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Past Pupillage Applications (part 1)

Past Pupillage Applications (part 1)

Having been offered a pupillage at last (see Pupillage Interview:  Success!), I decided it’s high time that my computer got a spring clean. Sorting through the mass of digital files, I happened upon more than two dozen old applications to chambers.

Some of my drafted responses made me cringe a bit, such was their eagerness or naïvety. This is particularly true of my earliest efforts. However, after reading through my old forms for a while, I noticed my style improving. Ultimately, I found a few examples that I was proud of… and not too embarrassed to share!

Thus, in this post and the next, you’ll find responses to real pupillage application questions — copied and pasted from the original, submitted forms. Every response here is an example of success; that is, it comes from a form that resulted in me being invited to a first interview (at least). For each response, I’ve identified the specific chambers that I applied to.

It is my hope that these responses will serve as a useful example for others, especially would-be barristers struggling to overcome writer’s block. At a minimum, posting these responses helps to further document my journey.

Why would you like to undertake pupillage at Cornwall Street? [250 words]

Pupillage at Cornwall Street could enable me to develop my advocacy skills by dealing with general criminal matters (the best type of work for a dedicated advocate to start with), whilst providing the opportunity to expand into better-paid areas such as regulatory offences. Cornwall Street offers a range of “advocacy-heavy” civil work, as in (e.g.) employment and personal injury, which could also keep me in court, earning as an advocate.

Winning a national mooting award (judged by a Supreme Court judge) demonstrates my aptitude and potential for civil appellate work of the kind recently undertaken by Cornwall Street member, James Hall. I would hope to be in a similar position eventually, contributing to chambers’ reputation through successful appearances at the Court of Appeal.

As an intending barrister who takes his financial future seriously, I have chosen the Mediation option as part of the BPTC with a view to becoming a mediation advocate (and possibly a mediator) in time. As a set that embraces ADR practice, Cornwall Street could enable me to derive additional income from the resolution of disputes out of court.

Lastly, as a person born and bred in Birmingham, I am proud of my city and keen to establish my practice here. And with a baby on the way, I wish to enjoy the better work–life balance that comes, ultimately, from working in the provinces.

No.5 CHAMBERS (2017) —
Give an example of a time when you worked hard to persuade someone to your way of thinking. [150 words]

Whilst working as a Tax Tribunal Clerk, I noticed a quirk. Taxpayers were held to strict standards, but HM Revenue & Customs (HMRC) often filed its Statements of Case late. An appellant risked having their case struck-out for missing a deadline, but this rule was not always applied to HMRC — which I thought was unfair.

I explained to my team leader (based upon my legal training) that natural justice demands that parties to any dispute be treated equally. However, I was told that HMRC is not a “party” as such, so I should continue processing its paperwork accordingly.

Feeling unsatisfied, I escalated the matter to management level. I sent regular e-mails, detailing instances of HMRC lateness. Finally, an official memo was circulated, instructing all Tribunal Clerks to start asking HMRC for late reasons if filing beyond 60 days.

Should conscientious objection be a defence to breach of equality law? [500 words]

Before considering conscientious objection, and whether this should be a defence, one must appreciate where equality stands in relation to democracy.

Gandhi argued that the true test of democracy lies in the ability of anyone to act as he likes, provided that no one is harmed. John Stuart Mill argued that if all mankind, except one man, held a single opinion, and only that one man held a contrary opinion, mankind would be no more justified in silencing that one man than he, if he had the power, would be justified in silencing mankind.

The common thread is equality. Citizens should enjoy the simple right to control their fate, and be the person they were born to be. This is the essence of equality, and for a society lacking this, there can be only mob rule.

However, if citizens truly enjoy the right to control their fate, it is arguable that none should be compelled to do acts which offend their conscience. For the pro-life doctor, for instance, this could mean freedom from performing abortions. And for religious ministers, freedom from solemnising gay marriages. Note that under English law, doctors and (effectively) ministers have the lawful right to conscientiously object. But the wider question is, should they?

Equality law exists to purge society of unfair discrimination.

Thus, on the one hand, equality law might be celebrated as the bedrock of democratic life — empowering Gandhi’s “anyone” to act as he likes, provided nobody is harmed. On the other hand, equality law may be reviled as an instrument of oppression — used to silence Mill’s “one man” and coerce him into doing things he will regret. But should conscientious objection be a defence to breaches of equality law committed by those who revile it?

In the UK, a politician of the Right once remarked that there is no such thing as society. Tempting as this proposition may sound, it was surely trumped by a politician of the Left, who said it is wrong for people to picture themselves in the role of “Robinson Crusoe” — having no duties beyond the garden gate. In other words, with living in a democratic society comes being party to a social contract, in that benefits require a few personal sacrifices. Thus, to make conscientious objection a defence would be to relieve offenders of this duty to society.

For all doctors, therefore, not objecting to performing abortions is arguably a price they should pay to practise. But this logic struggles to entrap the minister, whose only concern is the grace of souls. Indeed, using equality law to bring rites into line with rights could violate the freedoms of thought, conscience and religion. But then, marriage, as an institution, has become so integral to life in democratic societies that no committed couple ought be denied it, gay or otherwise.

In conclusion, conscientious objection should not be a defence to breach of equality law. Nor should there be any lawful right to object in matters of human equality.

Pupillage Interview:  Success!

Pupillage Interview:  Success!

The headline gives it away!

I’m proud to announce that from November, I’ll be a pupil barrister at the CPS, with a guaranteed job as Crown Prosecutor following pupillage. Thus, today’s news is doubly exciting. I’ve been offered (in essence) both a pupillage and a tenancy at the same time — ensuring my shot at a long career in criminal law.

Happy isn’t the word for it!

However, delighted as I’m feeling right now, I know the real challenge lies ahead.

Some proper celebration is called for. But soon, I must return to the books to refresh my knowledge of criminal procedure. I must re-acquaint myself with the elements of certain offences which I’m likely to be prosecuting (and advising police on) from next year. I must attend court on a regular basis — especially the Magistrates’ Court, where I’ll appear most often during my early years of practice. And I must ensure that my research skills are up to scratch, especially when using online sources.

All of this must be done prior to November, to ensure I’ll be ready to hit the ground running. But the rewards are most definitely in sight.

To any aspiring advocate who may discover this post, my advice is to believe in yourself and never give in. That’s a big cliché, I know. So let me illustrate with a personal example.

In 2013, whilst studying for my Masters, I entered the Birmingham Postgraduate Mooting Competition, where I made it as far as the semi-finals. The moot was judged by a well-known QC, who afterwards gave me this (public) feedback:

“Your advocacy puts me in mind of neighbours talking over a garden fence.”

That remark hurt. In fact, I felt embarrassed and humiliated by it.

But four months later, I went on to win a national mooting competition. The final was judged by a Justice of the Supreme Court, who afterwards gave me this (public) feedback:

“You’re a serious advocate.”

The following year, I entered the Birmingham Postgraduate Mooting Competition again. This time, instead of walking away humiliated, I won.

The moral of my story:

Only YOU can know whether you’re truly cut out to be an advocate.

You may endure setbacks. I certainly did. But you must overcome.

You may suffer embarrassment. I certainly have. But you must bounce back.

You may feel like walking away. I almost did. But remember why you started.

In the celebrated words of Winston Churchill, you must:

“Never give in. Never give in. Never. Never. Never. Never — except to convictions of honour and good sense.”

Or, in the poetic style of Charles Bukowski:

“If you’re going to try, go all the way. Otherwise, don’t even start. It could mean derision, mockery, isolation. You will be alone with the gods and the nights will flame with fire. Do it. Do it. Do it. Do it. All the way. All the way.”

Well folks, I did it!

Now where did I put that champagne… ?


Pupillage Interview: update

Pupillage Interview:  update


In my last post, Pupillage Interview:  self-reflection, I discussed my final-stage interview (including a written exercise) for pupillage and a career within the Crown Prosecution Service. There are 30 positions available this year.

It’s been a tense wait, but a few hours ago, I received this e-mail:


After opening it, my first reaction was relief at not spotting the words “unfortunately” and “regret.” My second reaction was frustration, since the wait is not yet over… and the weekend has just begun!

Once again, I’m in a reflective mood; attempting to fathom what this latest e-mail could mean. I’ve sought opinions from some of my more critically-minded friends.

I should mention that one other applicant in this process is personally known to me, and their e-mail today was a rejection. So, I consider myself fortunate to still be in the running, even if the wait is killing me!


As one friend put it, this e-mail is “a message to be celebrated” as it proves I passed the interview. Indeed, it’s a message telling me that I’m good enough to be taken on as a pupil barrister and Crown Prosecutor. So, if I’m not hired this time, it won’t be a rejection as such. I’ll have every reason to try again next year.

Assuming no offer is made to me, I’ll be placed on the “reserve” list — meaning there’s a slim chance of being taken on if (e.g.) the person in front, who did get an offer, cannot start pupillage in November due to not completing the Bar Course on time, or some other personal reason.


I called the number printed in the candidate guide and spoke to a helpful member of the Resourcing Team. I asked if any offers have been made today and was informed ‘yes’ — although the precise number cannot be revealed. This could mean one of two things:

(1)  Some applicants (not including myself) were brilliant, so the CPS has snapped them up. Meanwhile, other applicants (myself included) were good, but not so good that we can’t wait another week or two while the CPS splits hairs over us, deciding who the last few positions should go to. The e-mail states that positions will be offered “in order of merit.”


(2)  A few offers have been made so far, simply because some CPS branches are ready to move forward, while other branches are not. My preferred location is Birmingham; so, perhaps the Birmingham branch is not yet ready to make its offers. To be fair, the e-mail states:  “We are currently in the process of finalising the number and location of placements available, with a view to making further offers shortly.” The e-mail also states that offers will be made “in order of merit” — while taking our preferred locations into account. In theory, therefore, a candidate could be brilliant, but not receive an offer until their preferred location is ready.


