A Simple Guide to Legal Professions - Barristers & Attorneys

Inns of Court, London : 1. Lincoln's Inn, 2. Middle Temple, 3. Inner Temple, 4. Gray's Inn (Photo credit: Wikipedia)

Having previously looked at the overarching definition of what constitutes a lawyer in the UK, and then the more specific definition of a solicitor with their particular responsibilities, the second instalment of this article focuses on the comparative definition of a barrister, with a further mention of the concept of attorney.

Barrister/Advocate
In contrast to solicitors, barristers in England and Wales, or the equivalent role of advocate in Scotland, have the responsibility of representing legal cases in court. Until the recent exception of solicitor advocates, they have had the particular privilege to appear in the higher courts where solicitors have not traditionally been allowed. They are rarely appointed directly by their client but instead by their client’s solicitor and cannot be enlisted to carry out litigation on a client’s behalf - that being the role of the solicitor. What’s more they only have the authority to act on their client’s behalf in advocacy when they receive instruction from the client or their solicitor and so do not possess the same powers of attorney as solicitors. In British courts barristers can usually be identified by their horse hair wigs and gown.

The collective term for the profession is the bar (a reference to the physical part of the courtroom they would have occupied) and so when a lawyer has the achieved the necessary qualifications and has the demonstrated that they have an advanced knowledge of case law they may be able to join the bar (i.e., become a barrister). The admission process is overseen by the four Inns of Court - The Honourable Societies of Inner Temple, Middle Temple, Lincoln’s Inn and Gray’s Inn - to one of which every barrister must belong. When the Inns invite qualified lawyers to join, the individuals are said to have been called to the bar. These ancient Inns of Court, all occupying distinct sites on the outskirts of the City of London, represent all members of the bar and, as such, are also responsible for their regulation.

Barristers are required to operate as lone entities and therefore cannot form the partnership firms that other lawyers do. Instead, they often locate themselves alongside fellow barristers so that they are able to share resources, such as administration assistance and physical infrastructure, and receive the economies of scale that would be available in partnerships despite being distinct operations. These collaborative set ups are called chambers and are often located within the confines of one of the Inns of Court.

Attorney
The term attorney is perhaps most familiar to many of us in the UK as an American term for a type of lawyer through exposure to it in US films and TV, however, in the UK it has a distinct alternative meaning. It describes anyone who is appointed to represent another individual in a legal context irrespective of whether they are legally trained. The authority invested in an attorney is referred to as the power of attorney (POA), a phrase which appears far more prevalently. The term originated from the title of the old English profession of a lawyer who would act in the common law court. This title was subsumed by that of a solicitor in the 19th century as so has only been retained in this very specific context. However, in some countries the original meaning has been retained and evolved, as is the case notably in the US where it now refers to lawyers who are able to represent the state during court proceedings.

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A Simple Guide to Legal Professions - Part 1

English: Statesmen No. 616: Sir J Rigby QC MP. Caption read "Mr Solicitor". (Photo credit: Wikipedia)

Many of those who do not work in the legal professions here in the UK often use the terms lawyer and solicitor interchangeably without every truly understanding the distinction between the two concepts. One might refer to their divorce lawyer and/or their divorce solicitor when describing the same role. This two part article therefore aims to clarify what the actual distinction is between the two titles as well as explain how the concepts of barristers and attorneys fit into the equation. The first instalment focuses on lawyers and solicitors in particular.

Lawyer
The term lawyer is a generic name for a legal professional. In the UK the term is retained for this use to describe any individual that is qualified to practise the law, although in Scotland it’s technical use is reserved for solicitors and advocates (see below) only, whilst in some other countries it can also be restricted to describe specific legal professions. All UK lawyers fall into the two general categories of legal professional, solicitors or barristers/advocates.

The responsibilities of a lawyer can include advocacy (legal representation/argument) in courts or administrative hearings, criminal prosecutions or defence representation, the drafting of court documents, providing advice during legal proceedings or within the day-to-day operations of an organisation, conducting legal negotiations, the agreeing and drawing up of contracts, conveyancing (facilitating property transactions) and probate work (administering the estate of deceased individuals). Depending on the type of lawyer and the responsibilities they have they can operate as individual practitioners, within legal partnerships or as in-house employees within businesses or organisations.

Solicitor
A British solicitor is, therefore, a type of lawyer. Solicitors can cover a broad range of the practise areas mentioned above, but in general the distinction with barristers is made on the fact that solicitors primarily deal with litigation rather than advocacy (the realm of barristers). That is they liaise directly with their clients, providing advice, preparing documentation, processing their instructions and making court applications for example. A solicitor also has the capacity to act as a client’s attorney in that they can legally represent client in legal proceedings and carry out litigation on their behalf. Acting in their stead they have the authority to perform tasks such as the signing of documents or performing negotiations with opposing parties and their legal representation.

