Miller v DPP 2018 EWHC 262 (Admin) emphasises the importance of appropriate adults at the police station in relation to those with mental health disabilities and provides a welcome example of s78 Police and Criminal Evidence Act 1984 (PACE) being used to exclude all evidence obtained in breach of the relevant provisions of the PACE Codes. In relation to an allegation of failing to provide a specimen, where a man was seriously disturbed so that a test for the proportion of alcohol in his body could not be carried out, and for whom appropriate adults had been called on other occasions because he had learning difficulties and was autistic, it was wrong not to do so again. In the absence of an appropriate adult the evidence of the drug-drive procedure should have been excluded under s78 PACE 84 and the defendant acquitted. He case differed from one where a positive test had been given and it was then sought to exclude the result. A specimen might have been provided had an appropriate adult been present with the necessary communication skills. It is thought that the outcome might have been different if the police had attempted to find an appropriate adult but the delay in their attendance had become too great.
The case also dealt with an important procedural point, where a court had given a binding ruling on the law under s8A Magistrates Courts Act 1980, but the trial had been concluded much later. The 21 days for the application to the court to state a case ran from the date of conviction and not the earlier hearing.
Concerns about disclosure of items that may reasonably assist the defence are now widespread. The content of Facebook accounts can be particularly important and may not be accessible by the defence. This issue was explored in K v R  EWCA Crim 2214 where an appeal very substantially out of time was allowed. The appellant appealed his conviction for raping A. The prosecution had produced evidence of his Facebook messages with A. A had accepted that these conversations were edited, as she had deleted some of the messages. The appeal was allowed because fresh evidence in the form of the full record of the Facebook messages had only become available after the trial when the appellant had become aware of, and sought assistance to locate, a message archive on his Facebook account. The selective excerpts of the messages which were available at trial had given the jury a misleading impression of the appellant’s interactions with A.
In R v R Ahmed 2017 EWCA Crim 1515, the court held that the judge had been wrong to hold that bad character material could not be admitted about a person who was not a witness in the case. It provided a possible motive for the complainant, that person’s sister, to lie about her sexual allegations.
Sentencing – burglary
The identification of a dwelling house burglary is of great significance because of the minimum sentence that is required for a third such offence, unless it would be unjust in all the circumstances. In Hudson v CPS 2017 EWHC 841 (Admin) the court held that this is essentially a matter of fact and degree. The term does not require that the building be occupied on the date of the entry if it is still furnished and ready for use as a home, even if owned on a buy-to-let basis. However, a different conclusion might be reached if there had been no letting for a substantial time.
It is now very unclear whether the communal area of a block of flats is to be regarded as a dwelling house. It certainly is less serious than an entry to a residential area and could make a minimum term unjust. The court thought it was not a dwelling in R v Ogungbile 2017 EWCA 1826. This means that solicitors will need to check criminal records carefully with their clients to ensure that a burglary has not been incorrectly recorded. An offence that may appear to be indictable only may, in fact, remain an either-way offence.
For terrorist offences sentenced on or after 27 April a new guideline is in force. The additional guidance on ancillary powers is particularly helpful, For cases sentenced on or after 1 June the guideline on offensive weapons and bladed articles will apply. It is in three parts. It deals with possession offences in Part 1. Part 2 deals with threats with such items and Part 3 contains a self-contained code for sentencing children and young people. A second such offence carries an obligatory minimum sentence, unless it would be unjust in all the circumstances. The guidelines contain specific guidance on when such circumstances, as to the offence or the offender, may arise.
In R (Gibson) v Secretary of State for Justice 2018 UKSC 2 the Supreme Court considered the default term for non-payment, when interest had accrued to the original amount of the order. The correct starting point for the giving of proportionate credit for part payment is the sum stated in the Crown court order and not that figure with accumulated interest. The liability for the interest remains but cannot be enforced by a default term.
In R v Mills  EWCA Crim 944, while strongly disapproving of the judge’s reasoning, the Court of Appeal held that it does not have jurisdiction to amend the default term of 18 months imposed because that term and the confiscation order itself, as to which there is right of appeal, are separate from each other. S31 Proceeds of Crime Act 2002 was enacted with knowledge of earlier decisions to that effect.
