Waiting

Please tell me the waiting is crippling everyone else?

I seem to have spent every moment that I've been within 5 metres of the internet flicking between the Portal (of Doom), thestudentroom, other 'snitch seekers' blogs and my email.

Thoroughly unproductive.

On another note, does anyone know whether there has been a 'freeze' on the portal (so that even if it were updated, no information would come through to the candidate until 31 July - like UCAS at results day) or whether it is 'live' but chambers are under threat of death should they update.

Basically, the question comes down to the time that it is acceptable to ring chambers in a quiet room to burst into tears over the phone at them. I'm guessing 8:30 am might be a little early, but if I didn't hear one way another by the end of the day, by the end of the weekend I might well just be a little bundle of nerves with a sign above my head reading 'here lyeth the remains of a failed barrister'.

Nightmare.

Sound Advice

I received a message from my boss last night wishing me luck for today, with the following message:

"...

Same advice as to witnesses:

Listen carefully to the questions and be honest with them!

..."

I thought it was a lovely analogy (especially as much of my job is chatting/preparing the witnesses before they give evidence).

Now I just need to make sure I come up to proof :)

Double fingers crossed

More good news today!

Let's hope that one will be good practice for the other. I'm having absurdly unrealistic fantasies about possible outcomes.

Any spare digits, please cross.

Ethics Questions

I'm busy cramming for the upcoming interview (having forgotten that areas such as 'contract' even existed) and so am sorting the legal knowledge for myself, have got my supervisor at work to run through with 'fluff HR questions' with me (eg: dinner party, biggest weakness, why the bar) but would like your collective opinions on two ethics questions. I don't think there is necessarily any 'right' answer, I would just like to know your thoughts.

1. You are prosecuting in the crown court. One of the jurors is wearing a 'I (heart) the BNP - whites rule' t-shirt (or similar). What do you do in the following scenarios (is your answer different in any of them):

a: A white man is accused of raping a white woman (ie: a crime with no race element and where a race element could not be perceived)

b: A black man is accused of raping a white woman (a crime with the potential to be perceived to have a race element)

c: A white man is accused of racially aggrevated assault towards his asian neighbour as it is said that he yelled a racist comment to his neighbour in the middle of a dispute in which he also spat on his neighbour. (ie: a crime where race is an inherent aspect of the offence).


2. You are prosecuting. The defendant is unrepresented. You have learned of a number of mitigating factors which the defendant fails to put forwards himself. To what extent are you obliged to put forward those matters on his behalf and how would you go about doing so?

Let's assume that 'asking a senior member of chambers' or 'phoning the Bar ethics hotline' are not options.

I know what I think my answers would be, but I would like to have them confirmed!


Thank you for your thoughts.

Pupillage progress

Well, after even more rejections over the past week (including a few of the ones I especially wanted) have just got a first round interview with one of my top ones! Whoop :)

Most happy and far less cynical with the whole process now!

All fingers and toes crossed, please!

Applications

Well, it turns out not everyone hates me.

I have just been told I have been successful at the telephone interview stage for a job and have been invited to the assessment centre.

Fingers crossed.

That, and another pupillage form submitted. This one has been my favourite so far for ease of lay out - I was able to C+P my CV into most of it an the 'free writing' sections had suitably broad, yet sensible questions with no word limit.

Toes crossed too.

Points mean prizes

Well, I have accumulated 7 rejections over the past 2-3 weeks, a mixture of OLPAS and non-OLPAS.

Will review the rejections soon - some I genuinely like far more than others.

I think (though I seem to have lost track!) I have 9 applications outstanding at the moment. I also have two half completed which I need to submit.

How are you all doing on the win/lose/draw front? Many interviews? If so, at the moment, sod off and leave me (and others) to our collective misery!

The worst thing is the people who ask, and are trying to be nice, how the hunt is going. Damn them.

Bitter times.

New OLPAS form read as thoroughly?

I was chatting with the barrister I was clerking, yesterday, and it turns out that she is on the pupillage committee for her chambers.