It’s clear to me now that besides merit, preferred location has a significant bearing.

My first choice of location is Birmingham; my second choice is Brighton and my third choice is Chelmsford. Hopefully, my score is high enough to attract an offer from one of these locations in the coming week.

In any event, this latest e-mail from the CPS confirms my suitability for the role. The recruitment process involved four stages, and clearly, I made the grade in all of them.

With a bit of luck, my next post on this blog will be titled:  “Pupillage Interview:  Success!”

Pupillage Interview: self-reflection

Pupillage Interview:  self-reflection

I’m writing this post as an exercise in self-reflection.

… and because, if I don’t, I may just go mad!

On my journey towards the Bar, I’ve attended a total of 13 pupillage interviews to date. That breaks down as 10 first-round interviews, and 3 second-round interviews. Obviously, I’m most proud of the second-rounders, since these were occasions when I made it to the final stage; competing against the determined, remaining few.

In other words, 3 days on which my dream job almost became a reality.

Very few aspirants ever make it to the second round; so, I know I have much to be thankful for. If I never get pupillage, it cannot be said that I wasted my time and money chasing a fantasy. But this blessing is also a curse.

The consensus among practitioners is that, if you’re getting second-round interviews, you’re definitely good enough… and you will succeed eventually. The trouble is, whilst I love making it to the second round, I also loathe it. Yes, loathe!

For me, second-rounders demand a great emotional investment, as well as an intellectual one. For instance, two of my second-rounders required me to research and write an advice — to be submitted in advance, then challenged at interview. This is to be expected. However, what few appreciate is the effort we must put in beyond drafting an advice.

If you truly want the position, your passion must extend to the chambers (or firm) itself. You need to get in tune with its ethos, and start thinking in terms of its values. You should be familiar with its most senior lawyers, feeling a genuine sense of pride in their accomplishments. Above all, you must be clear on what you can bring to the table, if given this rare opportunity to work alongside such people.

Sounds like the bog-standard drill, right? But in my experience, by the time interview day arrives, the heady process of falling in love has begun. For me, getting rejected after a second-rounder hurts… a lot. And the fear of knowing that hurt again (very soon) now drives my fingers to type.

Last week, I underwent the final stage in the recruitment process for pupillage and a career within the Crown Prosecution Service (CPS). As I understand it, there are 30 places available, and 90 of us remaining from over 1600 applicants. Technically, that’s a one-in-three chance of success for everybody!

Overall, I definitely feel it went well, although I might have handled some aspects better. The big day comprised two elements:  a written exercise, and a competency-based interview.

The written exercise was a pre-charge advice, to be completed within 45 minutes. This involved reviewing a small police file and deciding whether to charge the suspect with an offence (applying principles contained in the Code for Crown Prosecutors).

The competency-based interview involved a long series of questions, designed to elicit evidence in the form of CV-based examples — i.e. to prove that I’m capable of doing the job. I was interviewed by three senior prosecutors, who made notes as I answered.

With respect to the pre-charge advice…

What do I feel went well?

The advice must be written in three stages:  (1)evidential stage, (2)public interest stage, and (3)requests for further evidence. Unless the evidence currently available supports a realistic prospect of conviction (stage 1) then it’s not necessary to consider whether prosecuting would be in the public interest (stage 2). In any event, it’s necessary to consider what further evidence might be obtained to pass the evidential stage and/or improve the prospect of getting a conviction at trial (stage 3).

Having concluded that there was a realistic prospect of conviction, I made some nice points for and against prosecuting which followed logically from the facts, and which required an effort beyond skim-reading. I identified the biggest mitigating factor, and gave reasons why this did not outweigh the factors favouring prosecution. I also considered the bigger picture by acknowledging that the main mitigator could be relied upon by the defendant at sentencing.

Having concluded that a prosecution was required in the public interest, I produced a detailed Action Plan for obtaining further evidence. This was more than just a shopping list. I stated what further evidence was required, but also explained why it was required — thus demonstrating awareness of the bigger picture.

What do I feel went not-so-well?

I took the three stages of my advice in reverse order:  (3)requests for further evidence, (2)public interest stage, and (1)evidential stage. I adopted this approach because it made me start by looking for gaps in the evidence, then possible mitigating factors (which may not be obvious on the facts). However, by the time I’d produced a detailed Action Plan for obtaining further evidence, and typed a short argument with points for and against prosecuting, there was scant time remaining to discuss the available evidence in great detail.

I had just enough time to comment on the available evidence in broad terms, and to summarise why I’d taken the view that there was a realistic prospect of conviction. Worse… no sooner was the exercise over, I started to doubt whether the suspect should have been charged at all.

On the one hand, all I really had was the victim’s statement, and that of the arresting officer who formed a reasonable suspicion soon after, but didn’t observe any element of the offence directly. A bench of very fair-minded magistrates might acquit based on this evidence (assuming no further evidence were to be obtained).

On the other hand, the circumstances were such that if the suspect wasn’t to blame, then he surely knew who was. Yet, the suspect had refused to co-operate, and had given a “no comment” interview at the police station. Considering the bigger picture, therefore, if the suspect declined to testify at trial, he may be judged evasive and convicted per the prosecution’s case theory. If he did decide to testify, anything he later relies upon in court might harm his defence — since he could have mentioned it sooner.

Alas, I wasn’t able to discuss the evidence at length. So, I must hope that these thoughts are found to be implicit in the points which I did have time to make. If they are, my decision to charge should not appear unreasonable.

That concludes discussion of my pre-charge advice.

With respect to the competency-based interview…

What do I feel went well?

I was able to give solid examples from each of these past positions:

– Legal Assistant at a criminal defence firm;
– Tribunal Clerk at HMCTS;
– Intern at the Mississippi Office of Capital Defence Appeals;
– Intern at the Commonwealth Human Rights Initiative (Ghana);
– Winner of a national mooting prize, as judged by a Law Lord;
– Master of Laws student, and writer of a unique dissertation;
– Transport Clerk and Internal Auditor at a haulage firm.

Thus, I hope this experience demonstrated a genuine passion for law (especially criminal law) and a commitment to public service.

I was asked to identify a current CPS priority, and explain how I see myself contributing towards it. The priority I identified was increasing the number of offences charged and prosecuted as disability hate crimes. Without over-elaborating, I referred to my own disability and experience of disability hate crime endured as a youngster. I expressed enthusiasm at the ‘democratic’ role of the CPS in visiting schools to raise awareness of disability hate crime, and promote empathy among today’s young people. However, I remarked that despite this good work, the hate element still goes uncharged in the overwhelming majority of crimes in which a disabled person was targeted. I backed this up with figures and statistics, and said that more needs to be done. I suggested that as a Crown Prosecutor, I could be instrumental in spotting and charging disability hate crime.

In my opinion, this was one of my strongest answers. The panel seemed impressed. One interviewer even nodded his agreement as I relayed statistics on the low number of offences that were charged as a disability hate crime last year, despite evidence that a disabled person had been targeted.

Aside from the competencies, this answer ought to have demonstrated certain ‘soft’ skills I possess — such as good communication, empathy and critical observation.

I could cite further answers that were well received, but for the sake of balance, I’ll move on to less certain ground.

What do I feel went not-so-well?

I was asked to give an example of a time when I faced opposition, and to explain the steps I took to overcome it. I talked about how my legal training had once helped me to identify a procedural unfairness which my colleagues were unaware of and/or unwilling to challenge. I pitched my answer as an example of me being an individual — i.e. standing my ground in the face of adversity, as a fearless prosecutor might sometimes be expected to do. However, on reflection, I think they wanted evidence of me treating opposition as a chance to share my learning with others and work with the team, not against it. Alas, I could’ve pitched my answer this way too, since it was a complex situation requiring both tenacity and persuasion to bring about change. But I harped on the former.

If I’m right, I’ve probably lost marks under the ‘collaboration’ heading and given the impression of being stubborn. On the other hand, in a different example, I rounded-off by saying:  “Above all, I learned that it’s possible to change peoples’ thinking by working with them, not against them.” So, I must hope that with three interviewers scribbling away, at least one noted this response as evidence of collaboration.

Of all the questions put to me, the “opposition” one stands out as a potentially wasted opportunity to impress. On the bright side, I can’t say that about any other question that was asked, although I might have strengthened some of my other answers by referring to ‘soft’ skills (such as adaptability).

At the end, I was invited to state any further evidence in support of my application. I declined, giving the standard “everything-seems-to-have-been-covered” response. On reflection, though, I might have further evidenced my commitment to public service by mentioning that since applying to the CPS, I’ve qualified as a representative for FRU (the Free Representation Unit) and won my first case. I might also have mentioned my time spent as a volunteer case worker for Victim Support.

The latter, at least, is outlined in my CV (submitted with the application form). So, I must hope that it was picked up and credited during the sift.

My thoughts overall

It’s clear to me now that for every negative identified, there are plenty of positives to outweigh it.

The CPS recruitment process has involved four stages, with different competencies tested at each stage. Looking back over the process, I realise that certain competencies were assessed numerous times, in various ways. It’s conceivable that marks gained at earlier stages may count towards one’s ultimate score. Thus, I’ll stop obsessing over my final-stage performance and try to take pride in my accomplishments overall.

Writing this self-reflection has helped to settle my nerves enormously. I’m feeling much more positive (and less anxious) than before.

And now, it’s time to make a brew and enjoy The Vampire Lestat — a novel I’ve been wanting to read for yonks!


My Open Letter to Pat Condell (re. Brexit)

My Open Letter to Pat Condell (re. Brexit)

I saw this angry video about Brexit being applauded on social media by friends I respect, and felt motivated to respond. The speaker (comedian Pat Condell) lashes out at those he calls “angry intellectuals.”