The court should not have issued a warrant of commitment in the case of (R (Sanghera) v Birmingham MC 2017 EWHC 3323 (Admin). The enforcement provisions of the Magistrates Courts Act 1980 applied and there had been no finding of culpable neglect or wilful refusal; other methods of enforcement had not been considered. The realisation of the assets behind the confiscation order could often not be achieved within the extended three months period and was known to be a long process.
Competitions for hundreds of judicial posts, both full-time and part-time, are being run over the next few months as courts and tribunals try to plug the gaps that are leaving judges swamped with work and threatening to undermine the judiciary’s worldwide reputation.
The Judicial Appointments Commission (JAC) is currently running its biggest-ever exercise for part-time, fee-paid deputy district judges (DDJs). The competition to fill 303 vacancies is due to be completed by the end of February 2019.
The next recorder exercise is due to be launched tomorrow (19 June) with 150 part-time vacancies, while 54 candidates are urgently needed to fill salaried employment tribunal judge roles as the tribunal struggles to cope with the surge in claims since fees were ruled unlawful by the Supreme Court.
The growing phenomenon of judges resigning or taking early retirement, alongside those reaching the mandatory retirement age of 70, means the demand for people to fill key salaried roles is exceeding the pool of strong candidates.
In the 2017 High Court competition, a third of the 25 vacancies remained unfilled. There was a shortfall of 12 circuit judges following the largest-ever competition for 116 roles; and, for the first time in recent years, there was also a shortfall in suitable candidates for district judge roles.
Lord Chief Justice Lord Burnett spelt out the risks to the court system when he gave evidence to the House of Lords Constitution Committee in May. He blamed pay and pensions, ever increasing workloads, deteriorating working conditions and social media abuse for the high turnover and recruitment problems. The Appeal and High Court would ‘struggle’ to cope, he said, without retired judges sitting part-time.
He said the government recognised the impact these difficulties were causing and had made a commitment to ‘engage seriously’ with the recommendations of the Senior Salaries Review Body’s (SSRB) major review of judicial pay.
However, the SSRB timetable has already slipped to the autumn, while the Ministry of Justice (MoJ) is refusing to back down over changes to judicial pension arrangements, taking its fight to the Court of Appeal in early November.
The low down
A crisis in the recruitment of senior judges is threatening to undermine the worldwide reputation of the judiciary, according to the Lord Chief Justice Lord Burnett.
At the same time, recruitment and retention difficulties are affecting all levels of court, with Lord Burnett blaming pay and pensions, increasingly heavy workloads, deteriorating working conditions and social media abuse.
Solicitors are seen as a key source of talent to boost numbers and diversity. But the latest figures show solicitors are still being recommended for appointment at lower rates than barristers in all legal exercises, with representation dropping the more senior the role.
A complex statistical analysis of each stage of the application process is under way to see if there are any barriers to under-represented candidates progressing.
As the Law Society and the judiciary develop initiatives to boost more diverse appointments, practitioners speak frankly of their challenges in getting on to – and climbing – the judicial ladder.
Why be a judge?
Against that bleak backdrop, the question for many solicitors is – why would I want to be a judge? Particularly when some firms consider a part-time judicial role to be career suicide. But, talk to those who have pursued the option and – however demoralised they may feel about the application process and promotion chances – they light up when they talk about the work itself.
There are initiatives being put in place to support applications from under-represented groups. The Law Society is developing the Solicitors Judicial Pathway while the Judicial Diversity Forum, which includes senior judges, the MoJ, JAC and professional bodies, has announced plans for an online Pre-Application Judicial Education (PAJE) programme to start next year.
Lady Justice Hallett chairs the Judicial Diversity Committee of the Judges’ Council. She says PAJE will train practitioners in ‘judge craft’ before they even look at the application form. Once they apply, under-represented candidates hoping to become deputy High Court and High Court judges can then go on the workshops provided by the judiciary. These will help them use the skills they have developed through PAJE to demonstrate that they have what it takes.