In terms of the number of interviews in the provinces v London, she said that in her set they get about 400 applications for 3 pupillages. They interview about 20 people. I'd be interested to hear more on how many interviews other London sets offer relative to the number of applicants.

The other discussion we had was on the new OLPAS form. I complained that as it was longer, surely pupillage committees could not afford to spend as much time on each form and so it would be read less thoroughly. She completely disagreed saying that she reads each form, in full and just does 1 hour worth of form read each night. She observed that actually, the OLPAS timetable means that chambers do have plenty of time to review forms thoroughly and that given how important the forms are to the applicant, she said she found it important to read each one thoroughly.

Comforting to know on one level, if only my form wasn't so rubbish!

Pupillage statistics: London v Provincial

Interestingly, it turns out one of my pupillage providers is less competitive than I had anticipated.

They have just sent me an email telling me that my form has been printed and who will be considering it - which is a nice touch in itself as it gives a warm fuzzy glow of positive progress before the inevitable rejection - but they have also been kind enough to tell people the odds.

There aree roughly 250 applications of whom they will interview 80 people.

Perhaps it's because this is the first time I've applied to London, but I'm pleasantly surprised. I get the impression that regional chambers tend to interview only about 10% of applicants. Whilst one of the reasons my London friends have far more interviews than me is no doubt their excellent CVs (including things like FRU, which we in the -impoverished - 'dark satanic mill' - cities of the North students can only dream of), perhaps part of the discrepancy is because London chambers interview more candidates.

Of course, I am basing this all on a single application - but I would be very interested to hear your thoughts and experiences on this one.

Or, of course, just plan scandal and rumour!

OLPAS clearing

What are you all doing re: the OLPAS clearing application when it comes to the various mini essays?

I can change many of mine to be fairly generic, but am currently unsure what to do about the 'why this chambers' section.

Provisionally, I have just written 'CLEARING' in the box and left it at that - but my clearing form isn't yet submitted so can change.

Other approaches?

OLPAS score 5.5.09

As I stayed up until 2 am on the original deadline date to finish my apps (falling asleep on the computer) I was both pleased and disappointed that the deadline was subsequently extended. By the time I fell asleep, I had done 8 applications. Luckily, I started with the ones I wanted the most as the final ones were not good!

The next day I was at a hearing which meant I did not have any internet access - hence what was for me the relative forward planning in finishing the majority the night before.

Midmorning, I then received a text from a friend telling me the deadline had been extended until the next day. I was then told that my hearing was adjourning until the next day to allow time for decisions to be made, so I went back to the office and filled in two more applications following recommendations from people in the office.

My slight disappointment with the deadline extension is therefore the idea that of the eight applications I originally made, I could have filled in the last 4 far better if I had not been so tired when typing - knowing about the extension earlier would have meant I would have left them for the next morning.

So, the OLPAS score currently stands at: 10 apps sent, 1 print off, 9 nil responses

OLPAS timetable

Crap. I have logged in and filled in the bits about name and address, but haven't actually got round to any of the rest of the form.

That would seem ok (given that we have a week) except that I'm out to dinner tonight, spending the weekend at a debating competition in Newcastle and I have a training session after work on Monday.

12 OLPAS applications in 3 days? (well, in 9-12 hours ass I have a crazy thing called work to do the rest of the time).

Possible?

New addition to blogroll

Pupilpedia's blog has now been added to the blog roll.

I firmly believe he needs a new name (and PP just doesn't sound good out loud). Perhaps on the PP theme, I want to call him Pingu (no, I don't know the link either - it's just a worrying insight into my mind. Take an aspirin, it'll be over soon!).

Thoughts?

To OLPAS or not to OLPAS, that is the question

Damn, 4 whole days off work and not a single word further into my OLPAS app. To the extent that I didn't actually log into OLPAS all weekend. Double damn.

Oh well, can feel marginally virtuous on the grounds I have now chosen the 12 sets I want to apply to. Some progress, I guess.

