RECENT REVIEWS
List:
1. Dealing With DNA Evidence
2. Blackstone's Guide to the Mental Health Act 2007
3. Abuse of Process
4. A-Z of Contract Clauses
DEALING WITH DNA EVIDENCE
A legal guide by
Andrei Semikhodskii, Director, Medical Genomics Ltd
ISBN: 978 1 84568 049 7 Price: £65
Routledge-Cavendish
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DEALING WITH EVIDENCE THE DNA WAY
We do really need this book as the law of evidence is becoming one vast DNA test in many fields where the defence insists on challenging basic factual statements (on instructions from the client, of course).
The questions really are – what use is this book and does it help me with my work?
The answer to both questions is a resounding ‘yes’. DNA is now the indispensable weapon in the fight against crime because it allows both the unambiguous identification of the defendant from traces of biological material left at the scene of a crime, whilst acquitting the innocent.
In plain English, ‘Dealing with DNA Evidence’ states how DNA evidence is actually obtained – something many of us are totally unfamiliar with. Semikhodskii describes the various types of DNA test which are available and what the weaknesses of DNA testing are. For the benefit of both the judiciary and the defence, the author explains how DNA evidence can successfully be challenged in the courts so that the impact of such evidence can be minimised, or even dismissed completely.
The defence advocate is given even greater assistance with strategies for refuting DNA evidence when presented and discussed during any stage of the criminal justice process. However, readers should note that the emphasis is squarely placed on DNA evidence so that it can be treated as just another piece of evidence which, of its own volition, would be insufficient to convict the defendant of a particular offence.
Who should bother reading this book?
Most students I remember from my Bar Vocational Course would run a mile rather than read something like this book. However, the book must be essential reading for students and practitioners of criminal law and practice, for forensic science and law, and for all practitioners within criminal justice management at whatever level because it is a unique sourcebook for twenty-first century advocacy which no professional criminal justice manager should be without today.
Whilst the cases, statutes and regulations are relatively sparse for detail, I came away with the impression that ‘Dealing with DNA Evidence’ presents a fair balance of the tasks confronting advocates in this new frontier of proof. I always remember hearing a devastating question posed by the great Norman Birkett KC when he asked a hapless witness (allegedly expert) “what is the co-efficient of the expansion of brass?” This expert didn’t know – round one to Birkett, even if the question was a bit unfair, and possibly irrelevant.
What Semikhodskii goes on to say is that when an advocate is faced with scientific evidence, he “has to understand it and the prosecution scientist who presents it, as well as the scientist who is working for the defence team”. Counsel will know that their defence job is to highlight the drawbacks of the prosecution analysis presented to a jury and also have the ability to question experts about the subtleties of their supposed scientific expertise. It is right to say that such questioning is undoubtedly true for DNA evidence because it will be possibly the most scientifically demanding types of evidence available to the Crown.
There are eleven chapters in the book covering the following detailed areas of DNA law: An introduction to Criminal DNA Analysis; Forensic DNA Testing; Interpretation and Statistical Evaluation of DNA Evidence; Criminal DNA Databases; Pitfalls of DNA Testing; DNA Testing Errors; DNA Evidence Interpretation Errors; DNA Evidence During Trial; Challenging DNA Evidence in the Courtroom; Post-Convictional DNA Testing; and Ethical Aspects of DNA Testing.
The book concludes with a detailed set of references and a splendid glossary which I feel any person involved in the criminal justice process will find extremely useful. Readers will find the index detailed and content-heavy which really sums up the subject matter nicely for the subject is technical.
THE BALANCED DNA POCKETBOOK
Lawyers may wonder why this book is relatively slim at about 150 odd pages plus the referencing material. I felt that this book is actually more of a slim pocketbook on DNA for the advocate for both sides. “Always know your enemy” has been used a standard tactic for centuries so do not underestimate your opponent’s DNA case. Semikhodskii writes in his preface that the understanding of how DNA evidence is obtained and evaluated allows lawyers to find pitfalls in evidence and in data interpretation, and to use their skills when dealing with other ‘id’ evidence to highlight them to a jury, concluding that “providing lawyers with such information is the main goal of this book”.
Well, he has scored with that one! The author goes on to say that a match between the accused and a biological sample recovered from a crime scene ‘does not and should not automatically mean conviction, even if it is a complete match’. This is why the subtlety of the book strikes such success – it is the balancing act which Semikhodskii achieves for both sides of the argument so that fairness will prevail.
