Aspals Legal Pages [aspals]
What did you study? What did you specialize in?
My degree was in law and I then went on to take the Bar exams. My areas of subsequent specialisation: Criminal Law, Military Law, Human Rights
What has been your professional experience in the arena of law? How long have you been in the profession?
Over 35 years as a trial advocate, negotiator, adviser, risk assessor. Author of several published articles.
I no longer practice as a barrister, but provide consultancy services.
Are there any links we can follow to see something more about you?
What types of cases interest you most?
Human Rights, criminal, military/operational
How do clients find you? Why do you think they choose you?
They can find me through the Aspals website.
They choose me because of my broad background and also my specialist knowledge of an area of law that is little known to mainstream civilian lawyers, namely, military and operational law.
How do you set your rates? Does it have to do with time commitment , what is at stake, or with the financial ability of the client?
Rates are set according to the level of challenge and the time required to complete. The financial ability of the client is taken into account for the purpose of charitable and not-for-profit organisations, for whom separate arrangements can be made. But the sort of issues that I am usually engaged on are at strategic level thinking where the outcomes are significant.
How do you sell a client on the strategy you develop for litigation?
I do not engage in litigation at present.
Clients can sometimes be emotionally upset. How do you get them to adopt a realistic and rational attitude?
When this problem has arisen in the past, one tries to explain that the advice provided is in their best interests and that one is there to help them.
What do you do when your gut says your client is lying to you?
If this question means: do I believe my client is telling me the truth about his defence, then I would advise on the merits of the defence being put forward by the client. It is not the lawyer's task to judge the case. That is for the jury. In the absence of an admission of guilt or a plainly ridiculous and implausible defence, one would work with what one has, and endeavour to put the situation bluntly to the client so that (s)he has a realistic appraisal of the risks of persisting in their line of defence, and the chances of the jury believing them. However, sometimes the truth can be stranger than fiction. So, in the end, one has to go with the client's version of events.
In non-criminal cases, try and coax out the truth by a set of carefully crafted questions which are put in a non-confrontational way. However, it may sometimes be necessary to tell a client directly that their story is palpably implausible and that if it is persisted in it is likely to have a detrimental effect on their argument/case.
It therefore very much depends on the circumstances and the extent to which contradictory evidence destroys the client's stance. In a criminal case, for example, where the onus is on the prosecution to prove its case, the prosecution evidence can be tested until the close of its case.
Have you ever defended someone's innocence while knowing with certainty that he/she was really guilty?
Only where there has been a technical legal flaw in the prosecution case, so that an esential ingredient of the offence has not been proved eg in a charge of handling stolen goods, proving that goods actually were stolen. The prosecution case can be tested until "half time" and then a submission made to the judge that it has failed to prove all the elements of the offence. That does not necessitate putting to the prosecution witness any version by the defence.
Otherwise, in the absence of a technical legal defect in the prosecution case, if a client says (s)he is guilty, then one cannot represent them on a plea of not guilty. They either plead guilty or one withdraws from the case.
What reasons would you have for not taking on a case? How would you justify it?
If there was a conflict of interest eg I had advised an opponent.
What strategy is usually effective, an aggressive and intimidating one, or one that seeks a reasonable compromise?
It all depends upon the situation and the type of people one is dealing with. However, a gentler approach can often be the best as in cross-examination it sets people at ease and, quite often, lulls them into making damning admissions, and in negotiation it sets a more civilised tone which engenders a spirit of cooperation and compromise.
Is it important to know beforehand the personality and habits of the judge that is going to decide the case?
It is quite useful to know if the judge has any particular bętes noires, or areas of interest. One can then adapt one's approach and style accordingly. In a strange court it is always advisable to ask of other advocates whether the judge one is appearing before has any "idiosyncrasies". This has served me well in the past!
Is courage needed to practice your profession?
Sometimes. When the justice in a case is strong, but the evidence is not.
What is justice? Is there a way to measure it, or is it only a sentiment?
Justice is what right thinking members of society think is right and fair. It sits above the law, as not all laws are just, and should be the objective of every court to dispense. The late Lord Denning was a great believer in delivering judgments that gave just results, although crticis believed that it created uncertainty in precedent.
Should the social repercussions of a sentence, i.e., the message that it sends to society, be kept in mind?
Yes. One of the Sentencing principles is deterrence: for wrongdoers to know that their conduct is unacceptable and that they will receive a sentence of sufficient gravity to deter others from committing similar offences.
DNA analysis has revealed some serious judicial errors in the past. Isn't that a sufficient argument for abolishing the death penalty?
