CONTINUOUS PROFESSIONAL DEVELOPMENT ARTICLES FOR BARRISTERS WRITTEN BY PHILLIP TAYLOR MBE LL.B (Hons) PGCE Barrister-at-Law
“GUIDELINES ON MEMORY AND THE LAW”
Some comment on a new paper by the British Psychological Society
A set of guidelines was launched recently by the British Psychological Society (BPS), being developed to provide the latest scientific evidence relating to memory and legal matters which will be of help to all involved in law. These are recommendations from the scientific study of human memory by distinguished experts in their fields as research members and advisors to the BPS Research Board.
Many legal professionals know that a witness’s memory is vital to law and justice, and is much more fallible than many realise …often until it is too late with contentious litigation.
The report has been the culmination of an international working group of the BPS Research Board under Martin Conway and Emily Holmes comprising 14 members and 12 distinguished international advisers.
Its key points include the following:
• that the content of memories arises from an individual’s comprehension of an experience, both conscious and non-conscious. Such content can be further modified and changed by subsequent recall;
• any account of a memory will feature forgotten details and gaps; and
• people can remember events that they have not in reality experienced.
Leeds University Professor Martin Conway explains:
“In many legal cases, memory may feature as the main, or the only source of evidence, and is nearly always critical to the course and outcome of the case or litigation. It is therefore vital that those involved in legal work are well informed of developments in the scientific study of memory – how memories are created, their content, and how they are remembered for example.”
Conway comments that “there is a tendency for people involved in the criminal justice system to influence witnesses’ memories of events, intentionally or unintentionally. This might be by asking leading questions or reinforcing memories while recapping what a witness has said”. He and his team conclude that the guidelines have been developed “to provide an accessible and scientifically accurate basis from which they can consider relevant legal issues relating to memory.”
There are seven sections in this report: background and overview; legal consideration including evidence and expert witnesses; psychological consideration and the nature of memory; vulnerable groups; memory, trauma and stress; witness interviews and statements; and ID parades.
Clearly of great interest to learners and practitioners are section two on legal considerations and section seven on ID parades. There are 12 pages of references which cover issues of relevance to practitioners on both sides of the Atlantic and useful examples from the USA as well as crucial aspects of PACE. As will be expected, due weight is given to the decisions in Turnbull and other leading criminal cases in evidence.
There are ten key points set out at the beginning of the report which I am summarising as follows:
1. memories are records of people’s experiences of events and are not a record of the events themselves;
2. memory is not only of experienced events but it is also of the knowledge of a person’s life, i.e. schools, occupations, holidays, friends, homes, achievements, failures, etc;
3. remembering is a constructive process;
4. memories for experienced events are always incomplete;
5. memories typically contain only a few highly specific details;
6. recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred;
7. the content of memories arises from an individual’s comprehension of an experience, both conscious and non-conscious;
8. people can remember events that they have not in reality experienced (these are often referred to as ‘confabulations’);
9. memories for traumatic experiences, childhood events, interview and identification practices, memory in younger children and older adults and other vulnerable groups all have special features; and
10. a memory expert is a person who is recognised by the memory research community to be a memory researcher.
Possible Conclusions
So what use is this study to us? It is clearly highly authoritative and will give trainees some very useful tips for their examinations. For practitioners, it will provide some guidance when trying to fathom some of the more complex pieces of ‘memory’ evidence which we often come across during the preparation of cases for trial. I just wonder how many judges would judge it irrelevant, though!
Just one example can be found in the final section on ID evidence to show what I feel is the worth of this document.
The report states: “identification parades are one of the main sources of evidence in many criminal investigations. Data from many sources suggest that errant identifications are a leading cause of false convictions”.
The summary suggests that this has led some commentators to question whether ID evidence is sufficiently reliable to be admitted in court. It concludes that ‘by international comparisons UK identification parades are well done’, and if the PACE guidelines are followed together with other detailed recommendations in the report, then “this is a ‘good’ identification parade procedure, but this does not mean that identification will be accurate”
Such comments reflect the way this report is designed as an aid to provide additional assistance for those who have to make memory judgments in criminal and civil proceedings with straightforward accounts of scientific findings and thinking about the nature of memory and memories.
I can see the uses that I can make of this report with my practice and with my academic lectures. It states that the law generally is unaware of the finding from the scientific study of human memory. Therefore, courts do not take advantage of these findings and use them to inform their decision-making.
As a result, the courts cannot then draw upon a scientifically informed understanding of human memory during the process of evaluating an account that claims to be derived from a memory of an experienced event.
