Stoke Newington Chambers

The Convention Belongs To You

Kristin — Mon, 10 May 2010 08:22:50 +0000

This video is an easy Monday morning way of thinking about and remembering the European Convention on Human Rights (ECHR)

Hung Parliaments & Queen Activation

Kristin — Sun, 09 May 2010 06:46:04 +0000

Conservatives win more seats than any of the other Parties, but don’t have a majority.

Have you turned to the unwritten section of the British Constitution to see what happens next?

Confused?

Professor Peter Hennessey explains hung Parliament procedure here and the BBC has a very helpful graphic here.

The draft Cabinet Office guidance Professor Hennessey refers to is here.

Who will “activate the Queen” and who will they ally themselves with in order to do it?

H/T Club Troppo

Birthers, Law and Reading Comprehension

Kristin — Wed, 14 Apr 2010 09:40:19 +0000

“Birthers”, if you didn’t know, refers to people who think Barack Obama does not satisfy the “natural born citizen” requirement contained in the US Constitution and thus is ineligible to be President of the United States.

Some birthers think Obama was born in Kenya rather than Hawaii. They are not satisfied with Hawaii’s computerised print-out of the birth records the state holds - they want to see the “long form birth certificate”.

Others, realising they’re on a hiding to nothing with the Kenyan birth conspiracy, have gone “legal”. They point to US Code: 1401 (g) and savour their “gotcha” moment: As Mama Obama was only 18 at the time of Barack’s birth, she did not have sufficient post-14 years of age US residence to pass on her citizenship. Therefore, by their analysis, as Barack’s father was a Kenyan citizen and his mother was unable to pass on her American citizenship, Barack is not a natural born American citizen – and not eligible to be President of the United States.

On closer examination of 1401, our friends will see (g) only applies if the person was born outside the geographical limits of the United States and its outlying possessions. Born outside. If you accept baby Barack was born in Hawaii, (g) cannot apply.

This tallies with the Fourteenth Amendment of the US Constitution, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”. The plain meaning of these words should be self-explanatory.

The point of this is to show two things:

1) It’s true when they say that reading comprehension is just as important as knowing the law. You can’t apply the law to the facts properly if you’ve misunderstood one or the other (or both); and

2) Never, ever assume the other guy knows the law. Look it up yourself.

H/T The Urban Politico

Public Law Problem Questions (Part 1)

Kristin — Sat, 10 Apr 2010 22:54:48 +0000

I’ve received a few requests for a sample answer to a Public law question. That’s easier said than done.

Criminal law problem questions generally ask you to discuss the criminal liability of, for example, Curly, Larry and Moe in light of a multi-faceted fact pattern. Moe, for example, could be liable for murder, rape, criminal damage and assault – and you would have to discuss the entirety of his criminal liability to get top marks.

Public law questions, on the other hand, typically look for a narrower response. Look at this past University of London External law exam from July 2008. Question 4 is a Judicial Review problem question. While the facts in this question may provoke a great deal of discussion of wide ranging aspects of Judicial Review – the question itself is very specific: it simply seeks a discussion of the various parties’ standing to bring a case. If you write everything you know about Judicial Review – you are not going to do very well. As Question 4 asks only about standing, your answer must be about standing. Simple as that.

The good news about Judicial Review is that it is an almost dead cert it will appear on your Public law exam. The issue is how it will appear in your Public law exam. That means you need to know all of it.

First things first: Use Mind Maps to get your notes under control

I am a big believer in “Mind Maps” aka “Spider Graphs” because I am better able to get a grip on a topic if I reduce it to a one page map/graph rather than a block of text.

So for Judicial Review, it’s much easier to lay out the three grounds for review – and then put in the sub-categories for each ground, in a graphic way, rather than by reams and reams of text. In the middle of my JR Mind Map, I might make a note of the basic rules and procedure – i.e. time limits, public function, sufficient interest/standing, remedies etc.

If you can map the topic out, you’re less likely to get side-tracked into a discussion on grounds (for example) when you’ve been asked about standing only – and be in a better position to apply the relevant law to the facts contained in the question.

Remember IRAC

As mentioned in my previous post on answering Criminal problem questions, it is important to adopt a structured and comprehensive approach to answering the specific question asked. I use: Issue, rule, analysis, conclusion. Question 4 of the 2008 paper asks whether Fred Smith himself, Mrs Smith, the Police Federation, the Chamber of Commerce and the local branch of the Conservative Party all have standing to challenge the decision by the BPA to dismiss Fred.

