struggling to see a viable future for their career. Ministry of Justice figures show that criminal barristers have an average income of £56,000. However, Nigel Lithman QC, chairman of the Criminal Bar Association explains this is before all other costs have been deducted. Lithman argues the number of bankruptcies in the junior bar is increasing at an unheard of rate, with the majority struggling to meet the cost of living.

Junior barristers currently undertaking pupillages at criminal sets have reported annual incomes of no more than £24,000. To put this in perspective, this is equivalent to a basic cleaner’s salary and lower than entry level jobs in nursing, local government or the police. The amount of debt accrued in the years of university and graduate training outweigh the financial reward substantially. It is true that many are doing rewarding work which they are passionate about, yet the truth remains that these students will have financial obligations to meet. The old mantra of sticking with it to reap the eventual reward appears to have been wiped out. Hearings in the magistrates’ court are usually in the range of £50 – £80 and Crown Court work is increasingly scarce. The majority of those at the junior end are still saddled with student debt, combined with rising living costs, particularly on the South Eastern Circuit. The profession appears to no longer be economically viable.

It is true that in times of austerity, every publicly funded area must bear the brunt of cuts. Nevertheless, the cuts announced this week have been criticised as unprecedentedly harsh. The Ministry of Justice made few concessions, despite a sustained campaign emphasising the cut’s irreconcilability with the public interest. Consequently it is expected that skilled and experienced advocates will be pushed away from publicly-funded criminal work. Indeed some chambers have found themselves unable to continue operating. Tooks Chambers, having worked on landmark cases such as Hillsborough (although not as a criminal set), began dissolution in 2013, directly blaming legal aid cuts for their inability to continue.

What do these cuts mean for students? For those seeking a profession as a solely criminal practitioner, the outlook is decidedly bleak. Chamber sets specialising in criminal law rely overwhelmingly on cases funded by legal aid. The steady reduction in this source of income has left a large number of chambers economically vulnerable, and unable or unwilling to provide financial support to their pupils. For several sets, funding for pupils has been entirely withdrawn. The majority of those wishing to undertake the BPTC must now fund the absolute minimum £12,000 tuition fee entirely on their own, with no guarantee of a job upon completion of their training. If only a privileged minority can fund their course independently, surely the criminal bar is inaccessible to the majority of students who cannot justify this financial risk, especially without the guarantee of an income at the end.

However, attempts to support those who still seek a career at the Bar cannot be overlooked. The Inns of Court have pledged significant financial contributions in an effort to encourage chambers to continue offering pupillages in the short-term. The “pupillage matched funding scheme” will provide 50% of the fees offered to trainees by chambers. James Wakefield, director of the Council of the Inns of Court insists that the decreasing availability of opportunities for hopeful barristers will be tackled by the funding scheme. Of course, the introduction of this funding will prevent the profession from dominance by the financially privileged. On the face of it, those who cannot afford the onerous costs of the BPTC should not be deterred, as there will still be financial assistance available during training.

However, whilst the scheme may keep the opportunities for training open, what follows after that? Ultimately, with less paid work on offer for junior barristers, what good will a pupillage be? This has been acknowledged by the Inns, who have announced a review of the scheme in 2015.  Furthermore it has been stated funding may be withdrawn entirely if the scheme proves unworkable. Critics of the proposal, including Nicola Hill, have already pointed out that the result will be an abundance of qualified junior barristers, fighting for the few remaining cases available. Whilst such a scheme may be successful in ensuring students are not deterred from undertaking training, it will be unsuccessful in finding these students work when they need it.

Nevertheless, during such times of uncertainty, it can only be a good thing that the doors to the profession are being propped open for as long as possible, denying them the chance to slam shut infinitely. The economy is recovering, albeit is slowly and incrementally. Whilst it is unlikely that the Government will restore the legal aid budget in its entirety, alternative courses of action will develop over time. Chambers specialising in criminal law will adapt to survive. It is expected that many sets will branch out into other areas, pursuing cases in fraud, bribery and regulatory law to bring in stable fees. This will certainly reassure those who plan on becoming a criminal barrister, however it must be noted that the type of casework is likely to be less socially rewarding than it has been over previous years, as the focus is changed. Those who were once drawn to the criminal bar to pursue ideals such as ‘innocent until proven guilty’ will find themselves working towards substantially different mantras.