Solicitors can however take on advocacy roles in the lower courts (i.e., Coroner, County, Magistrate, Sheriff & Tribunal Courts). What’s more, since the 1990s, the boundaries of distinction with barristers have been blurred further with the introduction of the role of a solicitor advocate who is also permitted to represent a client in the higher courts - previously a privilege reserved for barristers only. The relatively new solicitor advocate role is granted based upon specific qualifications and training and the nature and extent of their previous roles and experience within the profession.

The second instalment of this article provides further explanation as to the idea of advocacy and how that relates to the role of barristers, as well as the concept of an attorney in the UK legal system.

© Stuart Mitchell 2012
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A Glossary of Terms Relating to Corporate Law

This article provides an introduction to a few of the key terms and areas of activity in corporate or company law. Corporate lawyers will be required to assist with the complexities of all sorts of reorganisations of business operations, mergers and acquisitions and tax issues and the snippets below are only an introduction to these topics.

Mergers
A merger is to some extent self explanatory. It is process of two companies choosing to join together to form one new company, pooling their assets and liabilities to create efficiencies and increase market share. A merger is distinct from an acquisition (see below) because the companies join forces on a more-or-less equal footing with control of the newly formed entity being shared, rather than one company taking control of the other.

Where two companies that operate in the same market, and are therefore competitors (providing the same service or function), join forces it is known as a horizontal merger. Vertical mergers on the other hand involve companies at different steps in the supply chain, for example a tractor manufacturer and a supplier of components merging.

The opposite of a merger is, logically, a demerger and describes a scenario whereby a company splits in two or a part of a company splinters away to form a new smaller company.

Acquisitions
An acquisition involves the process of one company taking control of another company, often referred to as the target. In relation to publicly listed companies, the process is otherwise known as a takeover, and would be achieved by buying up at least 51% of the target company’s shares. Takeovers can be described as being hostile or friendly. Hostile takeovers occur when the purchasing company do not agree the takeover with the board of the target company, whereas friendly takeovers usually involve offers being made by the purchaser, terms being negotiated and both parties ultimately reaching an agreement.

Subsequently, the two companies can be consolidated to form a single entity in what is commonly referred to as a merger, or, as is often the case, they are maintained as separate corporate entities with the control of the target company passing to its new owners. The collective term Mergers and Acquisitions is used to refer to all such deals because in practice the lines can get blurred between mergers and acquisitions, frequently because acquisitions will be referred to as mergers for PR reasons.

Joint Ventures
This term describes scenarios in which two or more companies partner to form a new company by contributing assets and resources rather than merging the entirety of each company. JVs are usually established to run for a set term and often with a specific strategic aim, for example, to complete a construction project or break into a particular market. The individual companies will share the spoils of the enterprise as well as the liabilities.

Reorganisations
A company can undergo a reorganisation in a number of ways. They can reorganise the structure of shares issued by the company, for example issuing each shareholder with one share priced at £2 for every two they had previously priced at £1. This is otherwise known as a corporate action. Secondly, they can reorganise the company’s structure to, for example, sell off or shut down operations which are less successful and concentrate on those that are. Thirdly they can again reorganise the company’s structure but this time by merging areas of operation within the company.

Corporation Tax
Otherwise known as company tax, it is the tax levied by the HMRC (Her Majesty’s Revenue and Customs) on the money that corporations make, in other words their income and any capital gains (known as chargeable gains) they generate. It is roughly equivalent to the income tax and capital gains taxes that individuals are liable to pay.

© Stuart Mitchell 2012

The History of the Old Bailey - Expansion

Old Bailey (P1000292) (Photo credit: swh)

Having been resurrected after the Great Fire of London, the Old Bailey court buildings saw significant developments throughout the Georgian period alongside its neighbour, Newgate gaol, until it was completely rebuilt at the start of the 20th century. The second instalment of this article tells this story, arriving at the Old Bailey we know today.

Georgian Developments
The newly rebuilt Old Bailey courts were open to the elements until 1734 to reduce the prevalence of diseases and with good reason it seems. After they were enclosed to improve privacy, typhus became a common problem, accounting for 60 souls in one outbreak alone, the Lord Mayor amongst them. The buildings saw further developments between 1774 and 1824 when a new court was added. Following the fire and up until 1834, the courts had had a limited remit as the court for London’s shire county of Middlesex but, in 1834, the Old Bailey took on responsibility for hearing cases from across England as it became officially recognised as the Central Criminal Court for the first time.