Debate on anonymity in rape cases

My post on 'what law would you change and why?' (I gave anonymity to those accused of serious sexual offences) has been picked up and responded to by Ms Marcella Chester in her blog abyss2hope.

She disagrees with me on a many issues. Her post is copied, in full, in italics below, followed by my response (in non-italics). As you can see, I take the view that many difference of opinion lie in the differences between the US and UK. After posting my response on her blog, I checked the US law and my assumption was right. Frankly, I find the notion of thinking its acceptable to force a rape victim to stand in court and give testimony the the defendants face appalling and a wicked example of reading the letter of the law over the spirit.

Comments are invited, especially from anyone who can correct me on Crim PR or anyone who knows the US equivalent of 'Daily Mail reader'.

M

False Allegation About Ease Of Making Rape Allegations

From This Side of the House:

Now, I think I might opt for anonymity for people accused, but not yet convicted, of serious sex offences.

I think that rape is a very serious accusation to make, one of the most serious after murder. Why, therefore, would I argue to grant anonymity for rape and not for murder? Well, it's because the accusation of rape is far easier to make.

With murder, you need a body, for starters, and then there needs to be a plausible explaination as to how you saw the murder occur (you being the accuser in this case). Murder is a crime of action, more than anything else. If you kill a person, if you don't have the requisite mens rea, it is still considered a very serious crime indeed.

The very reason Miss Middle of Manchester claims that a rape allegation is easier to make is why in fact the accusation of the crime of rape is harder to make and why rape is so under reported.

This explanation does demonstrate why false accusations of, "she wasn't raped," against living rape victims are especially easy to make. For starters, there is no body to be disposed of.

False allegations in murder cases are made and often come from the murderer, who points the police toward someone who is innocent. Yet this fact is ignored.

Gerald Pabst is one example of someone who successfully pointed the police toward an innocent man who was wrongfully convicted and later exonerated. Pabst was aided in his lie, which helped wrongfully convict Clay Reed Chabot, by twice passing polygraph exams. Pabst was eventually charged after he was matched via DNA to the murder of Galua Crosby.

Since this type of false allegation is in fact easy to make, then, by her own logic all those accused of murder should have their identity shielded unless or until they are convicted.

If Miss Middle of Manchester is claiming that she would find making -- true and false -- rape allegations easy to do then she needs to state this directly rather than using a blanket statement to cast unfounded doubt on all those who do report having been raped.

As a volunteer victim advocate for over 9 years, and as an activist, I have never met or talked to any rape survivor who found reporting easy. Even for those who were determined to see their rapists held legally accountable, reporting was not easy.

However, I have seen how easy it is for accused rapists to make the allegation that they are the victim of someone who should face criminal charges. I have seen how easy it is for people who claim to be against false allegations to make the false allegation that a lack of charges, dropped charges or an acquittal are proof that the reported rape never happened.

A variety of excuses are used to deem certain rape victims non-credible and therefore never to be believed. It can be the victim's possible motives for lying, being drunk, criminal history, profession, marital status, prior reporting of rape, etc.

I've had a man leave a comment on my blog that an alleged victim wasn't credible because she is black and the alleged rapist is white with a link to a report that misuses US crime statistics to "prove" that white men don't rape black women.

The list goes on, but none of these listed items are a magical protection against rape. Yet in far too many cases they are a magical protection for rapists who make false accusations against those they raped.

The ease and success of these false allegations is aided by Miss Middle of Manchester's next paragraph:

With rape, every part of the act is legal, providing it is done with consent. Rape, as a crime, therefore depends on the 'more difficult to prove' issue of consent. The complainant and the accused can both agree that they had sex, the only fact in issue is whether she said 'no' or not and the evidence for that is almost certainly going to be less cogent than a dead body.

This allegation is older than I am and is no more true for the crime of rape than for any other crime. Punching someone is legal with consent and in fact people pay to watch people punch each other. Yet there is clearly far more than 'no" that separates a boxing match from a physical assault where the criminal uses his or her fists.