Each party receives the IRAC treatment and gets their own heading

Keep it clear. Use headings to let your examiner know who you are talking about – and use IRAC so they can follow your thought process and give you credit for your work.

For example:

Fred Smith

The first issue is whether Fred has standing to challenge the the BPA’s decision to dismiss him.

Section 31 of the Supreme Court Act 1981 states: “the court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates”. The test for “sufficient interest” depends on whether F will rely on Human Rights Act or not.

If F is relying on the HRA, the test is the narrowly construed “victim test” contained in s7(1) HRA is: “whether he is or would be a victim of the unlawful act”.

If F is not relying on the HRA, the test for “sufficient interest” is broader and includes representative and pressure groups (as “legal persons”) as well as as well as interested individuals (as per IRC v NFSESB).

In this case, F himself is the “victim” of the BPA’s decision and he therefore has a sufficient interest in applying for a review.

F therefore has standing.

Mrs Smith

The second issue is whether Mrs Smith has standing.

The rule is ….

As Mrs Smith [xxx] and [xxx] she therefore does/does not have a sufficient interest in a review of the decision to dismiss Fred because, because, because.

Mrs Smith does/doesn’t have standing.

and repeat.

Keep your discipline

In essence, you are talking about each of the parties’ prospects of getting leave to appeal. Is it in the “public interest” to have the local branch of the Conservative Party, the Chamber of Commerce etc wading in – or are they “busy-bodies”? You’ll need to explain with full reasons that are supported by case-law.

And finally

Consider statute before case law – and domestic law before the ECHR – always.

The fact pattern in Question 4 reminds me a bit of Sharon Shoesmith’s Judicial Review of the decision to dismiss her as Head of Children’s Services at Haringey Council.

The Case for a UK Bill of Rights?

Kristin — Mon, 05 Apr 2010 19:05:26 +0000

I am usually the first one to defend the UK’s unwritten Constitution. Then I read stories like the following and wonder if it really will take a single, codified document for the Executive to get the message.

“Police are removing valuables from unlocked cars to shock motorists into being more careful.

Officers are taking everything from handbags to satnavs, and leaving a note telling drivers their property is at a local police station.

The scheme is being tried out in Richmond, which has a disproportionately high level of thefts from cars – up 40 per cent in a year. Police from the area’s Safer Neighbourhood teams are being told to look out for cars with open windows or doors.

If they find valuables on display they will try to find the owner nearby, but if they cannot they will take the goods to Twickenham police station. Drivers who leave their car unlocked but with nothing on display will get a letter telling them to be more careful.

The project has the backing of Richmond council, which agreed to it after a surge in thefts to 300 between April and July, a fifth of which were from unlocked cars”. (Source)

But wait, there’s more! “Exeter Police have taught home-owners how insecure their houses are by ‘burgling’ 50 homes”. (Source)

Let’s talk about liberty: it is the legal postulate that underpins our Constitution. It’s why we have a Separation of Powers.

Entick v Carrington is one of the sources of our Constitution – and Authority for the principle that the Executive can take no action unless it has been expressly granted the power to do so.

Police powers are delineated in PACE. Please would someone from Richmond or Exeter show me the bit in Code B of PACE that authorises a without permission by the owner entry and seizure to “educate the public”.

I won’t hold my breath, as I may be waiting a long time.

Our Constitution is based upon the Rule of Law – not “the end justifies the means”. Do we really need to carry a pocket-sized British Constitution with us at all times to keep the Executive in check?

In the meantime, perhaps Richmond and Exeter will consider sending letters to home and car owners with crime prevention advice, rather than trespassing on their property and rights.

H/T to Garrulous Law

Scrap the HRA for a British Bill of Rights?

Kristin — Sun, 04 Apr 2010 20:52:12 +0000

If you’re a Public law student who’s going to be in London on 20 April, I highly recommend getting a ticket to the Times/Matrix Chambers debate:

“This House believes that the Human Rights Act should be scrapped and replaced by a British Bill of Rights”

Student tickets are available – but you’ll have to get in there fast. Read on.

NB
I wonder if any of the debaters will note that the UK already has a Bill of Rights?