In its role from the time of the Great Fire of London to its designation as the official central court for England & Wales, the Old Bailey was also responsible for hearing all death penalty cases in the capital due the the presence of the neighbouring Newgate prison. Newgate became the holding gaol and the final destination for those awaiting the ultimate punishment and indeed the hangings of convicted prisoners were performed just outside of the gaol and court buildings right up until 1868. The gaol and the courts of the Old Bailey were connected by a passage known as Dead Man’s Walk where crowds of spectators would gather to admonish the guilty party on their short trip to the gallows. The popularity of this spectacle grew to the extent that the court authorities were forced to build an underground passage for the condemned after one single crushing incident in 1807 which killed 28.

20th Century Development
Up until the twentieth century the Old Bailey and its courtrooms were annexed to its much larger next-door neighbour, Newgate prison. In 1902 however the last of the ancient and infamous gaol was finally demolished and in its place the modern Old Bailey was constructed and extended to form the buildings that are much more recognisable to us today.

This new Old Bailey was built in an Edwardian Baroque style by the architect Edward Mountford, the man who was also behind the town halls in Sheffield and Lancaster. It was complete with a ceremonial entrance, still only deemed fit for the Lord Mayor and royalty, as well as the famous dome with its iconic and unmistakable Lady Justice figure stood upon it. The Lady Justice herself (a derivation from the classical goddesses of justice, e.g., the Roman Justitia) was created by the sculptor Frederick Pomeroy with the sword in her right hand and scales in her left to signify the weighing-up of evidence and the application of justice respectively. The new grand Old Bailey finally had its official opening by the reigning Edward VII in 1907.

However, a third of a century later the building suffered extensive damage from German bombing during the London blitz and the building wasn’t fully restored to its former glory until some years into the 50s. The interior of the Great Hall beneath the dome, for example wasn’t completed until 1952 although it was updated to include paintings which reflected its turbulent recent war history, the older history of the city of London as well as key figures in the history of law and justice (and of course royalty). The Blitz wasn’t the last trauma to hit the buildings of the Old Bailey though as they were also damaged by a strategically placed IRA car bomb in 1973 - perhaps a perverse testament to the role that the courts play and their importance in criminal law proceedings in the UK. Visitors to the courts can still see a shard of glass which became embedded in the wall above the main staircase as a result of the explosion.

The final or most recent stage in the development of the Old Bailey complex came the year previous in 1972 when it was extended with the construction of the new South Block boosting its capacity and taking its court count to 19 - a long way from its original incarnation as a single courtroom annexed to the long gone Newgate gaol.

© Stuart Mitchell 2012
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The History of the Old Bailey - Background & Origins

English: Plaque Old Bailey Plaque on the wall of the Old Bailey courthouse commemerating the site where the old Newgate prison used to stand (Photo credit: Wikipedia)

The Old Bailey is one of the most famous institutions relating to law and crime in the UK and perhaps beyond. The building and courtrooms of the Old Bailey have been the stage for many of the country’s highest profile criminal cases down the centuries and so the name, as well as the building with its domed roof and gold statue of Lady Justice, have become symbolic of the judicial system and the courts of London and the UK.

Background
The name the ‘Old Bailey’ is used to refer to what is more accurately the Central Criminal Court for England and Wales (Scotland & Northern Ireland have their own) and the buildings that make up the court complex. The courts are to be found on the edge of the City of London on the corner of the Old Bailey road and Newgate Street.

In its role as a crown court, the Old Bailey has and does witness the most significant and serious criminal cases from around the capital as well as a few, when their specific circumstances warrant it, from elsewhere across England and Wales. As a result it has the highest profile of any criminal court in the country and so it is referred to extensively in popular British culture. The iconic Lady Justice statue atop the domed roof symbolises British justice whilst the functional entrance to the courts in south of Old Bailey has become very familiar to us all from countless news reports down the years.

Early History
The common-use name for the courts is actually taken from the name of the street on which it is found. The name of the street in turn refers to the fact that it was historically the site of the western segment of the old wall, or bailey, surrounding the city of London. The wall originally dated from the Roman occupation and a small portion of it can still be seen in the basement of the Old Bailey court buildings.

The site immediately to the north of the Old Bailey was the location of a gate within these walls which could also trace its origins back to the Roman era and which sat across the old Silchester to Londinium Roman road. The imposing gate buildings, which became known as Newgate, were appropriated to house criminals entering or leaving the city and in 1188 the first incarnation of the infamous Newgate prison was constructed at the gate on the orders of Henry II.