Those errors were committed prior to the establishment of DNA as a part of the evidential process against a defendant. Consequently, DNA-based convictions are much safer. However, the existence of the death penalty is only of academic interest in the UK, as it was abolished by the Murder (Abolition of Death Penalty) Act 1965. However, it was still available for treason. But, the Thirteenth Protocol to the European Convention on Human Rights abolished the death penalty in all circumstances. This was cemented into English Law by The Human Rights Act 1998 (Amendment) Order 2004 which came into force in June 2004.
Is it acceptable ethically to think of a lawsuit as a business opportunity?
For those engaged in litigation, it is my belief that there is nothing unethical about seizing a legitimate opportunity for a law firm to engage and generate income for the firm.
A video shows the guilt of the defendant, but because it was recorded illegally it is not admissible as evidence and the defendant goes free. Is this absurd justice?
It is not justice at all. It is an application of the relevant law. Justice would see the guilty convicted and the innocent acquitted. Rules about the admissibility of evidence are devised to dissuade improper practices by investigating agencies. However, they are sometimes judicially scrutinised too finely with the consequence that evidence which should be admitted as probative of guilt is not, purely because of a technical breach. That is poor comfort for a victim who, having endured the criminal act, suffers the added indignity of seeing the guilty walk free. They would say that justice had not been done. Perhaps they would go so far as to say such a result was absurd justice.
What do you see as the strengths and weaknesses of the jury system?
The jury system is anachronistic and is relevant to a time when defendants' rights were non-existent and judicial and prosecutorial excesses needed to be kept in check. There are some cases, eg complex frauds, where the evidence is beyond the ken of many ordinary jurors who, in a trial lasting several months, fail to grasp the essential facts and understand their relationship to the charges brought. The result has been a number of exceptionally expensive trials ending up with juries being discharged, at vast expense to the public purse. Other problems with juries is their use of the Internet to research cases, when their remit is to determine each case solely on the evidence given in court. In the modern age of the Internet and Twitter, the ability for judges to control this increasingly worrying phenomenon is limited.
The other main disadvantage of the jury system is that jurors are unable to give reasons for their decision, which is something that every defendant should be entitled to hear.
With the good quality of present-day judges and their ability to deal with both law and fact, there is no logical reason why juries should not be dispensed with. In Magistrates Courts, there are few who criticise the fairness of proceedings before the District Judges sitting there, trying cases without juries. If we trust District Judges, with this task, why do we have less confidence in the ability of Crown Court judges to do the same?
Is it necessary to maintain a costly and slow justice system in order to avoid a flood of irrelevant cases?
How does one define "irrelevant"? If legal advice has been provided to a litigant, while the case might be weak it is not (hopefully) irrelevant. The question would be posed better if it referred to weak cases.
In a perfect world, where obviously "irrelevant" cases are identified, they should be heavily penalised in costs. In that way, dissuading litigants of such cases will in turn lead to a speeding up of the system, as there will be fewer cases for courts to focus on.
How do you see the defense of royalties in an increasingly digital future?
This is outside my area of specialism
Is the amount of attention paid to crime by the mass media excessive?
No, unless the question refers to the fictional dramas broadcast as entertainment.
It is important for the public to be kept informed of serious offending and to be provided with suitable advice about safeguarding themselves. It also allows the public to engage in debate. This was recently highlighted over the case of the Norfok farmer (Tony Martin) who shot two intruders, killing one and injuring the other. The public were outraged over his treatment and sought to have the law of self defence re-defined. Martin was convicted of murder and sentenced to life imprisonment. Subsquently, in 2009, Munir Hussain was given a 30 month sentence for attacking a burglar after pursuing him out of his house. That sentence was reduced on appeal to a year suspended for two years.
What the public view as reasonable force is not always the same as that viewed by the law, although it has to be said that it was a jury in each case that convicted the defendants.
An attempt to follow up the publicly stated concerns (shared by the then Home Secretary, Jack Straw) was made through s.76 of the Criminal Justice and Immigration Act 2008 which defines what is reasonable force for purposes of self-defence.
So, public opinion does have the power to drive change in the law. And the media plays its part in bringing cases to public attention.
What continuing education do you receive in order to keep up-to-date?
Attending professional conferences, official training, reading legal journals.
Where are you headed professionally? What would you like to be doing five years from now?
More international work.
What advice can you give someone with an interest in pursuing this profession?
Be sure it is what you want to do. Be prepared to work extremely long hours and to forego any meaningful social life for the first few years, until your practice is established. In the Criminal law in particular, practice is not for the faint hearted. You definitely need a tough extrerior and lots of self confidence.
If you see it through, you will be presented with one of the most enjoyable, dynamic and rewarding careers.
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