Ultimately though, it is argued that it would be naïve to ignore the fact that the Criminal Bar appears to be a sinking ship. With those already in the profession being compelled to make the choice between abandoning, or being forced to walk the plank, students who are yet to finalise their career choices would be well advised to stay away from the profession.  To those already at the criminal bar, the choice is clear-cut, leave voluntarily or wait to be forced out. Huge financial risk is unlikely to be outweighed, as the potential for reward is being increasingly reduced, with very little indication of an imminent return. There will always be crime, thus there will always be cases. But the availability of these cases, and the money gained from undertaking the enormous level of work demanded appears to render a choice to pursue a career as a criminal barrister as nonsensical. It is a saddening truth to realise that the criminal bar is no longer a realistic option for students with aspirations to become a barrister. With this said, it can only be hoped that as the economy commences its recovery, the legal sector may slowly begin its revival.

R V Brown: Where are we now?

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6 March, 2014
Criminal Law, North East Law Review Blog Competition, Timothy Wilson
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 Image Source: http://thestudentlawyer.com/2013/03/21/r-v-brown-20-years-on/

– Timothy Wilson (LLB Law, Newcastle University) t.wilson3@ncl.ac.uk

Most law students are familiar with the infamous case of R V Brown, in which several homosexual men filmed themselves consenting in sadomasochistic activities. For the faint of heart, I will exclude details of the acts but they were very extreme. When this tape accidentally found its way into the hands of the police, they were all arrested and charged with Grievous Bodily Harm (GBH). Under s.20 the Offences Against the Persons Act 1861. The House of Lords eventually held that it was not in the public interest for the court to allow members of the public to wound each other “for no good reason”.

The attitude of the majority is best summed up, I feel, by Lord Templeman: “Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”, though it must be mentioned that a huge amount of the judgment focused on the fact that the activities were homosexual. It being considered a “comfort” that one of the “victims” had “settled into a normal heterosexual relationship”. Lord Lowry also continually stressed that he would not allow an exception for “sado-masochistic homosexual activity” throughout his judgment.

A running theme was comparisons made to prize fighting and ordinary sports and boxing. Prize fighting was illegalised because it was not seen to be safe or within the public interest, yet other sports were allowed. This was because they were seen as more noble pursuits but mainly because it was not against the public interest, a main consideration for the court. That the latter has a referee to prevent matters from getting out of hand was also a justification.

The appeal against the previous convictions was passed by a bare majority and so it is useful to see what the dissenting judges had to say on the matter. As Lord Mustill points out early in his judgment, that the men in question would have already have convicted for sexual offences under the Sexual Offences Act 1967 (they were spared because of a statutory time limit) is easily overlooked, however since the Equality Act 2010 came into force, this is no longer an issue to write about, just something that we can sadly shake our heads at in hindsight. Lord Mustill focuses heavily on the 1861 Act itself and wonders whether it can account for activity which did not involve any aggression, brutality etc. against the person but was instead more for the benefit of the person. He also wonders whether the makers of the Act even imagined it could cover such bizarre circumstances.

In considering various cases, Lord Mustill comes to the conclusion that there are so many exceptions to the general rule that it is hard to decide where the case fell. Lord Mustill looks at the case in very narrow spectrums. The topic to focus on is “Fighting” which eventually comes to the conclusion that the courts have veered from earlier decisions in some cases and made a public fight legal because of consent but illegal because it wasn’t in the public interest for people to fight in the street in the case of Attorney-General’s Reference No. 6. Lord Mustill believes that “circumstances must alter cases” far too much for the act to simply be illegal until something else says otherwise.

Lord Mustill didn’t think that the consensual infliction of harm should be illegal under the 1861 Act simply because it is just another violent act. He also distinguishes this case with prize fighting, on the grounds that prize fighting was illegalised because of its inherently disruptive nature and the policy at the time of wanting to prevent this.