The Old Bailey courthouses evolved as an addition to the Newgate prison whilst the prison complex was developed and improved in the 16th century using funding from the late Sir Richard Whittington (the inspiration behind Dick Whittington). The first record of the actual law court dates back to 1585 although that, along with the rest of the prison complex were destroyed in the 1666 Great Fire of London and whilst the prison was rebuilt in 1672, the courts were not reestablished for a further two years.

© Stuart Mitchell 2012
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Key Marriage and Divorce Terms Explained

Portrait of Henry VIII (Photo credit: Wikipedia)

For couples entering into marriage as well those coming out the other side, emotions run high for contrasting reasons, however it is always worth getting to grips with a few key legal concepts to make the transitions smoother.

Mediated & Collaborative Divorces
A particularly expanding side of divorce law and procedure is the area of mediated and collaborative divorces. These processes aim to ensure that conflict and hostility are removed from divorce (for the sake of the individuals involved and their families) and that the parties concerned work together as much as possible to achieve an outcome that suits each as far as possible. The techniques both use open channels of communication between the parties to minimise misunderstandings and promote co-operation.

Collaborative divorce processes involve the parties sitting around a table together (figuratively or literally) with representative lawyers, neutral financial experts and all relevant information in an attempt to find agreement without the need for a court hearing. If a resolution is not found and the case goes to court, neither can the discussions that occur during the process be used in court or the lawyers involved go on to represent either of the parties.

Mediated divorce is similar to collaborative divorce but occurs during a court hearing. It employs an impartial lawyer as a facilitator who acts as a go-between throughout the hearing to ensure that there is an open channel of communication and that negotiations have structure and feasible goals.

Pre-Nuptial Agreement (Prenup)
Otherwise known as an antenuptial or premarital agreement, a prenup is an increasingly popular agreement sought by couples entering into marriage to ensure a pre-agreed and smooth division of their assets in case of divorce. These ‘contracts’ are used traditionally in Jewish and Islamic law and are legally recognised in some continental European countries where they can be binding regardless of events leading to the divorce. In the US, however, they are not legally binding although they can be taken into account as an indication of each party’s intent as they entered into the marriage; whilst in the UK, prenups have only very recently been acknowledged as having a (limited) potential to influence divorce outcomes in certain circumstances.

Annulment
In contrast to a divorce, which is the dissolution of a valid marriage, an annulment is the ruling that a marriage is null and void. In other words the marriage was never legally valid in the first place (void ad initio) and so can be considered to have never existed as a valid legal state at all.

Annulments can be sought and granted if either party in a marriage was not in possession of all relevant information and free will when consenting to the marriage, or was not legally entitled to marry. Reasons can include duress, insanity or deception at the point of consent, as well as polygamy (the taking of multiple spouses) by either party or the individuals being closely related. Despite the fact that annulment renders a marriage invalid for its duration, children born in a marriage which is subsequently annulled can still be deemed as legitimate, depending on the jurisdiction involved (as is the case for the example in US).

Historically, annulments were commonplace under the Catholic Church where a valid marriage is a contract for life and so the only way for a marriage to be dissolved is to determine that it was never valid in the first place. This leads to the interesting contradiction that Henry VIII didn’t technically have six wives as is common wisdom. As three marriages were annulled he can be said, in legal sense, to have only had three.

© Stuart Mitchell 2012
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A Brief Introduction to Criminal Law - Aims

In the UK, as in much of the world, the idea of breaking the law is closely aligned with the idea of committing a crime. However, crimes in truth only result from breaches in criminal law, a defined and restricted area of law which is looked at further in this two part article.

Criminal law can generally be thought of as the law of the land or the law of the state. That is, it refers to the laws that the state puts down in writing, legislature, to protect itself and its citizens. As a result, a breach in criminal law will result in a case being brought by the state (in the UK, the crown prosecution) against the accused offender.

It is helpful to consider criminal law in contrast to civil law, where cases are brought by individual parties against other parties, and which is based on a common law (or case law) framework where the law is not defined in legislature but instead cases are settled in accordance with precedents set elsewhere in the judicial system.

In criminal law a breach which leads to a conviction will, generally speaking, result in a punishment for the offender. These punishments will have a number of aims including one or more of the following:

Retribution - inflicting hardship on the offender to reflect the hardship they inflicted on their victim.
Deterrence - of the offender from committing further crimes as well as other potential offenders
Incapacitation - of the offender to prevent them committing further crimes
Rehabilitation - of the offender so that they can add value to society and to prevent further crimes
Restitution - to restore the legal status of the victim, as is the aim of civil law (see below)

These aims are not mutually exclusive. Incarceration as a punishment, for example, may fulfill the first three and, depending on the nature of their time in prison, the fourth as well.