CASES AND REFERENCES
Clearly, this is a book about detail. However, the case law is somewhat thin at present although R v Doheny and Adams [1997] 1 Cr. App.R. 369 features well on the conflicting sides to expert evidence in the courtroom. I am sure more cases will follow as they are reported. The book mainly succeeds with its well constructed writing style which is to explain complicated scientific and statistical issues in simple terms for all.
However, there are additional detailed sources referred to such as “Forensic DNA Evidence Interpretation” (Buckleton, Triggs and Walsh 2005), “Forensic DNA Typing” (Butler 2005), “Weight-of-evidence for Forensic DNA Profiles” (Balding 2005), “Statistics and the Evaluation of Evidence for Forensic Scientists” (Aitken and Taroni, 2004) “Interpreting Evidence” (Robertson and Vignaum, 1995) and the invaluable “Genetic Testing and criminal Law” (Chalmers, 2005). These sources give tremendous additional gravitas to an already highly competent book which will clearly become a classic as the century’s new discoveries unfold.
BLACKSTONE'S GUIDE TO THE MENTAL HEALTH ACT 2007
BLACKSTONE’S GUIDE TO THE MENTAL HEALTH ACT 2007
By
Paul Bowen
ISBN: 978-0-19-921711-3
OXFORD UNIVERSITY PRESS
www.oup.com
Price: £34.95
December 2007
ANALYSISING THE NEW MENTAL HEALTH LAWS
A review by Phillip Taylor MBE Barrister-at-Law
Abbey & Richmond Chambers
Doughty Chambers barrister, Paul Bowen, specialises in human rights law and public law and has used his considerable knowledge to assemble an excellent guide to a technically complex area of social importance: mental health issue- the area few want to talk about.
The Mental Health Act of 2007, and the earlier Mental Capacity Act of 2005, are both reproduced in this guide that delivers the concise and accessible information on the latest legislative changes and amendments now in force.
CONTENTS OF THE BOOK
The recent history of the new legislation has been controversial, so the guide gives an introduction to the substantial amendments to the existing 1983 Act by analysing the amendments in two parts:
Part 1 covers reform of the 1983 Act with an introduction and background to the subject including the effect of the Human Rights Act. It then goes on to cover six headings: an overview of the 1983 Act and its amendments; amendments to the criteria for guardianship and detention under the 1983 Act; additional safeguards for patients in relation to admission and detention; supervised community treatment; medical treatment for mental disorder under the 1983 Act; and other amendments.
Part 2 covers the Mental Capacity Act 2005 and its amendments beginning with and introduction and overview. There are seven specific sections dealing with: care and treatment at common law; care and treatment without detention under the 2005 Act; detention for care and treatment under the 2005 Act; standard and urgent authorisations; representation of schedule A1 detainees; the Court of Protection, the Public Guardian, and the Court of Protection Visitors; and finally the interface between the detention and treatment regimes after the three main acts and at common law.
Apart from the full text of the three Acts, appendix 4 covers, in diagram form, the Standard Authorisation Procedure Under Schedule A1 of the 2005 Act which students and practitioners alike will find of great use. Cases and terms and abbreviations are also useful extras for the guide which gives timely and expert commentary on the meaning and effects of the three pieces of legislation.
A KEY INFORMATION GUIDE
The foreword, by James Munby, is sensitive and to the point when he highlights Bowen’s reassuring approach with the debate on whether the redefinition of ‘mental disorder’ and the replacement of the previous ‘treatability’ test, for instance, may prove to have what the judge describes as “the undesirable consequences that many feared”.
The hotchpotch of the provisions which have been amended are clearly the pathfinders for future argument and judgements with the inevitable human rights challenges.
THE FINAL CHAPTER
I found the final chapter one of the most important ones in the guide when Bowen covers the interface between the 1983 and 2005 Acts. The guide is also a practical approach because it prints the two Acts showing which words have been deleted and which words have been added by the 2007 Act, so that the reader can compare the ‘old’ and the ‘new’ texts at a glance.
The Mental Health Act guide from Blackstone is a fair statement of what has happened since the process was started ten years ago by Professor Richardson.
There is a certain inevitability in the somewhat frustrated view of Paul Bowen that “still, this is the legislation we have, so we had better get used to it”!
It is a fair statement of the anguish which the parliamentarians had when they debated these sections. I welcome this important guide as the perfect companion for all practitioners who need to be up to speed with this analysis of the latest set of rules since the introduction of the Human Rights Act whilst Blackstone’s guides remain cost effective solutions to the vastness, complexity and expense of legal rules today.