Few people would accept the allegation that the only difference between murder and assisted suicide is whether the alleged victim said "no" or not. We get that these 2 experiences are far different so that baseless claims that a murder was an assisted suicide won't be viewed as being reasonable doubt. If this excuse is widely accepted we understand how this helps those considering murder and how this endangers public safety.

"They had sex," is not what has been agreed upon as fact when an alleged rapist uses the defense of, "it was consensual." Yet this lie gets repeated by those who claim to be against false allegations.

"We had sex," is a counter allegation.

What the failure to see, "we had sex," as an allegation does is create the illusion that rape and consensual sex are indistinguishable by anyone who wasn't there and indistinguishable by the rapist who claims that "no" wasn't heard or understood. This is a very dangerous false allegation and too easily made.

We certainly would never believe that murderers who claim "assisted suicide" simply misunderstood the situation. We certainly wouldn't tell people in crisis that they must clearly communicate that they don't want to commit suicide as murder prevention.

The false allegation that rape and consensual sex are almost identical helps rapists rationalize their crimes because if there is no difference other than "no" between consensual sex and rape then there is no reason for rape to be a felony or even a serious misdemeanor.

This dangerous false allegation is why so many rape victims -- who are believed -- are asked by an investigator if they really want to ruin their rapist's life by continuing with a true allegation of rape.

This explains why so many rape victims face harassment, threats and assaults by those championing people accused of rape.

Those who report rape have been arrested on unrelated charges, murdered, and become targets of murder-for-hire plots.

Those who report rape have been falsely arrested for making a false allegation. This can happen because investigators make bad assumptions. Or because the investigator succeeds at coercing that rape victim into recanting without bothering to do an actual competent investigation.

Here are details from the false allegation in Pennsylvania based on bad assumptions:

The woman was working as a service station clerk in Cranberry on July 14, 2004, when a man entered the store, sexually assaulted her at gunpoint, then stole $606.73 from the cash register. She called for help from local police, but the responding officers were skeptical of her account. Ms. Reedy ultimately was charged in January 2005 for making false reports to police, theft and receiving stolen property. She lost her job and spent five days in jail while she was pregnant.

So what allegedly is an easy action for rape victims to take, for this woman turned into multiple false charges. These false charges would have likely led to a wrongful conviction if her rapist hadn't been caught raping another woman under similar circumstances in a different county and if that rapist, during the interrogation, hadn't confessed to committing the rape other investigations guessed had never happened.

The harm would be to more than this woman's reputation. Being convicted would make her much more vulnerable to being raped by those who know that a woman convicted of filing a false police report would be labeled as a serial false accuser if she rightfully reported rape a second time.

The township official shrugged this injustice off by saying that hindsight is 20-20. That makes as much sense as shrugging off amputating the leg of someone who went in for knee replacement surgery. Both are malpractice.

Hearing the equivalent of, "so sorry, the doctors here are doing the best they can," should send chills down people's spines.

This is the type of investigative practice which can also lead to wrongful charges against those who were not victims of rape and who were wrongfully suspected of committing violent crimes. However, many people who claim to care about dangerous underlying practices shrug these proven injustices off as acceptable collateral damage because the damage was done to someone who reported rape.

Most of those who spread this meme about the ease of reporting rape justify spreading this false allegation in the name of protecting people from false allegations. This is nonsensical unless you don't believe rape victims are innocent and don't care about false allegations made against those who are also raped.

It doesn't matter that Miss Middle of Manchester goes on to write that her gut tells her that false rape allegations are rare.

Her beliefs about rape will, as she notes, cause some jurors who know that the prosecution has proven the defendant guilty to vote for acquitting a rapist because the process of being rightfully charged and rightfully tried seems to be a sufficient punishment for rape. This belief is based on those jurors' minimizing beliefs about rape.

That this action will cause someone who was raped to be labeled by many as a false accuser will be of no import to those jurors since the only person's welfare they are thinking about is the rapist's.

Miss Middle of Manchester needs to educate herself about the full reality of false allegations and the reality that rape is not merely consensual sex with a, "no," preceding it.