I doubt that I’ll receive a reply to my letter. Mr Condell may not even read it. But doing this has helped me to realise the importance of using any knowledge we have to educate and assist, rather than to insult or patronise.

To view Pat Condell’s video, Click Here.

And here is my open letter in response…


Dear Mr Condell,

I watched your video (titled “Hello Angry Losers”) and found it to be most stimulating. As a lawyer with three degrees who voted to remain, you might categorise me an “angry intellectual” along with the “public progressives, failed politicians, etc” to whom your video refers [0:18].

Whilst I admit feeling bitterly disappointed at the referendum result, I plan to exert whatever influence I can during the two years of debate that now lie ahead (Article 50 having been triggered). Therefore, in a spirit of democracy and fair play, I have prepared 14 responses to the 14 main points you make. My aim is simply to challenge the views you so passionately hold.

If you would care to engage in a meaningful debate about Brexit with me (in public or in private) then I am open and amenable to that. Indeed, other people may find our discussion interesting. In any event, after sitting through your video today, these thoughts occurred to me…

(1) “Now that Britain is officially leaving the anti-democratic European Union…” [0:00]


The EU has a Parliament in Brussels. That Parliament is made up of MPs (called MEPs, which stands for Members of the European Parliament). Elections for the EU Parliament are held every five years. The UK sends 73 MEPs to Brussels. They debate proposals for new law, and vote on whether to pass it. They vote on EU spending. And the EU Parliament holds the EU Commission to account, with power to sack all Commissioners when this “nuclear option” is deemed necessary. Indeed, this power was last exercised in 1999 to great controversy – proving that EU accountability is real, not pretend.

So, I cannot agree that the EU is anti-democratic. We send politicians to Brussels to represent our interests there. Unfortunately, it’s evident that many voters use the EU elections as a chance to merely “send a message” to Westminster. That may explain why parties such as BNP and UKIP send politicians to Brussels, yet seldom (if ever) win a seat in Westminster.

Also, in the UK, nothing is recognised as law by our courts unless our Parliament expressly says so. In 1972, Parliament passed the European Communities Act which established EU law as superior to UK law… but only where there’s a clash between the two. The EU simply does not legislate over everything. So, I cannot agree that the EU (as law-maker) is anti-democratic. Our courts currently recognise EU law as superior because that’s what our Parliament has told our courts to do.

(2) “Many of us who voted for that happy day are hoping that the [bitterly disappointed 48%] will finally show a little dignity and accept the referendum result.” [0:05]


An in/out referendum was held in 1975. The majority at that time voted to remain. Clearly Mr Condell, you strongly disagreed with that result, and you never stopped disagreeing until a new referendum was held in 2016. My point… democracy is a continuous process. Things can (and do) change. You refused to accept the result then, so it’s not fair to expect everyone else to accept the result now. Especially when the outcome was so close, at 52% to 48%

As for showing a little dignity, I respectfully point to the fact that your video is titled “Hello Angry Losers.” If the gulf between us is to be reduced, those asking for respect must also be willing to show it.

(3) “[Leave Voters] have endured the same condescending backlash that we’ve seen against Trump voters in the United States.” [1:18]


I don’t wish to turn this into a debate about President Trump. However, it’s only fair to acknowledge that within his first hundred days of office, he’s tacitly condoned the use of torture against “suspected” terrorists, and tried his utmost to debar anyone from a predominantly Muslim country… even where they’ve entered America on a visa (as American law requires). He’s breaching international law by refusing to accept starving refugees who are fleeing war zones – including vulnerable children, on the basis that they or their parents “might be terrorists.” Even his manifesto contains a pledge to build a giant wall for 2,000 miles along the Mexico-American border… “to keep them out.”

And that’s just for starters.

So, it’s clear why so many Americans are despairing at having this brash man as their new Face-to-the-World. As you say Mr Condell, there may be some backlash against ‘Leave’ voters in the UK. But I fail to see how mentioning them in the same breath as Donald Trump helps your case. Unless you’re saying that ‘Leave’ voters and Trump voters are of a common mind on certain issues?

(4) “The new progressive politics [says] that we who voted for Brexit are too ignorant to know what we voted for, and too irresponsible to be allowed to vote on such an important matter as who governs us.” [1:48]


For the record, I do not hold that view. Nor am I aware of the political movement you mention. What I do know is this… The UK has been an EU Member State for almost four decades. In that time, EU law has re-shaped much of our legal landscape. I have three law degrees, yet I struggle to stay abreast of every development. That’s why I think Brexit was unsuitable for a simple Yes/No vote. It wasn’t fair or responsible to expect everyone to learn (and fully consider) the ramifications of rapid withdrawal after four decades.

For instance, I don’t mean to type a boring law lecture, but can you honestly say you understand what (e.g.) EU Competition Law is? And the many ways this helps to protect healthy competition between cross-border companies operating in UK markets? Well, the UK has the EU to thank for competition law.

Google “EU blocks Three’s takeover of O2” and you’ll see that only last year, the EU stopped major phone companies in the UK from moving towards a merger/monopoly. Without the EU, our own government would hardly be involving itself in markets that way. But it’s necessary, and it stops major players (like Three and O2) from colluding to drive up prices.

Once we withdraw from the EU, we’ll be back to the days of Big Business lobbying politicians who are “sympathetic” to their needs. Can you honestly rule this out, Mr Condell? And did you consider this before casting your vote? Most people probably didn’t. But that’s not necessarily a failing on their part. Brexit should not have been framed as a simple in/out question, in my opinion.

(5) “Economics and Trade are secondary issues that should’ve had no bearing on anyone’s decision [as to who makes our laws].” [2:29]


I disagree. At the heart of the EU ideal has always been the notion of a Single, Common Market. But stop and consider what that demands. Having a common market suggests that a Spanish shoemaker can sell his shoes in British shops (and vice versa). It means a British shoemaker can set-up shop in Spain (and vice versa). From this, it’s clear that “economics and trade” are the main objectives, but none of it can work without also having laws to harmonise working conditions and business practices between both countries. Where’s the justice in paying a British shoemaker less for his products or labour in Spain than in Britain?

Google the “Factortame Case” and you’ll see that Britain once tried to prevent Spanish boats fishing in our waters. At first, that was deemed to be a breach of EU discrimination law, but not a breach of English discrimination law. So, which law should prevail? Our courts held EU law to be supreme (as the European Communities Act, passed by our Parliament in 1972, requires).

My point… Economics and Trade are at the heart of the Common Market ideal, and EU law is vital to the smooth running of that market. You can’t separate “Economics and Trade” in the EU from “decisions as to who makes our law.” They’re two sides of the same coin. The EU Market cannot function unless EU law overrides self-serving national laws that clash with it – as the Factortame Case clearly demonstrates.

(6) “Some people say we should’ve had a two-thirds majority for such an important constitutional change, and they might have a point if that had been the requirement for the referendum that took us into the European Union. But it wasn’t.” [2:50]


As stated, the UK has been an EU Member State for almost four decades now. In that time, EU law has re-shaped much of our legal landscape. So Brexit should not have been framed as a simple in/out question, in my opinion. It should’ve been a “package” on offer at the next General Election – possibly involving a series of referendums on various rights and freedoms.

(7) “Back then [in 1975] we were swindled into accepting a full-scale political union that we didn’t want, and never would’ve voted for. We thought we were just voting for better trading conditions.” [3:02]


Firstly, apologies for having to edit your point a little. As for your suggestion that we entered the EU under false pretences and were swindled, I have to disagree. I can’t state the post-war, European ideal any better than Winston Churchill (speaking in Zurich, 19th September 1946):

“[…] We must re-create the European Family, or as much of it as we can, and provide it with a structure under which it can dwell in peace, in safety and in freedom. We must build a kind of United States of Europe. And why should there not be a European group which could give a sense of enlarged patriotism and common citizenship to the distracted peoples of this turbulent and mighty continent?”

And Churchill went on:

“The structure of the United States of Europe, if well and truly built, will be such as to make the material strength of a single state less important. Small nations will count as much as large ones and gain their honour by their contribution to the common cause.”

So, the “common cause” Churchill spoke of was peace, safety and freedom. And that’s been achieved in Europe through the medium of Common Trade.

It was always envisaged that a Single, Common Market would lead to a closer political union, and a sense of citizenship between all the peoples of Europe. There’s evidence for this in the Founding Treaties, too (which I won’t bore you with now). But just because the EU has changed in form and developed over the years, that’s not to say we were swindled.

(8) “This time, unlike in 1975, we knew what we were voting for.” [3:33]


Do you truly think that, Mr Condell? As stated earlier, I have three law degrees, yet I struggle to stay abreast of every EU development.

Moreover, can you honestly say that no one voted to leave the EU on the basis that £350 Million PER WEEK would start going to our NHS?

Please google images of the infamous “Brexit NHS Bus.” Then YouTube the political broadcast, titled “Which NHS Would You Choose?” – After seeing these examples, and bearing in mind the sheer publicity that accompanied them, isn’t it likely that many people latched onto our precious NHS as their motivation for voting to leave? And if so, can those people truly be said to have known what they were voting for?

The day after the referendum, all major voices for ‘Vote Leave’ distanced themselves from the suggestion of sending more money to our NHS. If anything, Theresa May is already discussing with President Trump the possibility of private investment in our NHS from Big Business in America. Therefore, adopting the NHS as part of the ‘Vote Leave’ Campaign was quite misleading. Wouldn’t you agree, Mr Condell?

(9) “17 Million people don’t vote against the status quo [without] good reason.” [3:42]


Fair point. An equally fair one is that almost as many people voted to keep the status quo as it is. Surely, therefore, the democratic thing to do would be to try and reflect some of the wishes of the remain voters in the Exit Package that’s yet to be negotiated. Does that sound reasonable, Mr Condell?