So, what do the latest JAC statistics say about the highly competitive recruitment process? First, it urges ‘strong caution’ in how the figures are interpreted.
There were 4,772 applications for 24 competitions for legal roles between April 2017 and March 2018 (excluding senior judicial exercises), which resulted in 493 recommendations for appointment.
Black, Asian and minority ethnic (BAME) candidates constituted 19% of all applicants (906). Of those candidates, 12% (144) short-listed, but 9% (44) received recommendations for appointment – a lower rate than white candidates.
Women accounted for 43% of applicants and 40% of both those short-listed and recommended for immediate appointment.
Social mobility details were recorded for the first time. Those attending fee-paying schools accounted for 35% of those recommended for judicial appointment, although only about 7% of the British public is privately educated. While two-thirds of district judges went to state schools, more than half of those recommended at High Court judge level went to private schools.
Solicitors accounted for 36% of all applicants, and 25% of those short-listed. Solicitors made up 21% of those recommended for appointment, compared with 59% of the barrister candidates who were recommended for appointment. (The remaining 20% did not give their profession, or stated it was another judicial role.)
Solicitors did well at the more junior levels – accounting for 47% of those recommended for appointment as district judges (civil); 45% of district judges in the magistrates’ court; and 48% of first-tier tribunal salaried judges. But their representation, along with that of BAME and women candidates, continues to drop as the seniority of the exercise increases.
Two former solicitors did make it tothe High Court bench last year – taking the tally to six since 1993. But both were already in full-time judicial roles when they were appointed.
DDJ Peter Causton, who is standing for the Law Society Council as civil litigation member, says ‘male barristers clearly have a disproportionate advantage in their applications, even with the equal merit provision being exercised in favour of women on three occasions’.
Tim Smith is a partner with Bryan Cave Leighton Paisner and a member of a working party on judicial appointments for Justice – the law reform and human rights organisation. He first applied about eight years ago and made several applications for a fee-paid role, including recorder and upper tribunal, before being appointed five years ago as a first-tier tribunal judge in the Social Entitlement Chamber. He has sat 85 times since then. He has subsequently applied for other fee-paid roles, including deputy High Court judge, without success.
Smith says his firm has been supportive and he has seen feedback from the JAC improve. After his initial deputy High Court application, he was told his telephone interview was good, but it was felt his application form was not strong enough for his application to progress.
‘So I beefed that up, but the next time I didn’t get through the paper sift,’ he says. ‘I was also disappointed that my tribunal experience didn’t appear to add weight to my applications, given some of those appointed didn’t have any judicial experience.’
Difficulty defining ‘merit’
While it is ‘indisputable’ that the JAC should appoint on merit, he argues that, without an accepted description of what ‘merit’ looks like, that commitment is meaningless.
He believes the JAC should be ‘more courageous’ in its recommendations by focusing more on potential rather than demonstrable achievements.
‘Suppose you have two people who both performed equally well in the role play or telephone interview,’ he says. ‘One is a regular advocate in the High Court and the other is an M&A practitioner who doesn’t go to court, but is very experienced in managing projects and people. Both show lots of the skills expected of a judge. But which one has the greater potential? I am not sure the system is set up to reward potential.’
Cordella Bart-Stewart is an immigration and family law specialist, and a director of the Black Solicitors Network. She was appointed as a fee-paid employment tribunal judge 18 years ago on her first try and encourages others to apply because the work is rewarding. But her experience of seeking a salaried appointment was ‘very negative and I complained about the process. There is a lot of hand-wringing about diversity, but I don’t think any real steps have been made to appoint other than in the existing image of a judge’.
Bart-Stewart argues: ‘Taking 10 cases to the Court of Appeal doesn’t make you a better lawyer than practitioners in the high street who run a successful practice, employ people and deal daily with difficult challenges facing clients and get results for them.’
Jonathan James, chair of the 125-member United Kingdom Association of Fee Paid Judges, says the advent of alternative business structures (ABS) has added to the difficulties for solicitors whose employers see releasing them for judicial duties as eating into their profits.
Association members in both ABS and partnerships have lost their jobs, found their promotion blocked or the number of days they can sit restricted to the minimum.