__________

My response:

Dear Marcella,

Thank you for both taking the time to read my blog and providing such a considered response.

Firstly, by way on context (for those who just read this response), the question (and 'answer') was "what law would you change and why?" and the far more subtle sub context was that it was a question from a pupillage application form and so I wanted a somewhat more 'legal academic' argument than necessarily advocating something I am actually passionate about.

That said, I fear that my comments have been misunderstood - which is obviously my fault for being imprecise with my words.

Before I address my main contention, it may seem relevant that I write from an English law background and our criminal procedure rules are somewhat different from those in the US. In the UK, as soon as a woman makes an accusation of rape, the presumption is that she is granted anonymity. From that point, she will be referred to as Ms A in every public document. The media is prohibited from ever publicly naming her, in the allegations she will be referred to as Ms A, throughout the trial, the public may be restricted, for her evidence, she does not have to be in the court room (and if she is, she will be behind a screen) and she will usually give her evidence via video link and therefore not see the defendant at all. I believe that the situation is very different in the US system where the legal injunction that the accused has the right to face his accusers is taken at its most literal. I believe, and please correct me if I am wrong, that when a woman makes an accusation of rape in the US that then goes to trial, she must then go through the additional ordeal of giving her evidence in person, whilst seeing the defendant in the court room. I don't make any claims that the UK system 'cures' the problems of reporting a rape, I merely think that the system, rightly, tries very hard to make a difficult experience somewhat easier.

So where do I, respectfully, disagree with you?

Firstly, I believe that implicit in the model that I gave (although, again, it assumed a reasonably degree of knowledge of criminal procedure) was not from the moment of the first accusation - as you rightly point out, all kinds of crazy accusations are made which have no substance or proof for all manner of crimes - but from a later moment. If asked to consider, I would probably say from the moment of arrest (or that the warrant was issued, where applicable) - ie: from the point at which it appears there is a prima facie case against the defendant, but before the media could possibly be interested (or know anything).

I agree that this would not assist in the example you refer to of Pabst - no law is perfect - but I believe that it goes to a deeper problem.

I don't believe that for a woman who has suffered a rape that reporting it is easy. I don't believe that the number of 'cry rapes' is ass high as the Daily Mail would like us to believe (Fox News is probably a reasonably equivalent here). However, I do believe that there is a higher incidence of women who have not been raped reporting a rape and it being taken to a higher level than of the same happening for murder, for instance. Even taking into account evidential problems of 'he says, she says' as well as the trivialisation of rape within the CPS (who decide whether or not to prosecute a case on the basis of 'reasonable prospect of success'), a reporting --> conviction rape of less than 2% in some areas of the UK has to invite some comment of this nature.

I agree that the 'she consented' defence is 'too easy' to make. Because the evidential burden rightly lies on the prosecution, there will always be a number of cases where this is a successful defence where it should not have been.

On the issue of 'consent' for assault, again, I believe there are differences between UK and US law. In order to consent to assault for sport, there are a number of criteria that have to be 'ticked' - a 'boxing fight' on the street at night where one party claims the other consented would not cut it under UK law.

I cannot agree with your example of assisted suicide as it is inherently a medical procedure and as such, as fairly explicit documentary rules for consent.

My point is that rape is a unique crime. 'Dark alley' rape may be easy to prove, but given that something like 90% of victims know their attacker and the overwhelming majority of rapes take place in private, within a dwelling, evidence of consent is obviously harder to obtain.

Equally, I stand by my statement that rape is a crime of Mens Rea. In the UK it is defined as "the insertion of his penis by A into the vagina, anus or mouth of B where B does not consent and A does not reasonably believe B consented" (Sexual Offences Act 2003)

The crux of the matter is therefore a reasonably belief in consent - ie: an issue of MR. I also cry scorn on the idea that 'no' is a minor thing in this instance. The very existence of that 'no' turns a generally mutually pleasurable act into a violation of the most severe kind. I have said why I think that your assisted suicide point was irrelevant in this context, but to return to it for an instance #9and to assume that we are working in a frame work where assisted suicide is legal) the issue of 'no' would again be the crux of the matter there. If AS is legal, then the giving of a lethal dose of (say) morphine is a neutral act. It is only where there is no consent that it becomes problem.