Let Her Roll

Kristin — Sun, 28 Mar 2010 15:18:18 +0000

This is the time of year when the hub-bub of pupillage, training contracts and paralegal jobs is at fever-pitch. In this economy, students will grab hold of any offer going. But listen to me when I tell you: there are varying degrees of legal work – and they are found in every sector.

Before grabbing that offer with both hands, find out if it’s nothing more than a dead-end. Will that paralegal job really lead to a training contract? Really? Ask them how many of their paralegals have gone on to obtain training contracts. How long did it take?

Then ask yourself: Is this an area of law that means something to me? Can I see myself doing this for the next five years? Is this what I want out of my career?

Factory work can have its uses. Just be wary of being pigeon-holed into a sausage-machine ghetto with no real prospects of success.

QLTT to QLTS: Putting the Kibosh on Kiwi Lawyers?

Kristin — Mon, 22 Mar 2010 19:45:57 +0000

As of September 2010, it’s going to get a wee bit harder for overseas qualified lawyers to become English solicitors.

The days of foreign lawyers from common-law jurisdictions passing an open-book solicitor’s accounts exam and having their supervising solicitors sign-off on their English work experience are drawing to a close.

The SRA itself, rather than your amenable boss, will ascertain whether you have the requisite competency to practice in England & Wales.

And as for non-practising English barristers?

Read on.

UK Supreme Court Essay

Kristin — Thu, 18 Mar 2010 12:39:55 +0000

Faithful readers of this blog will recall my September post on the creation of the new UK Supreme Court – and my speculation that it could well be a future essay question or exam topic.

Read Anita Davis’s winning Times entry for, “Supreme Court UK: radical change or business as usual?” here.

And Speaking Of New York

Kristin — Mon, 15 Mar 2010 12:47:07 +0000

This is the story of a man whose “never say die” spirit has yet to be rewarded. Read on:

All his life, Robert Bowman wanted to be a lawyer. He overcame a troubled childhood, a tragic accident that nearly cost him a leg and a debilitating Jet Ski collision.

He put himself through community college, worked and borrowed heavily to help pay for college, graduate school and even law school. He took the New York bar examination not once, not twice, not three times, but four, passing it last year. Finally, he seemed to be on his way.

In January, the committee of New York lawyers that reviews applications for admission to the bar interviewed Mr. Bowman, studied his history and the debt he had amassed, and called his persistence remarkable. It recommended his approval.

But a group of five state appellate judges decided this spring that his student loans were too big and his efforts to repay them too meager for him to be a lawyer.

“Applicant has not made any substantial payments on the loans,” the judges wrote in a terse decision and an unusual rejection of the committee’s recommendation. “Applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law.”

Mr. Bowman, 47, appears to have crossed some unspoken line with his $400,000 in student debt and penalties, accumulated over many years.

New York’s courts have overlooked misconduct like lawyers’ solicitation of minors for sex, efforts to deceive judges and possession of cocaine. Those instances have led merely to temporary suspensions from practice.

“It usually takes a pretty significant record of some underlying misconduct to keep you out permanently,” said Deborah L. Rhode, a law professor at Stanford who has studied bar admissions across the states. Excluding someone for having too much debt was odd, she said; the hard questions about loans usually involve applicants who have used bankruptcy to try to escape loans, she said, and Mr. Bowman has not.

Mr. Bowman concedes that he has never made a payment on his loans, partly because of medical and other deferrals and problems with his lender. But he says he intends to make good, adding that his only hope is to begin practicing law — which means overturning the judges’ decision.

While thousands of indebted students have complained about their treatment by lenders, Mr. Bowman has documented his personal debt crisis with remarkable, obsessive intensity.

He claims Sallie Mae overcharged him, imposing hefty and unjustified fees; did not allow him to defer payments when he was entitled to do so and improperly accounted for periods when he did defer.

According to his detailed records, a Sallie Mae representative even threatened him. “If you default, your license will be taken from you,” the representative said. “Do you understand that?”

When Mr. Bowman said that he did not yet have a law license, the representative responded that the company would prevent him from getting one.

Martha Holler, a Sallie Mae spokeswoman, said that such threats would violate the company’s rules.

“The size of this account is extremely unusual, but not surprising given that the customer took out 32 loans to pursue undergraduate, law and masters of law studies and has not made a single monthly payment over his 26-year student loan history,” Ms. Holler said. “We are performing an extensive review of his extraordinary case, and if we identify any errors we will quickly rectify them.”