There is some evidence that opportunities for promotion are opening up, with the majority of circuit judge appointments coming from the district bench, where solicitor representation is strong. Whether this leads to real change, he says, depends on whether those former district judges go on to be promoted to the High Court bench.
Clifford Chance partner Simon Davis, who will become Law Society president in 2019, says both he and the incoming president Christina Blacklaws will put solicitor-judges high on their agenda. While he has no desire to become a judge, he says ‘there is far too much talk about how we can attract more applicants and not enough on why those who do apply don’t get through’.
The Society of Asian Lawyers has also been trying to address the under-representation of those with BAME backgrounds, who account for just 7% of judges, by holding events to inspire members to apply. President Ranjit Sond says BAME candidates account for 10% of those appointed before they are 40 and for 14% of tribunal judges. ‘These roles can be very specialised, so we need to find out why the figures for the courts are lower when the ability is clearly there,’ he says.
‘We need to get to the bottom of the disparity in appointments,’ agrees Richard Miller, Law Society head of justice. ‘Is this down to inherent bias in the system or the quality of the applications, because some don’t have the same contacts or background or don’t take the right approach in showing their skills?’
Richard Jarvis, JAC chief executive, says the commission has done a ‘huge amount’ to ensure selection is fair by getting external validation and rigorously testing every tool used in the process.
‘An advisory group of professionals and judges reviews all selection materials – including role plays, to ensure that they don’t adversely affect equality or diversity or inadvertently advantage candidates from a particular practice area or jurisdiction,’ he says.
‘None of our selection tools test for advocacy, and considerable stress and effort is put into designing tools that can identify transferable skills from a wide range of professional backgrounds.’
The task is challenging. For the recorder roles, there were 2,500 candidates for 150 posts, which Jarvis says ‘has to involve comparative judgements so you can identify the top 150 candidates’.
In a bid to get a deeper understanding of what is going on, Jarvis says JAC commissioned a complex statistical analysis of each stage of the process to see if there are any barriers to the progression of under-represented groups. The results are due this summer.
Hallett acknowledges that ‘if you are a highly successful solicitor and put yourself forward, being rejected feels like a slap in the face and it takes quite a lot to dust yourself off and apply again. But look on it as a learning experience – was it because my form wasn’t very good or because I didn’t interview well? Next time I will do better.’
Difficulty defining ‘merit’
Rights group Justice and Labour MP David Lammy, who produced the highly regarded report on tackling injustice, have called for ‘measurable targets with teeth’. But Hallett argues significant progress is being made, and targets or quotas will not help.
‘I want to see more women, BAME and socially mobile applicants become judges, but I would never express that as a target because I don’t feel sufficiently in control of all the moving parts and it just sets you up to fail,’ she says. ‘My target is to stop needing inspirational role models, because these appointments have become routine.’
Mrs Justice Philippa Whipple trained at Freshfields and worked in its tax department for four years before retraining as a barrister and a part-time judge. She was appointed to the High Court in 2014. ‘There is a German word – quotenfrau – for a person given a post to fulfil a quota,’ she says. ‘I wouldn’t want to be that person.’
Andrea Coomber, director of Justice, says it has also repeatedly argued that there should be a clearer internal career path so solicitors appointed to junior roles have a better chance of promotion.
In May, former Law Society president Phillip Sycamore was appointed deputy vice-president of the Unified Tribunals. Originally a provincial high street solicitor, he was appointed as a recorder in 1999 and circuit judge in 2001, becoming the liaison judge for the Mental Health Review Tribunal in 2002. He is also authorised to sit as a High Court Judge and is a senior judicial appointments commissioner.
He points out that it was his solicitor background that made him attractive for the initial liaison judge appointment because it was an organisational role.
He says practitioners should not limit themselves to the more obvious route of recorder, as sitting as a tribunal judge can be less disruptive to practice and progression to court roles is ‘quite healthy’.
What stands out is the passion which practitioners bring to their judicial roles.
Hallett says the recruitment crisis must not be underestimated if the courts are to maintain their place in the world: ‘It would just be such a disaster if we lost it and it wouldn’t take that much money in government terms to put things right.