Finally the issue of public interest was raised. Lord Mustill made it very clear that this should not be decided on the basis of what was morally right, a view that, from their general demeanour, it could be said that the majority did not share. It is not that he found the actions moral in the slightest; he just didn’t find them a question for the criminal court to decide. He then went on to say that the question was not (paraphrased) “should sexual acts be given special protection” but instead, “should they be actively given condemnation”. Lord Mustill also recognised that given the ritualistic nature of the acts, the risks of serious injury were severely lessened, though if such injury did arise then it would be treated as any other.

There are numerous cases where the decision has been distinguished from “Brown” for seemingly arbitrary reasons, specifically R V Wilson (pages 270, 271 and 273). In this case, the defendant heated a knife and branded her with his initials with her consent. However it was placed in the same category as getting a tattoo and so the defence of consent applied. The courts also made the point that it was not the duty of the courts to interfere in the matrimonial home. The sheer hypocrisy of this decision, in the same year as Brown, should be painfully obvious.

There are other considerations I would like to focus on, especially with reference to sports. Simply, sports are dangerous. People die in sports, bones are broken and some sports exist for the sole purpose of allowing a man to fight another man, yet all is excused by consent and lack of aggression. For example, in the case of Condon V Basi (pages 867 and 868), a foul tackle resulting in serious leg injuries in a football games was only found to be unacceptable because the defendant wasn’t being careful enough. From personal experience, whilst practicing martial arts, my sparring partners and I suffered injuries ranging from broken noses, cuts, unconsciousness and even a broken wrist. However it would appear that because we all took reasonable care not to do those things and because we all consented to the risk, there can be no hope of prosecuting any of us, despite serious injuries.

It is also worth pointing out that the distinction made by the courts involving the lack of a referee is somewhat ludicrous for similar reasons. There was a “very experienced Class 1 referee” in Condon, there were instructors watching over my group and yet injuries still occurred. I would argue that the use of a “safe word” is a far better indicator of when the activity should cease than an outside observer. Pain thresholds differ with people after all.

Here is the crux of the argument though. Though the last legislation passed on this issue was only in the Criminal justice and Immigration Act 2008 in s.63 and s.66, only criminalising vaguely “extreme pornography” and legalised the defence of consent, so long as it was possible to consent to such a degree. Since this time, a number of significant events have occurred. Love it or hate it, the shockingly successful book series “Fifty Shades” dragged the issue into the public eye and it is safe to say that the idea of such actions were somewhat normalised as a result of this success. Shortly after this, the conditions of sadism and masochism were cleared from being an indication of mental instability in the Diagnostic and Statistical Manual of Mental Disorders (DRM5), a prominent publication on the subject. Perhaps most significant of all, in early 2013 Stephen Lock was acquitted by a jury after engaging in sadomasochistic activity. Whilst it was only within the Crown Court, this is a strong indicator of changing attitudes and the defendant drew the comparison to a bad tackle within a game of football as well. These evens show just how far the courts and society have come when a judge is happy to allow a jury to acquit on such reasoning.

This is by no means a complete account of the case for and against such activities, nor is it even a complete summary of Brown but I feel that the points surrounding changing attitudes and irregularities have been covered.

In conclusion, it can be safely said that the reasoning used with Brown is now quite outdated, despite only being 20 years ago. Since then society has become less concerned about differences in sexuality and such acts are no longer scientifically condemned. I do not advocate the domestic abuse portrayed within the book series “Fifty Shades” but nor can I say that two (or more) consenting adults should be at risk of prosecution for private acts no more dangerous than a football game. Given the evidence, it almost seems inappropriate for the courts to have the final say in this matter, given how inconsistent they have been so far. If any solution should be found, I agree with Lord Mustill’s judgment that would be Parliament the best body to decide, after very careful consideration of evidence and attitudes that may be so far unknown to them.

Shareholder Value or Stakeholder Value, which one shall be in favour of? The best beneficial approach is to harmonise them!