(10) “Already the Americans won’t take [the EU] seriously, and have said that from now on, they will only make trade deals with European nations individually.” [4:19]


The Americans simply cannot do that at present (nor any time soon). They’re legally bound to deal with the European Union as a whole, since that is the United States’ largest trading partner.

In the words of President Obama (24th April 2016):

“[…] The UK would not be able to negotiate [deals] with the United States faster than the EU can. We wouldn’t just abandon our efforts to negotiate with our largest trading partner, the European Market.”

Granted, these words were construed as some kind of threat by certain politicians (Nigel Farage among them). But the fact remains… the US and the EU are major business partners. The UK is dreaming if it thinks it can usurp that arrangement any time soon. After we withdraw, the EU will still be a market of 27 trading nations. That’s a huge deal compared to our little island.

(11) “The disastrous [EU] vanity project has impoverished an entire generation.” [4:45]


Strongly disagree. The examples are too numerous to list. But in a nutshell, focusing on workers’ rights…

Before EU law came to bear on UK employment, the minimum amount of holiday pay that Brits were entitled to was 7 days at full pay. The EU increased that entitlement to a minimum of 28 days at full pay.

Before EU law came to bear on UK employment, men and women typically received different rates of pay for doing work of equal skill. The EU Equal Pay Directive remedied that.

In 1988, Britain was officially the worst European country when it came to Maternity Pay. Indeed, the issue was basically left to the conscience of each individual employer (with some employers more conscientious than others). Westminster wouldn’t touch it. Eventually, EU law stepped in and pregnant workers became entitled to paid leave.

I could cite many more examples of how EU law has given workers a higher standard of life. It certainly has not made our workers any worse off.

(12) “The [EU’s] irresponsible migrant policy seems calculated to flood a borderless Europe with criminals, terrorists and rapists — none of whom we can deport.” [5:01]


The UK has always refused to sign the Schengen Agreement, preferring to retain full control over its borders. Respectfully, therefore, it’s a bit misleading to imply that being an EU Member somehow weakens our borders. EU nationals have the right to enter Britain without a visa, either to visit or to look for work. However, they must possess a Passport or valid EU Identity Card. An EU national cannot enter without this, nor can they remain here indefinitely without securing employment. And an EU national cannot claim long-term social security in the UK without contributing towards our National Insurance.

As for deporting “criminals, terrorists and rapists” – there is no difficulty at all in sending an EU national back to his or her own EU State if they break our laws after coming here. Respectfully, you seem to be confusing this with cases in which the deportation of a NON-EU national is sought.

Take the infamous case of Abu Qatada. He was not an EU national, but a criminal on the run from his home country of Jordan in Asia. He claimed asylum in the UK on the basis that, if returned to Jordan, he would face torture. There was compelling evidence to support this claim (in other words, it’s well-documented that Jordan employs torture against suspected criminals). This led to his human rights being engaged. Eventually he was deported to Jordan, but not before proper, credible assurances were received that he would not be tortured there. This had nothing to do with the EU, nor EU rights, nor being an EU citizen, etc. It was all about the UK’s obligations (under international law) to protect people everywhere from torture and inhuman treatment.

Being signed-up to the Human Rights Convention is a condition of EU Membership – simply because nobody wishes to trade with nations that abuse human rights. Regrettably though, certain (clever) politicians have twisted this fact to say that it’s the EU forcing us to respect criminals’ rights. That is simply not true.

(13) “Everything [the EU] has touched has been a disaster. It’s as if Europe is being run by our enemies.” [5:36]


I disagree. The UK is safer being part of the EU than cut-off from it. For instance, google ‘EuroPol’ and ‘EuroJust.’ These are the EU’s crime-fighting agencies (comprised of officers from every EU state) which share information and intelligence cross-border. If we fully withdraw from the EU, then overnight, we’ll lose access to 27 countries’ worth of precious police data and intel. Our own police will be on their own.

The enemies you refer to (whoever they are) would stand a much better chance of passing among us undetected if “Hard Brexit” prevails. In light of that, would you say “Hard Brexit” is the best option for the UK, Mr Condell? Or should the UK be seeking to preserve some aspects of its EU relationship – such as EuroPol?

(14) “Sovereignty matters to [Leave Voters] in a way that, clearly, it doesn’t matter to [Remain Voters].” [6:50]


I disagree for two reasons.

Firstly, as stated, in the UK, nothing is recognised as law by our courts unless our Parliament expressly says so. For now, EU law continues to be recognised as the supreme law of our land… because our Parliament expressly said so.

Our nation’s sovereignty is indeed preserved. But the tension between me and you can be summarised thus:

As a ‘remain’ voter, I’m comfortable with the idea that our Parliament once ceded some of its power to a higher institution to bring (what I consider to be) great benefits to our nation. As a ‘leave’ voter, you are not comfortable with the idea of Parliament having to compromise when it passes a law which conflicts with something higher. Indeed, you want a return to the days when Parliament itself was the highest authority in the land.

This leads me to my second reason for disagreeing.

History shows that when nations are an absolute authority unto themselves (with no higher authority to keep them in check), it’s never long before they start mistreating their own citizens. Hitler and the Nazis had a strong appreciation for sovereignty; as did Stalin and the Soviet Unionists.

Now, I’m not suggesting that Nazism will re-surface in Britain, or that Britain will become the next Soviet Union once we withdraw from the EU. But take a moment to consider the sheer number of legal challenges that have succeeded against our government (and made headlines) over the past two decades…

… and tell me, Mr Condell, that absolute sovereignty isn’t a dangerous thing at the wrong time, in the wrong hands. Yet, this is a danger we’re now exposing ourselves and future generations of our children to. Who will they turn to when the last word on every issue always lies with a politician of the day?

Thanks for reading.

Kindest regards,

Mr Richard Murtagh (LLB, LLM, Barrister)

No Dodging The Draft! (part 2)


Following on from the last post, you will find tips and insight below on how to draft three key documents in civil litigation. For my sins, I must re-sit the Drafting assessment next month.



To recap, in England, we have a system of fact-based pleading.

So, when drafting a claim for breach of contract, you should stick to pleading essential facts and avoid straying into legal argument. It is thus unnecessary for you to state any of the following:

  • That there was intent to create legal relations;
  • That the loss was reasonably within the parties’ contemplation;
  • That no exclusion or limitation clause applies;
  • That the claim is not statute-barred;
  • That the claimant has reasonably mitigated all losses;
  • That the claimant is the innocent party in this matter.

In the last post, you saw that the statutory interest rate on damages accruing for breach of contract is 8% per year. This rate is the same whether you are claiming in the High Court or County Court, although, depending on which court you are in, the statute differs. For High Court cases, claim interest under section 35A of the Senior Courts Act 1981. For County Court cases, claim interest under section 69 of the County Courts Act 1984.

When drafting a negligence claim, you should stick to pleading essential facts and avoid straying into legal argument. It is thus unnecessary for you to state any of the following:

  • That the defendant owed the claimant a duty of care;
  • That the loss suffered by the claimant is not too remote;
  • That the claim is not statute-barred;
  • That there was no contributory negligence on the claimant’s part;
  • That the claimant has reasonably mitigated all losses.

If claiming against a company vicariously (i.e. for an employee’s tort), you should name the tortfeasor-employee as First Defendant and the employer-company as Second Defendant. Then, in the second paragraph of the Particulars of Claim (having identified the Claimant in the first), state: “At all material times, the First Defendant was the employee or agent of the Second Defendant, acting in the course of his employment.”

If a claimant is claiming damage to (e.g.) his car caused by the negligence of the defendant, it is crucial that ownership is established. This may be achieved (e.g.) by stating that the defendant collided with a Ford Focus, registration number ABC 123, belonging to the claimant. Alternatively, you might simply state that the claimant was driving his car, when… etc.

When drafting Particulars of Negligence, remember that every allegation you level at the defendant (if satisfactorily proved) must be capable of amounting to a breach of duty. If you don’t need it, don’t plead it! On the other hand, fail to plead enough and you may find you’re stuffed!

When drafting Particulars of Negligence, a good stock phrase to use is “any or proper” – e.g. the defendant failed to keep any or proper lookout. This wording stops an allegation falling through if the defendant is able to prove that he was keeping lookout some of the time. The allegation says that even if he was keeping lookout, he wasn’t doing so properly.

Another good stock phrase is “any or any sufficient” – e.g. the defendant failed to take any or any sufficient steps to prevent access. This wording stops an allegation falling through if the defendant is able to prove that he did take some steps at least. The allegation says that even if he did take some steps, those steps weren’t sufficient.

Many more examples of stock phrases can readily be found in drafting.

In some negligence cases, e.g. road traffic claims, it is likely to assist the claimant’s case if the defendant is convicted of an offence for the same incident that has caused the claimant’s losses (such as careless driving). Indeed, many civil claimants will wait to see if a criminal prosecution is brought before commencing proceedings. Hence, the existence of a criminal conviction is a relevant matter which ought to be pleaded in the Particulars of Claim. I say ‘pleaded’ because it is open to the defendant to dispute a conviction’s authenticity, or he may simply appeal against his conviction and be cleared. Therefore, in the paragraph that immediately follows the Particulars of Negligence, you should state (e.g.):

“As evidence of the Defendant’s negligence, the Claimant will seek to rely on the fact that on 2nd May 2015 at Birmingham Magistrates’ Court, the Defendant was found guilty of an offence of careless driving committed at the time and date of the said collision.” – On first glance, this looks suspiciously like pleading evidence. Rest assured, however, that details of the when, where and what of convictions do qualify as fact.

It is fine to use separate ‘particulars’ headings for each individual claimant within the same claim. For example: Particulars of Special Damage Suffered by the Second Claimant; Particulars of Injury of the First Claimant (etc).