‘But at the same time, we also mustn’t undersell the job. It is endlessly stimulating.’
The Cambridge Business English Dictionary defines deal-making as: ‘The activity of making business agreements or arrangements.’
Deals are pivotal to corporate growth and are being struck all the time. You will not succeed in business without striking deals. Everyone has the potential to be a good deal-closer, and it is clear that every person, organisation or nation state needs to make deals at some point, and usually quite regularly.
Organisations around the world will continue to grow, refocus, merge – and, sometimes, retrench – through making deals. Given the increasing interconnectivity – technological and otherwise –of the world’s businesses, the risks of not having a good deal-closer at the helm will increase. The need for business leaders and decision-makers to be able to effectively identify a deal’s strategic, financial and operational value and then to execute and manage it efficiently will only accelerate.
While different cultures and nationalities use different methods, processes and communication styles in deal-closing, from the beginning of time humans have been striking deals to facilitate family, trade, community and national best interests. Although cultural differences make the deal landscape even more interesting and sometimes challenging, the key elements that facilitate a deal – selling, persuading, negotiating and signing a contract – are the same the world over.
Despite the pervasiveness of deals in all aspects of our lives, little has been written about the process of effective deal-making. I have developed the 7P approach to deal-making, which covers a logical sequence to help with more effective, efficient and ethical deal-making:
This P provides an overview of some key principles in deal-closing. Following a clear strategy, using in-depth planning, engaging the right people, ensuring stringent and exacting execution, experience, intuition, good communication skills, empathy, persistence and constant monitoring are all essential ingredients for ensuring successful deal-closing. In a series of articles for the Gazette, I will explore some of the key skill-sets of a good deal-maker with particular reference to legal business, including selling, negotiating and other alternatives such as BATNA, compromise or walking away.
There is a tendency to think that a deal-closer must ‘win’ and the other side must ‘lose’. If the only thing being negotiated is money, then yes, in that circumstance, a deal can be that straightforward. But we have very rarely been part of a deal scenario where money is the only factor at play. However, the goal of creating a good deal for both parties through mutual value satisfaction is not only possible, but also the only really sustainable way to do business.
Be careful not to confuse value with fairness. Because we all have our own barometer of what is fair at any particular time, there is every chance that appealing to a higher concept of fairness when trying to conclude a deal will actually just serve to antagonise the other side.
This P demonstrates that if you fail to plan, you plan to fail. Thorough preparation and planning gives you the best opportunity to understand all the possible strengths, weaknesses, opportunities and threats in your deal-closing game plan. Do not be tempted to cut corners here. Despite the temptation to do so, never rush your strategic planning.
All successful deals begin with the right strategy, with risk analysis and measured processes in place. The tactical benefits of a well-honed strategy are that it helps you determine what you want, how you are most likely to achieve it and then to choose your optimal tools and optimal team for execution.
Speed, of course, can be important at the right time in the deal-closing proceedings, but advanced planning, clarification and preparation are even more important. Being prepared increases your ability to successfully get through difficulties on the deal journey with confidence. It is important to complete your preparations in advance as there may be limited time to stop and regroup when you are in the thick of a deal.
This P demonstrates the critical importance of the power balance in deal-closing and how you can ensure you have the upper hand. It also relates to the critical issues of ensuring your organisation is culturally ready for the deal power-wise and whether any organisational change is required at this time.
Careful planning allows you to frame your preparations for maximum effect and maximum deal power, highlighting your potential deal strengths and weaknesses and providing you with the ability to fix any holes in your position. As with planning, do not cut corners. As a first step, conduct a comprehensive assessment of relative power between both sides. Your relative power directly impacts your ability to execute deals. In fact, relative power is one of the most important factors that can determine the outcome of a deal.
Deal power is a frame of mind and can be developed. Even if, initially, it looks like there is a significant imbalance of power between you and the other side, by being smart, diligent and measured a good deal-closer can readjust that imbalance – for example, by moving the discussion away from price to quality or some other emotive subject.