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6 March, 2014
Corporate Law, North East Law Review Blog Competition, Phuong D. Nguyen
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Image Attribution: (By RMajouji at en.wikipedia [CC-BY-2.5 (http://creativecommons.org/licenses/by/2.5)], from Wikimedia Commons)

– Phuong D. Nguyen (LLM International Business Law, Newcastle University) p.d.nguyen@newcastle.ac.uk

I. Introduction

Within the context of corporations, the crux of the matter at issue lies in the concern of what the optimal objective of companies is, “for whose benefit are the managers of a company to run the company” (Andrew Keay, The Enlightened Shareholder Value Principle and Corporate Governance (1st edition, Routledge, 2013), 15). This relates to the two noteworthy theories related to shareholder value and stakeholder in corporate governance, whether either of them should prevail. According to the spirit of the latest UK Corporate Governance Code, with the aim of reaching the target of good corporate governance, the managers of companies shall act in favour of its owners (shareholders), concomitantly give consideration to all stakeholders in terms of their interests (Justine Simpson and John Taylor, Corporate Governance, Ethics and CSR (1 edition, Kogan Page Limited, 2013), 105). Hence, apparently, under each theory, profits of all of members of companies are worthily considered. In a general view, the most favourable objective of companies is to serve the interests of both shareholders and stakeholders (Simpson J and Taylor J, at [121]). This paper work will lay down some major points regarding the two cornerstone values in corporate governance in order to sharpen the perception why both should be taken into account and harmonized with each other to fortify the general development of corporations.

II. Shareholder value – Why shareholder value should be taken into account in the light of shareholder theory?

In the case of Dodge v Ford Motor Corp (1919), shareholder value was highlighted by the Court as “business corporation is organized and carried on primarily for the profit of stockholders.” With the primary emphasis on the stockholders’ interest, the managers were censured for not meeting the requirement of operating the company as a business corporation according to the charter. The concept of shareholder value theory, also known as “shareholder primacy theory” or “shareholder wealth maximization” has been pervasive and determined as the aim of large public corporations, certainly as prominence since 1970s. (at [370]) The theory of shareholder value was emboldened as “the orthodox assumption” by Adolf Berle and Gardiner Means as the exercise of powers conferred to management was based on “the benefit of all of the shareholders as their interest appeared”. (at [373])

The shareholder value has been created to protect the remuneration of shareholders who are considered as the real owners of companies. As “the shareholders receive residual earnings in the form of dividends by virtue of their contract” which may be reinvested in companies, nonetheless, the share might come back to the central agent not by its origin, hence, “in no case, either legally, contractually or statutorily, does profit belong exclusively to the shareholders.” (Michel Aglietta, Antoine Reberioux, Corporate Governance Adrift: A Critique of Shareholder Value (Edward Elgar Publishing Limited, 2005), 33).

­On the other hand, this also links to the agency theory which is radically discerned that “the managers or directors are agents for the investors or shareholders as beneficiaries or principals” since they are conferred with the principals’ money and powers to generate profits, increase the value of investment for their investors. (Simpson J and Taylor J, at [25]).  Nevertheless, in practice, it hardly implies that the objective of the company is to manage in the exclusive interest of its shareholders. (Aglietta M, Reberioux A, at [34]). Since the objectives and targets of the shareholders and the benefits of the managers may be in conflict, thereby, naturally the managers may make decisions that benefit them the most which may not be the most profitable choice for their investors. (Simpson J and Taylor J, at [25]).

In addition, compared to stakeholders like employees whose benefits are assured from the approach of taking stock and salary payment, notwithstanding, “the shareholders do not get anything because they only receive any repayment of capital if the corporation is solvent” (at [400]) or merely have dividends whilst the company is prosperous. As being the risk-bearers having residual claims in the company, they are highly likely to be at risk, thereby, the risk-bearers should take precedence and optimum in the distribution of power and profit. Hence, the allocation of interests in favour of shareholders might be in accordance with the basic principle of externality management. (Aglietta M, Reberioux A at [34]).

In the other camp, under the theory of shareholder primacy, in respect of the mentioned theory, managers are employed by the principals to operate the business. Hence, the shareholders are the best suited to guide and discipline managers in the conduct of their powers and duties (at [380]). Moreover, inevitably, the operation of corporations would be well-run as “both the managers and the non-executives are fully accountable to shareholders for what they do in running the corporation’s business.” (at [381]). The shareholders absolutely have the rights to intervene the business operation as well as other lawful rights which are not bestowed on stakeholders (at [448]), for instance, if the managers or directors breach their duties, accordingly, a shareholder can bring derivative actions against the managers, directors.