When claiming interest on damages in a PERSONAL INJURY case, there is no need to refer to any statute, though you should claim half the “special account rate” of 0.5% per year on special damages from the date of loss until today (state the sum due), and continuing thereafter until judgment or sooner payment (state the daily rate). On general damages, simply claim 2% per year from the date of service of the Claim Form until judgment – remember, interest is not payable on future losses!

When claiming interest on damages in a straight-forward negligence case (involving no personal injury), you do refer to one of the two statutes, but interest is simply claimed “at such rate and for such period as the court thinks fit” – so no calculations are necessary.

After interest, but before The Prayer, it is vital to include a statement of value in personal injury claims. This does not require a heading, nor is it complex. Simply state (e.g.): “The value of this claim exceeds £10,000 but does not exceed £25,000.” – the idea being to assist the court with track allocation. However, where there are multiple claimants in the same case, and all are obviously seeking comparable sums, you should caveat the statement of value thus: “In the case of each Claimant…”

This concludes the Particulars of Claim section. In sum, try to remember when drafting that defendants deserve sufficient information to fully and clearly understand any claim that they may be called upon to defend. And speaking of defending, the next key document that we will consider is called the…



Again, England has a system of fact-based pleading.

So, when drafting a Defence, you should stick to pleading essential facts and avoid straying into legal argument or evidence. Do keep in mind, though, that you must allege all facts here that you plan to prove at trial.

The Defence has two main aims – (1) to respond to every allegation made in the Particulars of Claim, and (2) to positively advance the defendant’s version of events.

As a general guide, you should set out the Defence in a way that logically follows the Particulars of Claim. However, this does not mean that you should always try to ‘mirror’ the Particulars of Claim by drafting an equal number of paragraphs!

As when drafting particulars, you should start by fact managing the brief, but the approach differs for the Defence because the claimant has already set the agenda for things to come. Thus, to some extent, the defendant must ‘dance’ to the claimant’s tune. The best approach is to ensure that you are clear in your own mind what the defendant’s version of events is. Understanding the story from the defendant’s perspective should put you in a good position to work through the particulars and be able to spot lies, discrepancies and/or convenient half-truths.

For every allegation in the Particulars of Claim, the Defence must state whether the allegation is admitted, denied or neither (as the defendant has no knowledge of the matter stated). This is usually done on a paragraph-by-paragraph basis – i.e. admitting, denying or requiring proof as to whole paragraphs at a time. However, great care must be taken, as one paragraph may contain multiple allegations which need to be ‘unpacked.’

Remember that EVERY allegation must be responded to. The rules say that what you don’t deny (or require to be proved), you admit by default.

As a general starting point, the wording to use is:

“Paragraph X of the Particulars of Claim is admitted.”

“Paragraph X of the Particulars of Claim is denied.”

“The Defendant is unable to admit or deny the allegation contained in paragraph X, but requires the Claimant to prove it.”

You may be wondering why the rules of drafting don’t simply allow a Defence to state: “Everything alleged by the claimant is denied!”

The answer… wasted time and inefficiency. Not everything a claimant says is likely to be disputed by the defendant – unless the defendant is a highly vexatious character! For example, where two cars have collided, there may be common ground between the drivers involved. Both may agree that they were driving towards one another. Both may agree that they were on a narrow country lane. Both may agree that the collision happened on a sharp bend. Both may agree that it was raining heavily. Both may agree that visibility was poor. Both may agree that the road surface was slippery with mud. Both may agree that they were driving below the speed limit, etc. Thus, imagine how much longer the trial would take, and how much more expensive it would be, if the claimant had to adduce evidence in support of all such points. It is far better that the defendant states which points he takes issue with, and why.

It follows that under the rules of drafting, any time a defendant denies a paragraph (or multiple allegations) in the Particulars of Claim, he must immediately go on to state WHY. It will sometimes be necessary to state why and then state the defendant’s account of how it actually happened. If responding to multiple allegations within the same paragraph, dedicate a separate paragraph or sub-paragraph to each allegation in the Defence.

When responding to pleaded aspects of a medical report (as in a personal injury case), the basic wording of responses should be altered thus:

“Paragraph X is AGREED.”

“Paragraph X is DISPUTED.” [must say why!]

“The Defendant neither agrees nor disputes paragraph X, but has no knowledge of the matters stated therein.”

… The wording changes as the defendant cannot ‘admit’ or ‘deny’ things written in a medical report. He can ‘agree’ or ‘dispute’ them, though.

Again, if you fail to DISPUTE pleaded medical findings (or at least reply that you lack the knowledge to say either way), you will be taken to have AGREED those findings by default. The claimant will thank you for this. Your client may not!

By denying (or disputing) allegations, the defendant is thus choosing to make issues out of them. So avoid confusing the judge by using the word ‘issue’ in its looser, non-legal sense!

In a drafting assessment at Bar School, not denying certain allegations (e.g. causation) will result in automatic failure. However, you may get away with not responding to a less ‘vital’ allegation, provided you have AT LEAST set out the nature of your case in relation to the ISSUE to which that allegation pertains. In other words, taking each opportunity to tell your client’s story may save your skin later. That having been said, you will lose marks for being repetitious – so don’t get paranoid and add your client’s full account to every paragraph!

Be aware that ‘causation’ may be alleged numerous times, and for numerous aspects of the claimant’s claim. Deny causation, always! Beware dangerous terms such as:

  • because of…
  • as a result of…
  • due to…
  • owing to…
  • by reason of…
  • by virtue of…

… and, of course, the word ‘cause!’

The rules of drafting provide that MONEY CLAIMS are an exception to the general rule on denial, insofar as failing to deny an allegation that the defendant owes money to the claimant will not result in admission-by-default. Rather, the defendant is taken to require proof of the sum owing. Hence, in a drafting assessment, failing to deny the sum owing would count as a minor error.

Don’t get so hung-up on analysing words that you neglect to see the legal consequences lurking behind those words, ready to pounce. Thus, you must deny not only the words of an allegation, but its full substance too. For example, try to avoid a situation where (e.g.) a sympathetic judge may be tempted to find that, whilst the defendant wasn’t negligent in quite the manner alleged, he was negligent nonetheless. Avoid this by couching denials in broad terms, such as: “Accordingly, it is denied that the Defendant was negligent, either as alleged or at all.” This ensures that the burden of proving negligence weighs heavy on the claimant.

Just as for drafting Particulars of Claim, the Defence comes with its own set of handy stock phrases which can readily be found. The following is a list of stock phrases, which, used well, will make responses watertight:

“Except that [such-and-such also occurred], Paragraph X is admitted.”

“Except that [such-and-such did not occur], paragraph X is admitted.”

“Except that [such-and-such did occur], the rest of paragraph X is denied.”

“If, which is denied, [the Claimant has suffered such-and-such], it is denied that [such-and-such was caused by the Defendant].”


“as alleged or at all.”

“Further or alternatively…”

“In the alternative…”

“Further or alternatively, the accident was caused or contributed to by the Claimant’s negligence.” [then particularise!]

Towards the end of your Defence, you may wish to include the following statement as a kind of ‘safety net’ in case you’ve overlooked something:

“The Claimant is required to prove all of the allegations set out in the Particulars of Claim, except those expressly admitted above.” – This is unlikely to rescue a badly drafted Defence, but it might help minimise negative marking due to minor oversights.

Aside from denying the claimant’s allegations, you may wish to plead a specific defence, such as limitation, contributory negligence or set-off. Limitation is self-explanatory. Contributory negligence and set-off, aside from being defences, also hold special significance for any counterclaim that the defendant may in turn wish to bring against the claimant. Hence, I will discuss these in the next section.

You may also wish to plead that the claimant has failed to mitigate his losses (if there is evidence to aver so), or that the damage suffered is too remote to claim for. You might require the claimant to prove the nature and extent of the loss and damage that he alleges to have suffered.

This concludes the Defence section. In sum, whilst busy dancing to the claimant’s tune, don’t overlook the need to ‘knock out’ as many of his essential particulars as possible. You should really try to undermine the elements of the cause of action brought against your client. It obviously pays to find out what those elements are before you draft the Defence!



This final section will be fairly short. It does not need to be long, as we’ve already covered drafting a Defence, whilst ‘Counterclaim’ is just another word for the Particulars of Claim when drafted by a defence lawyer in response to the claimant’s claim.

However, the rule about avoiding repetition finds its greatest expression here. Basically, when drafting the Counterclaim (after drafting the Defence part of the document), instead of drafting a Particulars of Claim from scratch, the process is streamlined by cross-referring to paragraphs of the Defence. This saves having to re-state details such as the parties’ identities and the how, when and where of the (e.g.) road traffic collision. Basically, it works like this…

Imagine that the claimant is suing your client for colliding with his car. In turn, your client blames the claimant. Thus, as well as drafting a Defence to the claim, you are also instructed to draft a Counterclaim.

Imagine now that paragraph 2 of the Particulars of Claim sets out the full details of the collision between the parties’ cars. When drafting the Defence part of the document, you agreed with most of paragraph 2, except for maybe a couple of details. So, at paragraph 1 of the Defence, you pleaded the following:

“Except that [such-and-such did not occur], paragraph 2 is admitted.”

When starting your Counterclaim, there’s no sense in re-drafting all of the crash details. Instead, simply insert a paragraph like this:

“Paragraph 1 of the Defence is repeated.”

Job done! And if there’s something more you need to add, plead it thus:

“Paragraph 1 of the Defence is repeated, and further, … [add details].”

But make no mistake… your Counterclaim must contain all the essential ingredients of a well-drafted Particulars of Claim.