The aim of retribution for retribution's sake is less popular now despite being key to the development of criminal law down the ages. It originated from a concept similar to restitution but with the aim of restoring a universal balance where the offender should suffer the equivalent consequences as experienced by the victim. This lead to the establishment of institutions to restore this balance, to determine, formalise and measure out the retribution rather than allow personal retributions (vendettas, revenge) within a society which may have gone beyond the scale of the original offence.

The earliest forms of criminal law therefore followed the lines of lex talionis (a punishment to fit a crime) otherwise referred to as ‘an eye for an eye’ (after a passage in the Old Testament/Torah). However, the ideas of ‘turning the other cheek’ from the New Testament and more generally that ‘two wrongs don’t make a right’ (‘an eye for an eye leaves everyone blind’) have tempered this philosophy, particularly in the west.

The similar concept of restitution is still the aim of civil law; similar except that civil law aims to restore the legal status of the ‘victim’ as if the offence hadn’t happened regardless of whether that acts as a punishment and/or deterrent and instead of aiming to restore universal balance.

The second part of this article looks at the key concepts that define a crime and criminal law including those of actus reus and mens rea. However for those looking for further advice on criminal or civil law proceedings they should seek professional advice from qualified criminal law solicitors or, for example, family law specialists respectively.

© Stuart Mitchell 2012

2010 Divorce Rates and Longer Term Trends

On 8th December, the Office of National Statistics (ONS) released the latest figures on divorces taking place in 2010. Having recently written about the trends over recent years, and what this tells us about the health of marriage as an institution, it is worth considering how these latest stats affect the bigger picture.

The headline is that the number of divorces in 2010 rose; the first annual rise in eight years (since 2003) and seemingly out of step with the broader trend. The total number of divorces that occurred in 2010 came to 119,589 representing a 4.9% increase on 2009’s 113,949 divorces. Although, on the surface, this does seem to suggest a rise in the prevalence of divorce the figure could potentially be explained by other factors such as a larger married population - more tellingly the divorce rate, that is the percentage of the married population that got divorced, also rose from 10.5% in 2009 to 11.1% in 2010. So does this reinforce the perception that more marriages are failing?

Rather than an indication of a broader shift in societal attitudes it is more likely that the results for 2010 mark a glitch in a longer term decline in divorce rates. This kind of glitch or spike in divorce rates has been seen at other points in recent history when the country has been on the tail end of a recession. In 1993 the rate spiked following the recession between 1990 and 1992. There seems to have been a lag between the worst of the financial troubles and a jump in divorces and it seems plausible that this could also hint at causality; financial issues are one of the major causes of relationship breakdowns and the lag may be explained by a) an initial reaction to ‘pull together’ to deal with money issues, b) the build up of subsequent pressures in the relationship and then, c) once the relationship has broken down, the time it takes for divorce process itself to complete.

In terms of the broader picture, the actual number of divorces has been noticeably falling for the last decade although it is easy to attribute this to the corresponding fall in marriages and previous divorce trends eroding the size of the married population in the first place. The fact that the divorce rate has been steadily falling too suggests that those who are married are less likely to split.

Further evidence comes from the profile of those couples involved. More divorces involved individuals aged 40-44 than any other age group in 2010 but interestingly it seems that the age at which people divorce is creeping up (both men and women had 0.2 increases to 44.2 and 41.7 respectively), albeit in line with the rise in the age at which people are marrying, whilst the duration of marriages has plateaued. Moreover, the highest rate of divorces for men in 2010 was seen in the 30-34 year old age group rather than the 25-29 group in 2009 (women were unchanged). This may all suggest that marriages are starting later but are beginning to last a little longer.

Despite the latest figures telling us that 33% of marriages starting in 1995 had failed in the 15 year period to 2010 (up from 22% of those in the same 15 year period from 1970) the ONS is suggesting that the figures they have obtained so far may indicate that the rate of divorce before the 15th year for more recent marriages may be likely to decline. Again this adds a little more weight to the argument that couples now seem to be waiting longer (cohabiting), being more cautious but ultimately, as a result, being more successful in their marriages.

In summary, it would seem most likely that the rise in divorces in 2010 is a spike, as witnessed in previous periods of recession, rather than a longer term trend. There is still evidence in the age and duration of those getting divorced to support the bigger picture that couples are being more successful in marriage, but only time will tell.

If you are looking for more information on the legal support available to you through the divorce process then visit Family Law London.