III. Stakeholder value – Why stakeholder value should be taken into consideration under the stakeholder theory?

It is ostensibly apparent that if a company merely concentrates on delivering high shareholder value today, it may tend to be on the brink of collapse tomorrow (at [449]). In other words, firms of which the sole concentration is to maximize profits to shareholders may diminish the wealth currently created by the company. Moreover, as the shareholders are also listed as a special genre of stakeholders (at [448]), thereby, taking other values into consideration is a wise approach that the company establishes and sustains its wealth capacity for the future. It is unexaggerated that corporate success is contributed by shareholders, however, it is also significantly dedicated by stakeholders who are significantly affected by the actions of companies (Keay A, at [42]). Thereby, the stakeholder theory holds that the cardinal responsibility of a corporation should not solely maximize shareholder wealth as with the contribution towards companies, the stakeholders deserve protection, their interests should be taken into account by managers (Keay A, at [42]). Comprehensively, “the company is an agent that serves all stakeholders and not just the shareholders.”(Florent Noel, “Downsizing, Financial Performance and Corporate Social Responsibility” in J. Allouche, Corporate Social Responsibility (Palgrave Macmillan, 2006), 69)

Additionally, stakeholders, in the essence of short-term advantage, are much more susceptible than shareholders “who have more of an opportunity” to get rid of corporations. (at [379]) As “they can “do the Wall Street Walk” and sell their shares on a stock exchange, whilst other stakeholders are not able to exit so easily. (at [379]) Furthermore, it is ostensibly reasonable that shareholders, based on the target of profits, may somehow sabotage and deteriorate the generally progressive growth of companies by merely concentrating on gaining short-term profitability. Hence, the assurance of long-term success and profitable growth of companies by balancing the interests of all members including both shareholders and stakeholders are necessarily required (Simpson J and Taylor J, at [120]). Accordingly, pursuant to the UK Company Act 2006, directors are obliged to promote the process of the company by acting in good faith to create benefits for the corporation’s members and also in the respect to the interests of employees, a good rapport with suppliers, customers and others, the impact of the company’s operations towards the community and the environment, the maintenance of reputation for high standards of business conduct and the fairness of acting between members of the company. (Article 172(1)).

III. Whether there should a dominant value in corporate governance?

It is plain that companies are considered as “profit-making” corporations (Keay A, (at [3])), in addition, concurrently as the most critical institutions “for social wealth creation in capitalist economies” [at 195]. It has been for several years since the early years of twentieth century, shareholder value theory and stakeholder value theory have been underlined to answer the query based on what purpose that directors should manage their companies [at 448]. Blatantly, it might be a mistake to separate the shareholder theory and the stakeholder theory as rivalling in the day-to-day management of companies since the maximisation of profits is emanated from well-managed companies and how companies are well-managed is based on the idea of stakeholder theory. Correspondently, they should be appropriately emerged to be taken advantage of positive and beneficial advantages – generally, a so-called proper constellation of shareholder primacy and stakeholder theory.

IV. Conclusion

In general, there is a predicament which is that “directors can’t serve two masters” (at [74]). However, the advent of a further elaboration of shareholder value – “enlightened shareholder theory” – radically grounded on the conventional stewardship theory – differently underlines the contentment of stakeholders’ benefits to consolidate the long-term survival and prosperity of corporations (at [74]). This is also what the UK Company Act inclines to pursue to reinforce stable and long-term corporate governance.

Putting Youth Rehabilitation at the Heart of our Attention

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5 March, 2014
Ashleigh Hamidzadeh, Criminal Law, Human Rights Law, Law & Practice, North East Law Review Blog Competition
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-Ashleigh Hamidzadeh (LLB Law, Newcastle University) a.t.hamidzadeh@newcastle.ac.uk

Prison – population in the UK is around 83,151 (Ministry of Justice 2013) – has evolved since the 19th century into the most arduous form of punishment in the United Kingdom. The number of detained young offenders is 1,350 (Transforming Youth Custody – government response to the consultation, transforming-youth-custody-consultation-response 2014). What is the role of punishment? Deterrence? Incapacitation? Or rehabilitation? The Coalition Government is “Putting Education at the Heart of Detention.” So, this blog is putting youth rehabilitation at the heart of our attention.