In the last section, you’ll recall that I mentioned the possibility of pleading the specific defence of contributory negligence. This should be done after denying negligence and causation, but before quantum, and particulars should be given under the heading: Particulars of Contributory Negligence. However, that’s not necessarily where it ends. If your client is counterclaiming against the claimant, you may wish to allege that, in fact, he was the negligent one. If so, you can cross-refer to the Particulars of Contributory Negligence in the Defence to support a negligence counterclaim, and add further particulars to these by pleading:

“Paragraph X of the Defence is repeated, and further, the Claimant was negligent in that he also… [list particulars].”

Another specific defence that I referred to was the set-off. In a nutshell, in certain types of cases (e.g. those where both parties have been dealing with one another in the course of a business), the defendant may be refusing to pay the claimant because, among other reasons, he believes that the claimant already owes money to him. Thus, the defendant may use his counterclaim as a basis for his defence. A full discussion of the set-off defence is beyond the scope of this article. However, if your client wishes to rely on his counterclaim as a full or partial defence to the sum being claimed, you should insert the following paragraph at the end of the Defence, just prior to beginning the Counterclaim:

“If necessary, the Defendant will rely upon his counterclaim in this action as a set-off to reduce or extinguish the Claimant’s claim.”

The set-off may serve as a total or partial defence, whereas contributory negligence is a partial defence only.

You may recall that near the end of a Particulars of Claim, you’ll find The Prayer. Counterclaims also need a Prayer, but instead of putting: “AND the Claimant claims…” you should put: “AND the Defendant counterclaims…” — An obvious point, yet easily overlooked in exams!

Finally, bear in mind that the defendant may choose to counterclaim against a third party who is not yet involved in the proceedings. This might happen if (e.g.) the defendant is being sued for colliding with the claimant’s car, although the defendant only collided with the claimant because ANOTHER DRIVER drove into the back of him, shunting his car forward. The fact of the other driver’s poor driving thus gives the defendant a defence to the main claim (“I wasn’t negligent!”), plus a counterclaim against the true culprit.

In conclusion, this post and the last gave general guidance on the civil drafting process. If you’d like a user-friendly book to supplement stuffy materials, I recommend Pleadings Without Tears by William Rose. The 7th edition of this work was bought for me as a gift, although I had no time to enjoy it in the run-up to my first Drafting exam. I’m thoroughly enjoying it now, and feeling more optimistic about re-sitting Drafting next month.

No Dodging The Draft! (part 1)


Well, Bar School is finished, and clearly, I’ve neglected to update my blog during the whole time I was there. However, I’m confident that Bar-hopefuls reading this will soon be able to empathise!

Since my last post, I have undergone a total of six pupillage interviews – including a second-round interview, with another second-rounder in the pipeline and two more chambers still to hear back from. I plan to do a post about my interview experience soon. Who knows… I might even have a pupillage by then!

Meanwhile, I’m somewhat sad to report that I have failed Drafting due to making a silly mistake in the final assessment, and thus, I must re-sit Drafting in August. So there will be no Call to the Bar in scorching July for me. More like nippy November (or early next year). This news came as a shock after scoring ‘Very Competent’ in the mock exam. But it goes to show that anything can happen when the real exam pressure is on.

Drafting is an essential skill for lawyers, though I’m finding there’s no way to ‘revise’ for it as such. The revision aspect starts about two weeks prior to the assessment, when you’re told which substantive area of the law your assessment is to be based upon (e.g. promissory estoppel in the law of contract). However, whilst substantive revision is limited, there are manuals and published guides to the drafting process in general.

This post is not intended as a comprehensive introduction to the skill of legal drafting. Rather, this post assumes basic knowledge of the three following documents:

(1) Particulars of Claim;

(2) Defence;

(3) Defence and Counterclaim.

I will use this post, and the next, as a chance to share tips and insight gleaned from my books and experience. At a minimum, writing this stuff ought to help me improve. But if my words should reach across Google to assist some other deflated drafter in future, so much the better!



Despite my warning that this is not a beginners’ guide, I will start on a fairly elementary note as it helps to keep things straight for me!

It must be borne in mind that a Particulars of Claim is not the same thing as a Skeleton Argument; hence, drafting particulars does not require the lawyer (or law student) to justify assertions that he or she makes by reference to statutes, case law, eyewitness or documentary evidence (etc). In fact, now is a good time to contrast the skills of drafting and opinion writing, as doing so will help make the purpose of drafting particulars a little clearer.

Early in the life of a case, a solicitor may seek your learned opinion, e.g. to decide whether there is a good prospect of success. Thus, in advising your solicitor as to the merits of the claim, you must take everything you read, including everything the lay client has told you, with a pinch of salt. For instance, the lay client may claim that she had an “oral agreement” with a company whom she wishes to sue. But it would be quite negligent to assume this to be true just because she tells you so. You are expected to consider how the fact of this alleged oral agreement could be proved. Hence, you might start by asking your solicitor to take a statement from the lay client, recording the how, when and where in minute detail. If the agreement was made over the phone, you might ask for copies of phone records to try and back this up (etc). So, nothing should be taken for granted at this early stage. As the barrister who may end up arguing these facts in court, you must consider how to prove everything that needs proving.

Drafting, however, calls for a different mentality from the barrister.

Let us assume that having taken your advice, the lay client instructs her solicitor to take the matter forward. “I want my day in court!” she demands. Now comes the moment for putting a Particulars of Claim together, step-by-step, meticulously asserting all crucial facts in support of your client’s case. It may be that the lay client has only weak evidence for proving the alleged oral agreement. Nevertheless, provided she has been warned and advised at the opinion stage, and provided she is not obviously telling lies, then now is the time for poker faces. You present the alleged facts in good faith, sure that if the case ever sees the inside of a courtroom, all will be proved… even if the client’s hopes are riding on your magnificent skills of cross-examination!

OK… I’m over-simplifying! The point is: drafting just comes down to asserting (or ‘pleading’) facts/allegations needed for your client to win – no more and no less. If it’s a contract claim, don’t discuss the doctrine of consideration, but do state what each party did or promised to do. If it’s a negligent driving claim, don’t mention Nettleship v Weston, but do state that the defendant was driving his car when he collided with the claimant.

Just write the right things to make the law bite!

In sum, an opinion is seen only by you, the solicitor and the lay client; it is thus a private document which may be used for reality-checking. But a Particulars of Claim is different; it is a document served on the court and the other side; it is the first document to declare: “We Mean Business!” — and if drafted well, it could persuade the other side to settle.

Having clarified the nature and purpose of the Particulars of Claim, let us now consider the steps required to draft particulars for breach of contract and negligence — two subjects commonly tested on the Bar Course.

For a breach of contract claim, before putting fingers to keyboard (or pen to paper in the assessment), you need to ‘fact-manage’ the brief by reading it, and identifying information that fits snugly under each of these headings:

  1. Parties and Background;
  2. Agreement;
  3. Terms;
  4. Defendant’s Knowledge;
  5. Performance;
  6. Breach;
  7. Causation, Loss and Damage;
  8. Interest;
  9. Pre-Action Conduct;
  10. Remedies Sought.

These headings merely offer a way for you to conduct fact management. The Particulars of Claim should not be drafted with these ten headings! Nor is it expected that a Particulars of Claim will contain ten paragraphs, each dealing with just one of the above. Indeed, it will not always be necessary to plead a defendant’s alleged knowledge (#4) or failure to perform his alleged obligations (#5), and the other elements may require more than one paragraph each.

So what exactly do I mean by fact management? …

Parties and Background?

– Who are the parties? [Identify them clearly!]
– Were either or both acting in the course of a business? [If yes, say so!]
– Had the parties dealt with each other previously? [If yes, say so!]
– Has damage been caused to property? [If yes, state whose property!]


– Some may prefer the word ‘contract’ to ‘agreement’ – that’s fine.
– Is the exact date of agreement known? [If yes, state that date!]
– If the exact date is uncertain, state “on or about” such-and-such date.
– Was the agreement oral? [If yes, try to state the exact words used!]
– Was the agreement written? [If yes, identify all relevant documents!]
– Was agreement mixed oral/written? [If yes, clarify as much as possible]
– Is it clear what the agreement was for? [If yes, identify subject matter!]
– Was there clearly a bargain? [If yes, state what was done or promised!]
– Do not use academic words like ‘consideration’ – you’ve been warned!


– Note that an agreement-in-principle means nothing without solid terms.
– It’s fine to skip this bit if the terms are obvious from what was agreed.
– Terms can be express, or implied by statute (e.g. Sale of Goods Act).
– Always set out express terms before any implied ones.
– Only set out terms that you are alleging the defendant has breached!
– No need to copy very long terms word-for-word. Paraphrase them.

Defendant’s Knowledge?

This is only relevant in cases where you’re planning to argue that the loss or damage is not too remote. In such cases, identify anything said by or to the defendant at the time of agreement which supports what he ought reasonably to have had in contemplation. For example, when promising to deliver a new cooker by 2pm on Friday, was the defendant aware that failure would mean the claimant having to cancel a big dinner party?


Set out what the claimant did, and what the defendant did wrong or failed to do. For example, the claimant (buyer) may have paid for a cooker, but the defendant (seller) has failed to deliver that cooker as promised. Conversely, the claimant (seller) may have delivered the cooker, but the defendant (buyer) has failed to make payment on delivery. Sometimes, agreements ‘fall through’ before either party has performed obligations; hence, performance is irrelevant in such cases.


– You must expressly state that the defendant breached the agreement!
– If you fail to expressly allege breach against the defendant, the court (or
your examiner) will not rescue the claim by inferring that he’s at fault.
You’ve been warned!
– In what way/s did breach occur? [Identify each violation precisely!]
– Is the exact date of breach known? [If yes, state that date!]
– If the exact date is uncertain, state “on or about” such-and-such date.
– Is defendant asserting repudiatory breach due to a failure of claimant?
– If yes, must be able to state that claimant did not accept the repudiation
… nor did claimant affirm the contract after breach occurred.