Power is not static. It usually ebbs and flows during a deal and can change sides very quickly. Whether you like it or not, your power is always influenced by your credibility, legitimacy, knowledge, authority, appearance and influence. Perception is an extremely powerful power source in deal-closing: perceived power can be as powerful as actual power. So focus on building the appearance (or at least the perception) of your own power.
This P demonstrates how important the players involved in a deal are to the successful outcome of a deal. Regardless of your strategy and planning, the success of any deal is reliant upon the people involved.
Unless you are running a deal alone, which is rare from a corporate perspective, your choice of deal team is critically important as the shape of your team has a dramatic impact on your power. The right deal team members can enhance the knowledge, credibility, authority and perception of your team. So, who to include, who to leave out, roles and reporting methods are extremely important.
It is important to map out the key players on the other side of the deal table, as you are ultimately going to have to convince them all of your proposals. As part of the process of information-gathering to bolster your deal-closing power-base, you need to determine who is on the other side’s deal team and each person’s respective power, influence and final say in the deal-closing process. Assume at your peril that the other side’s intentions are the same as your own. So, the more you understand the other side’s motives, intentions, strengths and weaknesses, the more you can use that to your advantage.
We have now arrived at a point on the deal journey where the deal has been planned, and there is a strategy and an execution team in place. This P demonstrates the fundamental importance of deal performance itself.
While planning is critical, deal-closing is not just a theoretical exercise; practice does help to make perfect. So, in addition to planning all the strategic and tactical aspects of your deal journey, including team members and communication tactics, you should methodically rehearse how you will achieve your objectives and close the deal.
There is no formula for what you should open a deal with. Instead you must consider and balance many issues, such as relationships, where your organisation stands business-wise, who is in the deal room and so on. In our experience, you will quickly know if you have not been ambitious enough – mainly from the
speed at which the other side accepts your first proposal.
Therefore, be sure you open as ambitiously as possible, though of course be mindful of cultural differences in the way you frame your opening. Also, try to avoid making an opening offer that could offend or stress your counterpart. Unreasonably extreme offers will likely drive the other side to search for counterarguments.
The more you ask for, generally the more you can expect. Going first and as high as you can, you could end up achieving more than you might otherwise have done: you may make the other side believe they have won something by ‘bringing you down’.
Putting it to bed
You have now arrived at the all-important finale. You have strategised, planned, developed and used relationships and networks, built a team, made and received proposals, reconsidered and thrown in a fair amount of psychology, patience, wisdom and fortitude to boot. This P looks at last-minute checks and other tactics to use when you reach the deal close. It also explores the importance of memorialising and future-proofing deals to ensure good governance, risk control and implementation.
Even though you have rehearsed the close and have established the ostensible confirmation of the opposing team, you still need to ‘cross some Ts’ and ‘dot some Is’ in sealing the deal.
Summarise the deal at this point and compare where you have landed with the deal against your likely outcome. If you have fallen short, you have one last chance now to try adjusting the deal parameters, though we have rarely seen this happen at this late stage If you are successful in reframing the discussion and you achieve positive movement in the deal, then ensure that the other side explicitly agrees that this is their new understanding so as to minimise the possibility of any later conflict.
Pay-out or post-mortem
Job done – this is when you can sit back and take credit for a successful deal execution. But, sometimes, closing a deal is not always possible and you need to learn not to take such occasions to heart. Every deal – successful or otherwise – contains within it lessons for the future.
Despite your best efforts in putting a good deal on the table, the vagaries of deal-closing mean that things can – and often do – go wrong. Not all deal discussions will result in a successful deal.
Sometimes deadlock or dispute will arise. Be aware that a ‘No’ from the other side does not always mean the deal is at an end. Too often parties walk away at this point, but many times in deal discussions we have heard ‘No’ and yet we have seen a way forward. A good deal-closer will use ‘No’ as a cue to reframe and try a new tactic.
This is the first in a series of articles by Simon Haigh, a solicitor, professional coach and author. Haigh is managing director of related global advisory businesses expertdealcloser.com and gcmadvisory.com, and the author of several publications. This is an extract from his forthcoming book How to Be a Better Deal-Closer from businessexpertpress.com