Punishment today is a strategy of crime: Durkheim believed the role of punishment was to enforce the collective conscience as well as instil the importance of social solidarity. The method of doing so is, punishment as a deterrence. The punishment faced by an offender for committing a wrong doing discourages future offending. Deterrence in action: The Conservative Party Manifesto 1979 promised a “Short, Sharp, Shock” programme to youth offenders. Another approach is incapacitation, the policy of punishment to remove the offender from the capacity to offend once more.

How to control in a detention centre: Foucault, would argue that disciplinary power is the most dominant, this is when power can be held over both the body, and increasing the mind, predominantly through the use of surveillance. Foucault describes this, by using concept of the “Panopticon” (Foucault, 1995). The Panopticon was a style of watchtower in prisons, in which prison guards were able to view all prison cells, however, the prisoners were not aware of when this would occur. Resulting in the conformity of prisoner’s behaviour. Foucault describes this as “Self Surveillance”, which subsequently results in “Self Discipline”.

Punishment as an opportunity for rehabilitation? The enactment of the Crime and Disorder Act 1998, under section 41, established the Youth Justice Board (YJB). This body operates to reduce reoffending and provide support of the victims of crime, as well as assisting the Youth Justice System. Section 41 (5) (b) (iv) provides that the Youth Justice Board must take “the steps that might be taken to prevent offending by children and young persons” (Crime and Disorder Act 1998, s.41 (5) (b) (iv)). The then Home Secretary, Jack Straw MP, described the department as necessary in the operation of the “fractured and immature youth justice system” (Travis 2011).  The Youth Justice Board is still in operation today, with between “10 to 12 members, which are appointed by the Secretary of State.” (Crime and Disorder Act 1998, s.41 (3)). As of 2012 and 2013 the net expenditure of the Youth Justice Board was £336.9 million (Grimwood, Strickland, 2013).

In the United Kingdom today we have seven Young Offender Institutions, aimed at rehabilitating young offenders, aged between 18 – 21. However, with currently, 71% young offenders reoffending within 12 months of being released, there is substantial need for reform. ‘Her Majesty’s Inspectorate of Prisons’ (HMIP) in an annual report in 2011, stressed the need for all youth offenders to “be involved in activities that give them the habits, experience and training they need to get and hold down a job when they leave custody” (Allen 2014).

What are “Secure Colleges”?

The Legislation: Under the proposed Criminal Justice and Courts Bill, clause 17 grants the Secretary of State the competence to “the power to provide secure colleges in

England.” (Criminal Justice and Courts Bill Fact sheet) Neighbouring ‘Glen Parva Young Offenders Institution’, the first “Secure College” has been planned to be constructed by 2017, holding over 320 young offenders (Casciani 2014), aged between 12 to 17 years old. The primary attention of these detention units will be on the need for education. The need for educational assistance can be demonstrated when considering that 86% of young offenders, who are currently in Young Offender Institutions have, at one point, been excluded from their school. “Transforming Youth Custody – government response to the consultation”, illustrates the urgent need of education for young offenders, with “over half of 15–17 year olds in YOIs have the literacy and numeracy level expected of a 7–11 year old.”

“We need to make sure that time spent in custody is time well spent. We need to turn these young people into better citizens not better criminals…” (Travis 2011) Nick Clegg has described these “Secure Colleges” as necessary to teach discipline and future life skills.

A previous example of education being used as a catalyst deterring young people from crime can be shown in the American study of the ‘High Scope’. “The Perry Pre School” (Highscope) was a community programme aimed at crime reduction. The experiment took a group of economically disadvantaged African American children in Michigan, and taught an intellectual experimental programme, as well as visiting the families of the children. The experiment continued into adulthood, discovering that those children involved in the project had fewer lifetime arrests, as well as being in education and employment (Schweinhart L. J. 2003. “Benefits, Costs, and Explanation of the HighScope Perry Preschool Program” 2003).

However, the Standing Committee for Youth Justice, have been in much disagreement with the proposed reforms. Penelope Gibbs, the Chair of the Committee, argues that the principle target for change is not the education of youth offenders, but further social causes, and has been quoted as stating: “A more holistic therapeutic model is needed rather than a gimmicky repackaging of our current costly and broken approach to child custody”.