My final point was a more subtle one on the intricacies of popular perceptions on collective decision makig in a retributive environment - but again, I think the legal differences are so great that it would not necessarily apply in the US. In the UK there is a perception amongst the Daily Mail reading public that there is a lack of parity in rape cases and that proceedings are biased toward the complainant - one aspect of which is granting anonymity to Ms A but not to the D. It doesn't matter whether this is true or not, those people are making decisions based on their perceptions. If a change can be implemented that causes no harm to the case, but could easily have a wider social benefit, it is surely incumbent to consider the issue.

I hope you will not mind if I copy your original article and my response for my blog, as well as posting this response here.

________________

I should also note that I am particularly grateful for the opportunity to rehash the arguments and improve on their clarity before I ever have to do the same thing in front of a committee. I also recommend her blog for useful example in debates on this issue.

What law would you change, and why?

Traditionally, I've gone for my 'change maternity leave into parental leave' rant. Then there are all sorts of laws which are great to change in debate world, but less suitable to discuss in an interview.

Now, I think I might opt for anonymity for people accused, but not yet convicted, of serious sex offences.

I think that rape is a very serious accusation to make, one of the most serious after murder. Why, therefore, would I argue to grant anonymity for rape and not for murder? Well, it's because the accusation of rape is far easier to make.

With murder, you need a body, for starters, and then there needs to be a plausible explaination as to how you saw the murder occur (you being the accuser in this case). Murder is a crime of action, more than anything else. If you kill a person, if you don't have the requisite mens rea, it is still considered a very serious crime indeed.

With rape, every part of the act is legal, providing it is done with consent. Rape, as a crime, therefore depends on the 'more difficult to prove' issue of consent. The complainant and the accused can both agree that they had sex, the only fact in issue is whether she said 'no' or not and the evidence for that is almost certainly going to be less cogent than a dead body.

I also wonder whether treating a person accused of rape with more sympathy may improve the conviction rate. There can be no doubt that some women 'cry rape' and are lying, however, my gut feeling is that this is a very rare phenomenon which is exaggerated when discussing conviction rates. However, the perception that it is frequent does create a certain amount of sympathy for those accused of rape 'perhaps she's just being nasty - it'll destroy his reputation whether or not he is convicted'. I wonder if a jury, who are perhaps sure that he did it, but only by a narrow margin, might sometimes think that the accusation means that he has suffered enough, and acquit on that basis.

What are you views? And what law would you change, if you had the chance?

BVC provider query

I have just been asked the following by a friend, and would be interested in your opinions:

He has applied for the BVC and has offers from MMU, UWE and City.

He did his undergraduate at MMU.

He cannot decide between MMU and City. The course fees for MMU are c£9,500 and the course fees for City are £14,500. He has applied for an Inns scholarship but does not know if he will get it. He has to make his choice on BVC provider before he will know this information.

I told him that knowing what I do now, I would probably still choose MMU as it looks after its students more (for all its flaws). OTOH, City has a higher pass rate (though having seen a sample exam and heard about the teaching, I think it may be due to different exames) and he wants to avoid being 'just' MMU all the time.

Your views? City or MMU?

More on Macmillan

Well, after a bit more research I found out here that the Crystal Macmillan prize is "A memorial prize [which] is awarded annually in her name by the society of the Middle Temple to the highest placed woman student in the bar's final examinations".

Who'd have thought it?

Silks 2009

Well, it turns out that Scary Defence Barrister has just been made a Silk.

Makes her even scarier, IMHO, but she deserves it really.

Riding out a recession? Training contract

Well, it seems the best way to ride out the recession is to be a trainee in a law firm as they are almost completely unsackable - even for gross misconduct, let alone minor details like profit margins.

In order to sack a trainee, you need the permission of the SRA....

More here.