Causation, Loss and Damage?

– It is essential that you start the causation paragraph with: “As a result of
the Defendant’s breach, the Claimant suffered loss/damage.” If you fail
to expressly allege causation, the court (or your examiner) will not
rescue the claim by inferring its existence. You’ve been warned!
– Allege causation, then put a heading: Particulars of Loss and Damage.
– Under that heading, set out financial losses in a simple, itemised list.
– If a precise sum is being claimed, set out how it has been calculated.


– Does an express term of the agreement set out how much interest may
be payable in the event of late payment? [If yes, state that rate!]
– If the contract is silent as to interest, identify the relevant statute for
claiming interest and state the statutory rate – e.g. 8% per year.
– In any event, calculate the daily rate until judgment or sooner payment.

Pre-Action Conduct?

Often a formality. State whether both parties have complied with the Practice Direction on Pre-Action Conduct – that is, unless the facts reveal that the defendant is blatantly refusing to co-operate… then this is your chance to grass him up!

Remedies Sought?

Known informally as The Prayer! It should look like this:

AND the Claimant claims:

  • Damages.
  • Interest as set out in paragraph X.

… but make sure to say so if different remedies are being sought as alternatives to one another. Wouldn’t want the judge to think you’re being cheeky by asking for them all!

That concludes breach of contract. Moving right along.

For a negligence claim, before putting fingers to keyboard (or pen to paper in the exam), you should fact-manage the brief by reading it, and identifying information that fits snugly under each of these headings:

  1. Parties and Facts Giving Rise to Duty;
  2. Accident/Events/Cause of Complaint;
  3. Cause (or Causes) of Action;
  4. Causation, Loss and Damage;
  5. Interest;
  6. Pre-Action Conduct;
  7. Remedies Sought.

Again, these headings offer a convenient way for you to conduct fact management. They should not be treated as an exact ‘template’ for your drafting.

So what exactly do I mean by fact management? …

Parties and Facts Giving Rise to Duty?

– Who are the parties? [Identify them clearly!]
– Simply state the facts that qualify your case as a duty-of-care scenario.
– If defendant was a driver and the claimant a pedestrian … say so!
– If defendant was an occupier and the claimant his visitor … say so!
– If defendant was an employer and the claimant his employee … say so!
– But don’t use academic terms like ‘duty of care’ – you’ve been warned!
… unless no duty exists, or the duty is quite unusual (very rare today!)
– Remember:  you simply write the right things to make the law bite.

Accident/Events/Cause of Complaint?

Describe, e.g. the car collision, in precise detail – including location, time and the date it occurred. If the exact date is uncertain, use “on or about” to approximate. Also, use neutral language to describe events, as you will be pointing the finger of blame at the next step, when you formally accuse the defendant of being negligent.

Cause (or Causes) of Action?

– You must expressly state that the (e.g.) accident was caused by the
defendant’s negligence and/or the defendant’s breach of any relevant
statutory duty that may apply to the facts. At this point in your draft,
it is fine to refer to relevant statutory duties, though the names
Donoghue and Stevenson should not be seen anywhere (unless those
happen to be the parties’ names!), nor should any other cases be cited.
Imagine that statutory duties get a mention in drafting as Parliament is
supreme! But judge-made law must be kept on the down-low.
– Allege that the defendant’s negligence and/or breach of statutory duty
caused the accident, then put a heading: Particulars of Breach of
Statutory Duty (if relevant) followed after that by the heading:
Particulars of Negligence. You must deal with any statutory duties
before common law ones – again, because Parliament is supreme!
– Just prior to the ‘Statutory Duty’ heading, identify which statute and
section number applies.
– Under both headings, make your particulars… particular! That is, list
every possible act or omission on the part of the defendant which could
amount to negligence. Unlike when describing the breach of a contract,
breach of duty offers scope for creativity. Even a typical car accident
can be attributed to many possible faults on the part of a driver, and
you are free to allege them all, assuming they can be credibly alleged —
e.g. it wouldn’t be fair to allege that the driver was busy changing a
CD at the moment of impact if there is no evidence to support that.
– If accusing multiple defendants of negligence within the same claim,
dedicate a separate paragraph to making each accusation, then draft
separate particulars of negligence/breach of statutory duty against each
individual defendant. Avoid confusing the judge at all costs!

Causation, Loss and Damage?

– It is vital that you start the causation paragraph with: “As a result of the
Defendant’s negligence and/or breach of statutory duty, the Claimant
suffered injury and/or special damage.” If you fail to expressly allege
causation, the court (or your examiner) will not rescue the claim by
inferring its existence. You’ve been warned!
– Next, put a heading: Particulars of Injury (if the claimant was injured).
– Under that heading, list all injuries sustained. In addition, the following
information must be provided:

  • Claimant’s age and date of birth;
  • Treatment received to date;
  • Claimant’s present situation;
  • Future prognosis;
  • Any other relevant matter, such as a likely handicap on the labour market;
  • … and reference must be made to the medical report that should accompany the Particulars of Claim.

– Next, put a heading: Particulars of Special Damage.
– Under that heading, simply state: “The special damages claimed by the
Claimant are set out in the schedule of past and future expenses and
losses served with these Particulars of Claim.” On my Bar course, it is
not necessary to draft this separate schedule, so that’s job done!


State the relevant basis for claiming interest (daily rate only needed in personal injury cases).

Pre-Action Conduct?

Often a formality. State whether both parties have complied with (e.g.) the Pre-Action Protocol for Personal Injury Claims; that is, unless the facts make plain that the defendant is blatantly refusing to co-operate… then this is your chance to grass him up!

Remedies Sought?

Known informally as The Prayer! It should look like this:

AND the Claimant claims:

  • Damages.
  • Interest under section 35A of the Senior Courts Act 1981 to be assessed.

This concludes Part 1. In Part 2, I will provide further tips on drafting the Particulars of Claim, and will discuss drafting the Defence document, whose aim should be to ‘knock out’ as many of the essential particulars as possible. I will also discuss the Defence and Counterclaim document, which draws the last two together, but with a few neat tricks of its own.

Major Scholarship Award!



Honourable Society of the Middle Temple, London.

A couple of weeks ago, I opened an e-mail from Middle Temple to find that I am the recipient of a Jules Thorn Scholarship – providing an impressive boost for my CV, as well as a highly generous cash award to help take the sting out of Bar School. Naturally, as a blawger, I wish to offer some words of advice based upon my experience of this process.

Firstly, it should go without saying that if you wish to compete for a scholarship (and yes, it really is a competition), then your application form must be flawless. In other words, there should be no typos, no spelling mistakes and appropriate use of grammar throughout. In applying for a scholarship, you are holding yourself out as a would-be barrister; hence, the form says a lot about your attention-to-detail and written advocacy potential. My advice is to treat your application for a scholarship as though it were an application for pupillage (as I did). Aim to be accurate, articulate and persuasive in your written responses to the questions…. but don’t then go and forget what you have written!

Secondly, if possible, try to organise your referees ahead of time. For a Middle Temple scholarship, you must arrange for two references to be submitted shortly after the application deadline. One reference must be academic – that is, a written statement of your intellectual ability from a professional (such as a law tutor) who is in a position to comment both honestly and positively. For my part, I was extremely fortunate to be able to approach two respected ‘names’ in the law. I cannot say if using famous referees adds value, but in my case, it didn’t hurt. I met my esteemed contacts at university careers events…. and was sure to keep in touch, regularly updating both as to my achievements in mooting, publishing, pro bono, etc. Therefore, I cannot stress enough the value of networking. At a minimum, you should have a couple of law tutors in mind (or perhaps one tutor and a lawyer) whom you keep in touch with, and whom you could call upon to support your application whole-heartedly. Do let your intended praise singers know, though!

Thirdly, start listening to the weekly programme Law in Action on BBC Radio 4. If you have a TiVo or Sky Plus box then you can set your machine to record it. Past episodes can be replayed online. This show is topical, but more importantly, it is fantastic at putting complex legal matter in simple terms which everyone (including non-lawyers) can grasp. In the days leading up to your scholarship interview, be sure to check-out Law in Action and, as a backup, read a quality daily newspaper like The Independent. This will ensure that you arrive fully briefed as to the latest legal news and political developments. Of course, you should form reasoned views of your own on current affairs and be ready to talk about these if required – as I was, and as you probably will be too. A couple of minutes spent discussing one topical issue is the most likely scenario; although, if (like me) you are cunning, you can steer the panel towards the issue that you would most like to discuss, rather than waiting for them to spring an issue on you at random. Remember that you must look for possible merits on both sides of a debate, no matter how wrong you personally consider one side to be.

Lastly, it may sound like a tired old cliché, but it pays to show manners…. literally, in my case. I replied to my scholarship e-mail a few days later, asking that my sincere thanks be expressed to the members of Panel #1 – who clearly saw the best in me. I said that the award has left me free to focus on securing pupillage, and I aim to show that the panel’s faith has been well-placed. A couple of days later, I received a reply from one of the panel members who invited me to meet with him for coffee (since we were soon to be in the same neck of the woods). We met, and I was treated to some rare personal praise, as well as some useful advice for Bar School…. and an offer of a few days’ work experience! Not a bad return on a bit of common courtesy. Hence, I would advise not leaving your manners at the interview room door. If you should get an award, follow through and say thanks to your panel.

As an after-thought for Middle Templars, the pupillage portal will probably have closed by the time you hear from the Inn; hence, it will be too late to update your pupillage applications with details of a scholarship. However, it is worth checking online (as I did) to see if any deadlines have been extended for chambers that you may have applied to outside the portal. To my delight, I found that one of my non-portal sets had extended its deadline by a further two weeks. I thus e-mailed the head clerk with details of my scholarship, and was assured that this information would be added to my form.