Similarly, The Labour Party’s Sadiq Khan (Shadow Justice Secretary), commented on the need for education, but added that this proposal was insufficient in itself: “Education is crucial in reforming criminals but building one new establishment in the future will do little to reduce the reoffending rate across the rest of the country.”

The aim of “Secure Colleges” is to strive towards greater educational attainment within detention facilities for young offenders, the Secretary of State for Justice, Chris Grayling has stated that “We want education with detention rather than detention with some education.”  (Sellgren 2014).

On the 24th of February, the House Commons passed the Second Reading of the Criminal Justice and Courts Bill. The implementation of “Secure Colleges” proposes a need for better education in the provisions of youth offender’s facilities. However, the budget for the reform has been set at less than £100,000. This is considerably lower than the current yearly spending on Youth Offender Institutions, which is approximately £178,000 (Casciani 2014). The future of the “Secure Colleges” will, for now, depend upon the Criminal Justice and Courts Bill Committee Stage reading.

 

The Consumer Rights Bill: Progression or Regression?

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4 March, 2014
Consumer Law, Georgia Mitchell, North East Law Review Blog Competition
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Money-pounds

– Georgia Mitchell (LLB Law, Newcastle University) g.e.mitchell@ncl.ac.uk

The Consumer Rights Bill: A piece of legislation which aims to modernise and simplify consumer protection law whilst clarifying consumer rights. The main purposes of these amendments are to make consumers better informed and protected when purchasing an item and entering into a contract. Supposedly, the draft bill will enlighten customers about what they can expect when purchasing an item; whilst also establishing what they can do when goods, services or digital content do not meet the requirements set out in the piece of legislation.

Acclaimed as the most radical overhaul to consumer law for over three decades, the draft bill was announced in the Queen’s Speech in May. Nonetheless, as it still has to undergo parliamentary scrutiny in the Commons and the Lords it is unlikely to become law until early next year.

Regulatory expert, Pauline Munro recently remarked that, “Not only does the draft Bill bring consumer law into the digital age…it will also provide clarity in respect of the rights of consumers to redress”. The new bill has generally been seen as a necessary and positive piece of legislation and should, in theory, make for a better and more efficient system within consumer protection law.

This being said, it is necessary to explore whether the bill actually does protect consumers sufficiently. If so, are these implemented safeguards too restrictive on businesses? Do regulators have too much power over businesses? Moreover, are consumers even aware of their rights?

The bill visibly outlines the protections and rights of the customer. S 32 (1) of the bill clearly sets out where liability cannot be excluded or restricted. Whilst these prohibitions are welcome, some of the protections provided in the bill are arguably not sufficient, rendering the utility of liability limitation somewhat limited. Little improvement has been made to preceding legislation. For instance, it is argued that the term ‘satisfactory’ is too broad, allowing companies to continue to sell products that are not made to a sufficient standard. Many consumers will remain to receive low quality goods/services without the option to hold the sellers accountable by receipt of a refund or some other type of compensation.

However, a more commonly held view is that the draft bill has the potential to be detrimental towards businesses, giving regulators too much authority. It appears to award much wider powers to regulators, such as the Trading Standards Institute, to take action following suspected breaches within consumer law. A Freshfields note highlights that under the bill, regulators are entitled to go to court to get an order to ensure a business compensates consumers. However, the regulators only have to show that the supposed breach has “more likely than not” been committed, in comparison with the “beyond reasonable doubt” threshold that regulators must comply with if they were to seek a fine. The difference in the required level of proof is somewhat strange: the compensation which would be received in a national case would be appreciably greater than that of a fine in a criminal prosecution. Therefore, compensation should surely necessitate a high level of certainty in whether a breach has actually occurred. Further from this, regulators can also enforce compensation without even going to court. Many traders are being coerced into providing compensation without even being allowed the opportunity of fair discussion. Court is not typically an ideal situation for traders/small businesses – it can provoke bad publicity and is generally a very costly process.