ABUSE OF PROCESS: A practical approach
By Colin Wells
With contributions from Greg Foxsmith and Paul Hynes
LEGAL ACTION GROUP
www.lag.org.uk
ISBN: 1-903307-46-5
£45 384pp
STAYING POWER OF THE DEFENCE
When I did my first ‘abuse of process’ application, I was not a happy man! The reason was that I could hardly find anything out about the subject and my instructions were sparse (to put it mildly). The problem was the lack of proper research into abuse of process proceedings, no detailed statements in our main books, and limited practitioner information which could only be found in Archbold initially. This was not helpful on the Western Circuit where Blackstone was preferred. Life has been made so much easier by this refreshing book on abuse of process by Colin Wells, aided and abetted by Rock Tansey QC and his excellent foreword, and all the 25 Bedford Row colleagues involved.
Wells has written a practical approach which supplements comprehensive coverage of criminal procedure with a practitioner’s link to tactical guidance, skeleton arguments and useful reference materials somewhat lacking elsewhere as I found to my cost some years ago. Rightly, his target audience will comprise criminal lawyers, police station advisers, Crown Prosecutors, HM Customs and Excise officials, criminal litigation students, not forgetting members of the Judiciary who will find the schematic overview very helpful.
THE COURTS
The criminal justice process, at court level has both a general and an inherent power to stay proceedings in order to protect the process of justice from abuse. The aim of the system is to secure fair treatment for defendants, so every day applications are made in the criminal courts, often providing a sound basis for subsequent appeals. What is most attractive about this book is the examination and explanation of the concept of abuse of process and how it operates within the criminal justice system. It is an area which is not really covered at Bar School yet has far-reaching effects for many clients. In keeping with the twenty-first century, it will be seen as the handbook on abuse of process which covers such abuse at the police station, observing breaches of PACE Codes and detailing the work of the police station adviser: it should also be a bible for the new police recruit – take a careful note Hendon.
CONTENTS OF THE BOOK
This is an easy-to-read guide in eleven chapters although I wasn’t quite sure why it needed to be split into two parts. The contents include: an introduction to the common law, EHCR and the Human Rights Act; abuse of process at the police station; forums for raising abuse of process; disclosure; delay; non-availability of evidence; unfair conduct including misconduct, entrapment and double jeopardy; adverse publicity; inability to participate; and the final chapter on tactical and procedural considerations which most barristers will find immensely helpful.
The Appendices cover: the Home Office Circular ‘Cautioning of Adult Offenders’; the Code for Crown Prosecutors; Attorney-General’s Guidelines on Disclosure; extracts from the Criminal Procedure and Investigations Act 1996 plus Codes of Practice under Part 11; and two excellent sections for practitioners on a schematic overview of the disclosure process (which the judiciary should have in front of them) and excellent skeleton arguments which would have helped me out greatly all those years ago.
THE MINI SUMMARIES
Each chapter has a quick mini-summary at the beginning which I find invaluable. Two of the best chapters cover ‘disclosure’ (chapter 4 by Paul Hynes) and ‘unfair conduct’ (chapter 8) which examines double jeopardy in ten short sections. I would expect this topic to expand as the full horror of the changes to the double jeopardy rationale are realised in the course of time. It might also be useful to have some web links for a possible future edition which could easily become ‘Wells on Abuse of Process’. ‘Arlidge, Eady and Smith on Contempt’ look out!
THIS BOOK IS ALSO FOR EDITORS
The best section remains chapter 9 which is neatly entitled ‘adverse publicity’ and should be bedtime reading for some national newspaper editors. Wells starts the way he means to go on by writing: “Media-generated notoriety can prejudice an accused and this may lead to a jury being discharged, an indictment being stayed or a conviction being quashed because of adverse publicity.” Don’t get me wrong, here! The press must never be muzzled but some sense of proportion needs to be reaffirmed, especially with our new media toy, the internet and the ‘out of area’ jurisdiction problems which will become much greater in the next few years.
ABUSE OF PROCESS AND NORTH AMERICA
For special mention is the piece on ‘North American media coverage cases’ and the guarantee contained in the Sixth Amendment ‘trial, by an impartial jury …’ with Lord Coke’s comment that a juror must be as ‘indifferent as he stands unsworne’.
It is useful to be reminded of such a point with the current suggestions that the Human Rights Act (well covered here by Wells) might be ‘reinterpreted’ which could mean an end to judicial independence, or even that most serious word for civil servants, ‘reform’. We shall wait and see but meanwhile, this is a great addition to the chambers library for an ever-evolving area of law buffeted by the political norms of the new century.