The Jules Thorn Scholarship is one of the best awards that an aspiring barrister could hope for, and I feel proud to have received it. But no one gets a scholarship unless he or she is found, on a number of levels, to be worthy. Therefore, aside from the useful cash injection it brings, a scholarship (of whatever title) serves as your personal endorsement from the barristers’ profession.

Make it count!

rootin’ tootin’ mootin’ !


ImageSo much is happening right now. Aside from my masters studies, I’ve had two rounds of mooting to contend with, plus a mock scholarship interview (to help prepare me for the real thing at Middle Temple shortly). I’ve also been researching target sets for my upcoming pupillage applications. It’s not all drudgery, though…

I am delighted to report that, as well as holding the UKELA Junior Mooting Shield (a national prize), I now hold the Birmingham Postgraduate Mooting Cup, too! This award could not have come at a better time. It will surely help to strengthen my pupillage applications by proving that I have a knack for advocacy — bearing in mind that I have not even been to Bar School yet.

This year’s moot problem was a fairly easy one to grasp, so thought I’d use this post as a chance to share my winning approach with readers. The problem concerned the crime of theft. Specifically:  Can a person who receives a valid gift be held, under the Theft Act, to have “appropriated” the property involved? Or, putting it more plainly:  If you sit back and accept a valid gift from someone, have you committed the actus reus element of theft?

On first glance, you might be forgiven for thinking:  “Of course not! If a person makes a valid gift to me (meaning they acted freely, and with all their marbles) then I have done nothing wrong. I have not robbed, tricked or deceived the other into parting with their property. I’m innocent!”

And yet, in the case of Hinks (2000), the Law Lords held that accepting a valid gift can indeed count as the first step on the road to a conviction for theft. In Hinks, a woman accepted a large sum of money from a vulnerable (but not mentally incapable) man whom she was entrusted to care for. Thus, Hinks set a precedent whereby even accepting presents can count as “appropriating” property. Of course, appropriation on its own is not enough. To be found guilty of theft, a jury or bench of magistrates must be satisfied that you appropriated property dishonestly. But with everything now counting as an appropriation, it is worrying to think that, with a good prosecuting advocate in court, any dealing with property might be made to appear dishonest.

This was the dilemma facing my fictitious client in last week’s moot final. My client, Professor Smart, was an eminent archaeologist who visited Mrs Jury, a collector of royal artefacts. The professor used his charm to persuade Mrs Jury, an elderly widow, to make a gift to him of the recovered finger bone of a former king of England, King Ricky III (who invents these names?!). The professor intended to display this item in his museum for all to see. Mrs Jury was happy to oblige. She handed the item to the professor for him to take “as a present.” But the next day, she changed her mind and reported the incident to police, claiming to have parted with the artefact during a “moment of madness.” This led to the professor’s arrest and conviction for theft, which he appealed all the way to the Supreme Court with the help of a budding young barrister… Yours Truly.

It was clear to me that Hinks is a weight that would need to be lifted if my client was to be freed. I thus began by arguing that Hinks itself is bad law.

The 1968 Theft Act did not result from debates in Parliament;  it was envisaged by the Criminal Law Revision Committee in its 8th Report, which was presented to Parliament for consideration along with a draft Bill. Parliament surely liked this draft Bill, for it was soon enacted into law. Hence, to ascertain the true meaning of the word “appropriation”, it seemed logical to discover what the Committee’s report had to say. The Committee had stated that “appropriation” was to have the same meaning as “conversion” — a tort, or civil wrong, committed whenever a person deliberately usurps an owner’s right to dominion or control over their property. An owner might sue for conversion if another person offers their property for sale (or sells it) without consent, or physically removes their property without consent, or destroys it, etc. I argued that, clearly, accepting a valid gift does not belong in the same category as offences such as these. None of an owner’s rights are usurped if passed voluntarily to another as a valid, unconditional gift. I submitted that the meaning of “appropriation” stated by the Committee should be treated as the one which Parliament intended — a view shared by Lord Lowry in his Gomez dissent. If there is no tortious conversion, there is no criminal appropriation.

My next attack on the Hinks precedent came from human rights law.

I argued that the development made to the law by Hinks violates the Article 7 guarantee of freedom from arbitrary prosecution. In other words, uncertainty as to whether accepting a gift could lead to you being prosecuted is repugnant to the Rule of Law. In the famous “rape in marriage” case, the European Court of Human Rights held that judges are allowed to develop criminal offences via judicial interpretation, but provided that (1)developments are consistent with the essence of the offence, and (2)developments are reasonably foreseeable.

I argued, firstly, that the Hinks development is not consistent with the essence of the offence of theft because it is less about protecting property rights from usurpation, and more about protecting vulnerable persons from exploitation at the hands of the unscrupulous. Yet, in 2006, Parliament created a new criminal offence for just this purpose, termed:  Fraud by Abuse of Position. What reason could there be for this, except that Parliament never intended theft to be resorted to as the means of punishing those who exploit the goodness of others?

I argued, secondly, that the Hinks development was not reasonably foreseeable because it stands in diametric opposition to the civil law of gift. Indeed, if Miss Hinks had sought advice from a solicitor prior to accepting gifts from the vulnerable man in that case, a solicitor would surely have said that it would be “most surprising” to find that an activity which is perfectly legitimate under civil law could, at the same time, form the basis of criminal liability. I submitted that a solicitor’s “most surprising” would hardly accord with a court’s “reasonably foreseeable.”

By this stage, judicial interventions had taken their toll. My time was running short. I thus invited Their Lordships to overrule Hinks, then I moved swiftly to the alternative strand of my argument:  that in any event, Hinks is distinguishable from the facts of the instant case since no special relationship existed between Professor Smart and Mrs Jury — unlike the relationship of carer and cared-for which existed in Hinks. I suggested that something like a fiduciary duty might even be said to have existed in Hinks, which would have had the effect in law of rendering gifts invalid, since it is arguably unethical for carers to profit from their trusted position. Therefore, if no valid gift was made in Hinks, that may account for how the defendant had usurped the owner’s rights — “appropriating” his property as a matter of policy. And this would justify disapplying Hinks as against my client, who owed no fiduciary duty (nor anything like it) to Mrs Jury.

Their Lordships took time for consideration, then ruled that I had won on the advocacy (which is the main thing in a moot), but, perhaps unsurprisingly, not on the law. It was held that “appropriation” is a neutral, objective term;  it simply describes a thing that has happened;  it requires no behaviour as such from the person who is said to have appropriated. Thus, Hinks would not be overruled (even in a moot court), nor would the weight of that case be lifted from the facts of the instant one.

The professor’s conviction for theft would stand.

In my view, having the law against you is great in a moot because it compels an advocate to fight hard for their “client.” But one day soon, when the clients become real, we must take care never to understate the force of judicial precedent in any of the cases we handle.

Eichmann: Thoughts on a Legal Landmark


The Second Adolf

As an LLM student studying human rights, and hoping to one day build a practice around criminal law, it surprises me that few budding criminal lawyers have heard the term:  “universal jurisdiction.”

In a nutshell, universal jurisdiction is a rule of custom which says that, when it comes to certain heinous crimes, any state may choose to prosecute the offender — no matter where the offender is from, no matter who the offender is, and no matter where the crime took place. This international rule came about because of pirates robbing ships at sea. It was clear that all states would need to work together in order to bring pirates to justice. Today, however, universal jurisdiction has been extended to cover genocide, torture and other crimes against humanity.

Cases in recent times have seen General Pinochet arrested in London over torture committed in Chile, and ex-President Montt indicted in Spain over genocide in Guatemala. In 2011, George W. Bush even cancelled a trip to Switzerland over concerns that, once on Swiss soil, he could be arrested for authorising torture abroad.

A landmark case which helped to extend universal jurisdiction from piracy to crimes against humanity is the trial of Nazi war criminal, Adolf Eichmann. This coming April will mark 53 years since the trial in Israel of “the second Adolf” who was responsible for putting Hitler’s “Final Solution” into effect. Eichmann’s trial began on 11th April 1961. He was found guilty of crimes against the Jewish people and executed the following year, after his appeal had failed.

Having achieved a good mark recently for an essay about this case, I thought that I would share some of my thoughts with readers.

Eichmann’s case is interesting because the State of Israel did not exist at the time of the Holocaust. We can therefore see universal jurisdiction being exercised in Asia to bring a European criminal to justice, and years after his dreadful crimes were committed. In my opinion, though, the Eichmann case has flaws; he should have been tried by an ad hoc tribunal, or by some other state than Israel.

The traditional rules of natural justice demand that cases be decided without bias, actual or apparent. However much Adolf Eichmann deserved to be punished, there was a real possibility of bias favouring conviction in this case. Eichmann’s mission had been to exterminate the Jewish people, and yet, he was tried before Jewish judges in the self-proclaimed “State of the Jews.” Moreover, under Israeli law, the crime of genocide (which Eichmann had committed) was technically termed a “Crime Against The Jewish People.”

All of this might suggest that Eichmann’s case cannot be likened to the indiscriminate trial of some random pirate — as the Israeli judges maintained it could.

The Court also remarked that a threat to Jews anywhere is a threat to the State of Israel. But there was no precedent to support such a broad assertion. Indeed, the Court appeared to be reinforcing its ‘universal’ claim to Eichmann, and masking its apparent bias, by compounding universal jurisdiction with protective jurisdiction — that is, the right of every state to protect its national interests against foreign criminal activity. Protective prosecutions are typically brought for acts of espionage against a state, or the counterfeiting of its currency, but not to protect a worldwide group from genocide.

That having been said, Eichmann’s case makes for powerful and emotional reading. Its reasoning may have been flawed, but without a doubt, the right man was brought to justice.

To read the full transcript of Eichmann’s trial and appeal, Click Here