However, the restricted approach regulators adopt over companies unquestionably possesses an array of positive improvements. The draft bill, combined with regulators’ more stringent approaches with companies, is successfully reversing recent price hikes. Energy regulator, Ofgem, has told five of the six electricity distribution companies to cut costs for consumers. It has rejected their investment plans, believing they should be able to “deliver more for less“. This decline in price is a very positive sign for consumers and reflects that regulators are able to successfully control larger suppliers to protect consumers further.

This considered, it should be asked whether the bill benefits businesses at all.

The main gain for business is simplicity. Eight separate regulations and pieces of legislation are being combined into one whole act. “Statutory guarantees” are now replacing implied contract terms: the aforementioned s 32 ensures sellers must guarantee that goods are of satisfactory quality, fit for their purpose and match any descriptions. These ‘guarantees’ further simplify the law and make consumer rights clearer and definitive, as opposed to the current ‘implied contract’ terms which have proved to be vague and inconsistent.

Unfortunately, alongside the advantages, the improved clarity of the new rules can also act as a detriment towards companies. For example, previously, buyers had to return goods within a ‘reasonable time’. This proved to be unclear. The draft bill now states that if a customer returns faulty goods for repair but the goods become faulty again in the future, they will be entitled to a full refund. This new rule does not assert any particular time period. The term ‘reasonable time’ is not mentioned in the draft bill. It can be assumed that provided a product has become faulty again, (regardless of the length of time that has passed since the original purchase) the consumer will still be entitled to a full refund. Despite being clearer, consumers have the potential of taking advantage of the more flexible statutory rights, returning items months after purchase which may have been damaged purely through fault of their own. Moreover, online retailers will be required to give consumers a fourteen day “no questions asked” right to return goods. Considering that the current rules permit only seven days, this is another example of consumer’s rights becoming stronger and prone to abuse.

Currently, a majority of the public remains unaware of consumer law protection. New research shows that Brits are ill-equipped and poorly-informed when it comes to knowing their consumer rights. “While 4% claim to have a strong grasp, almost half (47%) admit to being in the dark, leaving them at risk of losing out. As a result, uSwitch is urging the Government to not just simplify and modernise consumer law, but to now ensure that consumers are educated about their rights too”. The draft bill will hopefully improve this issue and provide for a more comprehensible piece of legislation; ensuring that many more consumers are aware of their rights. The Consumer Rights Directive (which was passed by the EU in 2011) states that all EU member states must have the directive implemented by the end of 2013. Considering this is an EU directive, the UK is not awarded much flexibility in altering the law to ensure alignment and consistency of the rules across all EU member states.

The current lack of knowledge could be a result of the lack of media coverage on consumer law or simply due to the public’s apathetic stance towards this area of law. A lot of people are discouraged by the thought of reading such legislation; either due to the time-consuming nature of it or simply because they believe they would not comprehend the wording. This could be a potential opportunity for businesses to exploit customers by excluding themselves from all liability within their contracts, without consumers even noticing. However, online retailers will have to inform consumers of their rights upfront. If they fail to tell the consumer about their rights then the consumer has the option to return goods for up to one year after purchase, as opposed to the aforementioned fourteen days. This is a minor but significant step to improving the situation and making consumers more aware of their legal rights.

Furthermore, the government is also improving this situation by delivering better information and protection to consumers, by publishing reports on consumer empowerment strategies and reorganising the ‘consumer landscape’ to make consumer organisations (such as the Citizens Advice bureau) simpler to understand and more efficient. Although these actions are a positive start, it could be argued that alterations in legislation alone may not be the best vehicle in educating consumers across the board. Whilst the improvements in the draft bill should be commended, it is important for consumer information to be delivered through means other than directives and reports alone.

Some key legislation has unusually been excluded from the bill. Changes are needed to implement the EU’s Consumer Rights Directive and to also implement legislation to “provide new rights of redress for consumers who have been victims of a misleading or aggressive practice.” The government has decided that these two sets of changes will be brought forward as secondary legislation and will not included in the draft Bill. The reason to this remains unknown and perhaps demonstrates that consumer law still remains slightly unclear. Overall, despite the draft bill proving to be slightly too harsh on businesses, it indisputably condenses the consumer law and for the most part clarifies it for companies and more importantly, for consumers.