THE A-Z OF CONTRACT CLAUSES (Fourth Edition)
by
DEBORAH FOSBROOK
&
ADRIAN C. LAING
THOMSON SWEET & MAXWELL www.sweetandmaxwell.thomson.com
ISBN 978-1-847-03227-0
Price £222.94 (including VAT). A CD is included.
Published December 2007
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A book review by Phillip Taylor MBE, Abbey and Richmond Chambers
CLAUSES FOR THOUGHT
Since I reviewed the third edition just over a year ago for ‘The Barrister’, this work by Fosbrook & Laing has established itself as the key reference work for both the practitioner and the law student with its concise, trustworthy and comprehensive format. I was watching the latest in a long line of depressing items on television where the issue of the 'small print' was raised. And I immediately thought of 'Fosbrook & Laing' because I had remembered the earlier editions and some of the problems my learners and clients had raised with me over basic contractual issues.
The A-Z book of contract clauses is about the small print and, whilst I recognise this A-Z would be the great remedy for many insomniacs, I found the new edition remains crystal clear, and my best friend when it comes to help with the negotiation and drafting of contracts.
The first edition appeared in 1996, the second in 2003 and the third in 2006. We have a fourth edition appearing quite quickly which introduces a new sub-heading of 'University, Library and Educational' concerning new clauses relating to employment, pensions, copyright notices for emails, and so on. The two new sections at the back cover a practical approach to the main types of groups of clauses which can be found in a contract, and there is also an excellent, short guide to the mistakes, errors and omissions which can occur in agreements.
As the authors said about the previous edition, this work remains an "essential legal, intellectual property and business affairs, reference library" because it gives an easy access (in book form and CD) to thousands of ready to use clauses. This A to Z clauses manual is a combination of the expert knowledge of current intellectual property issues, and contracts with commercial awareness of choices when viewing how rights, undertakings, obligations, indemnities and liabilities can be varied when drafting contract clauses.
It will save you valuable billing time and give you experienced suggestions to improve the wording of your client's contracts. It is great for the student and new practitioner who will often come to this subject full of trepidation and go away with newly-found expertise: you choose the main clause heading, select the industry reflecting the business you are advising and you can copy, paste and edit the clauses from the CD.
THE CONTENTS
When the format A-Z is used, there is often a particular knack of finding one's way around the subject-matter. Here you have a useful right-hand side code list of the alphabet which is numbered to cover specific clauses starting with 'absence' and ending with 'zero-rated'. The authors have added a practical summary of the main types of clauses in a contract, a guide to the mistakes, omissions and errors to avoid in contracts, a very useful section on legal, commercial and business website references and a main index in just under 1,000 pages.
Other features which the practitioner or consumer will find of assistance will be to:
* acquire, sub-license, option, distribute, exploit and market a comprehensive range of rights, materials, services, products and date;
* use the clear and comprehensive clauses and terms to help improve negotiation and drafting skills and get contracts concluded more efficiently;
* update, develop and improve their existing agreements, terms of business and website terms and conditions;
* find definitions and wording of phrases: for example, over 50 'Net Receipts' clauses;
* protect their brand, trade mark, artwork, logos and copyright and ensure that third parties do not acquire their material;
* ensure that there are sufficient undertakings as to the quality of services or products to be provided by a company or individual, and that accounting and inspection provisions are in place;
* use the clauses to restrict the legal liability of their company or the rights which they license to third parties;
* increase royalties and develop revenue streams from the exploitation of content from text, images and logos;
*discover associated legal, business and contract clauses through the detailed index at the back;
* use the website reference list just before the index to gather information from government, trade, collecting societies and EU websites.
The authors express one of their main aims as to help with the conclusion of an agreement in a more efficient way (that will impress the client!) in a range of different business activities such as drafting a distribution agreement, commissioning a book, licensing a film, developing a website, exploiting merchandising rights, providing sponsorship, or procuring goods through a tender process- they succeed.
This book sets out to be a 'knowledge-improver' and it does just that. In my law surgery, I get many disgruntled consumers whose main problem is often frustration over the 'small print'. In its own way "Fosbrook & Laing" gives us the best referencing library for those who want detail and help together. There are other books I have reviewed on, say, '500 questions about clauses' (no publishers names mentioned!) or easy guides to understanding 'how we have got into this contract mess, volume 18', for instance. Fosbrook & Laing give the professional and the layman all they need, plus a CD so this work certainly gives clauses for thought.
February 2008