Mr. Bowman has not had an easy time of it. He was shuffled through foster care and various legal proceedings as a child. He was impressed by the lawyers who represented his interests and saw a possible life’s work.

Getting a college degree took 10 years because he had spent nearly six in rehabilitation, relearning how to walk after an all-terrain vehicle hit him while he was stopped on his motorcycle. The accident nearly cost him his left leg; he graduated from the State University of New York in Albany in 1995.

He enrolled at the University of California Hastings College of Law in San Francisco in 2000.

After his third year, he began a masters of law program in London, where he lived with a girlfriend. He graduated in December 2004 with about $230,000 in student loan debt, and she helped support him while he studied, and studied again and again, for the bar exam.

In 2007, Mr. Bowman asked for an accounting of his loans, the payment deferrals he had used and his repayment options. He said he did not receive that information for nearly two years — a point disputed by Sallie Mae, which said it tried to reach Mr. Bowman several times in 2007.

Mr. Bowman passed the New York bar in February 2008. Soon after, while living with his once-estranged mother in Miramar, Fla., he was swimming at a beach when a Jet Ski lost control and slammed into him, breaking his good leg in four places.

“My luck on these things,” Mr. Bowman said. “So I contacted Sallie Mae and I’m like, I need a medical deferment and advice. Their response is, none available.”

Sallie Mae transferred Mr. Bowman’s private student loans, the ones not guaranteed by the federal government, to a collection agency, which tacked on a 25 percent fee. That agency transferred the loan again, and he said the next collection agency tacked on another 25 percent fee. Sallie Mae denied this, saying he was charged the fee only once. But suddenly, Mr. Bowman found that he owed more than $400,000.

Knowing it would be difficult to explain his debt to New York’s Committee on Character and Fitness, which reviews applications for admission to the bar, Mr. Bowman gathered correspondence with Sallie Mae, loan statements, even the emergency room report on the Jet Ski incident.

The three lawyers who interviewed him in Albany in January found Mr. Bowman’s “determination to pursue a postsecondary education remarkable,” according to the written evaluation. As for the loans, they continued, “it appears unconscionable that a student loan indebtedness could go from $270,000 to $435,000 in four years.”

Two of the committee members did not return calls seeking comment; the third could not be reached.

In April the judges rejected the committee’s recommendation and ruled Mr. Bowman could not be a lawyer. Michael J. Novack, the clerk of the court that handled Mr. Bowman’s application, declined to comment specifically on his case.

“Generally speaking, if the committee on character and fitness recommends admission of an applicant, the court approves of it,” Mr. Novack said. “But not always.”

Along with asking the court to reverse its decision, Mr. Bowman has consulted lawyers and is preparing a lawsuit against Sallie Mae. One way or another, he vows, he will make the switch from client to lawyer.

You have to admire the guy’s persistence – yet there are a few lessons to be learned.

1. Avoid debt. Easier said than done. This is the attraction of the University of London External Law Programme and the Open University’s LL.B. degree – you can plan your studies around work commitments. Part-time degrees also allow students to pay as they go rather than ratcheting up debt.

2. Get your ticket. First things first. Consider passing the Bar/LPC first and then doing a LL.M. The Bar/LPC is your ticket to work – at the end of the day, that’s what it’s about – for most people.

3. What do you want out of a LL.M.? What is your likely return? I loved my LL.M. year – but unlike our friend, I did not pay overseas fees etc to get it.

4. If you have to take out student loans to follow your dream, take the trouble of Googling the provider. Find out if they are the kind of people you want to do business with. While I make no comment on the merits of our friend’s case or his ability to conduct litigation, I can guarandamntee you his opponent will have a team of top lawyers who have been here before.

5. Good character is a real requirement for admission/call to the Bar. Before embarking on possibly the greatest endeavour of your life, check the character requirements for the jurisdiction in which you wish to qualify. Dishonesty offences, drug and alcohol abuse etc are a bars to qualification in many jurisdictions. Think about it – attorneys/solicitors deal with client money and vulnerable people. No Bar Association/Law Society is going to turn you loose on the public without scrutinising your history.

As for New York’s decision in Bob’s particular case? In my opinion, it seems a little unfair to deny him the licence. If he can’t work as a lawyer, how else is he supposed earn the money to pay back the loan?