This is, I suggest, where we have the problem with our jurisdictions because I would favour seeking the advice of an expert, but would it be a ‘memory expert witness’? That person would be an observer at events but the issue the judge would need to be satisfied with is whether he court would need any expert advice on issues relating to memory.
I would submit that every case would need an individual decision but I can see a role for an expert where there is a relevant need for the scientific study of memory to be adduced. It would allow jurors or the judge to see how our memories work, their limitations, properties and failings with out having to put some witnesses through the ordeal of cross examination.
A conclusion I do agree with follows the suggestion I have just made above whereby “it is so palpably clear than there (if) is no such understanding, then relying on uninformed evaluations of memory can only lead to unreliable judgments’.
So I would put it this way- if you have an informed evaluation of memory where the facts are in issue, then it will lead to a reliable judgment which is what should be the end result. I commend this report to all practitioners and trainees and would stress the value of much of it can be seen in section 3 ‘psychological considerations’ with the websites which give important guidelines on achieving best evidence. I think all will find this report of use, particularly in hard cases.
Reference:
****************************************************************************************************************************
CPD: HAVE WE BEEN HOODWINKED?
Why CPD needs reform and less regulation
Many barristers were taken a bit by surprise when the implications of the Access To Justice Act hit home to the mass of our members and that regulatory dinosaur called ‘Continuous Professional Development’ (CPD) rose its “ugly” head - as far as some, mainly older, members were concerned.
As part of a wide ranging educational report to be published next year, I have reviewed the working of the CPD system as part of my post-graduate educational research thesis, and I came upon some startling findings from those I interviewed and researched.
A starting point was a ‘Training Journal’ magazine article, where Graham Guest defines CPD in what appears to be an acceptable form as the “systematic maintenance and improvement of knowledge, skills and competence, and enhancement of learning, undertaken by a person throughout his or her working life.”
In this excellent ‘educationalists dream article’, Guest includes, as suitable CPD activities the following: in-house training, open learning, short courses, conferences, seminars, workshops, structured reading, self-study, preparing and making presentations, and acting as a coach or mentor. The remit remains therefore highly vocational for many.
However, the fact remains that any competent professional will pursue such activities without being forced to do so, and would not have survived in our profession otherwise. And this is where the attitude problem arose with my interviewees: resentment.
Unfortunately, we now have substantial statutory regulation which forces everyone to identify that the heart of CPD is the process of learning, which takes many different forms depending on which educationalist you speak to. Guest and others have suggested that it may be formal, non-formal or informal.
Guest’s Education-speak
It is inevitable that much education-speak gobbledygook exists in any serious articles or comments concerning CPD today across the professions, and my research has certainly come across some beauties.
It’s accepted that formal learning has mainly been gained through structured courses run by education or training establishments, such as universities or colleges; usually by a certificate, diploma or degree awarded on successful completion and this will remain with a new Education and Skills Bill expected to be completed in 2008 or 2009 which raises the school leaving age amongst other measures.
For non-formal learning, we include programmes run by organisations whose prime purpose is not the provision of learning with examples being corporate training centres in, say, a large company where a certificate may or may not be awarded when learning has taken place.
On the other hand, informal learning can be gained in an unstructured way during the course of one’s work or outside it. This is often referred to as “incidental learning” and is, by its very nature, not usually subject to some form of certification.
So what should we barristers do? Barristers have their own preferred ways of learning taken now from a mixture of academic and vocational training as my research indicated. Each of us, I was told, when we learn anything new, typically pass through four distinct phases which Guest has helpfully re-defined for us in his article as:
1. Unconscious incompetence: we don’t know that we don’t know. We have yet to learn about a subject, such as driving a car or riding a bike.
2. Conscious incompetence: as we begin to learn something, we are very much aware of our failings and inability to master the skill we are trying to learn.
3. Conscious competence: we have begun to master the skill but have to maintain our concentration and are still prone to errors.
4. Unconscious competence: this is where we apply the skill automatically, without the need really to think about it. The unconscious mind takes control, leaving the conscious mind to think about other things.
Isn’t this stuff great?
When I did my teacher training we heard this sort of thing everyday… but it was such a change from court and client work, and is something we will all probably hear more of as CPD function is expanded because it is a money spinner.
So did we expect to undertake this when we first thought of becoming advocates?
In some respects, CPD is just a way of giving a name to a process that we have all been engaged in anyway, probably subconsciously when reading ‘The Times’ on the train to chambers. If we have been successful in our chosen career the chances are that we have been ‘doing CPD’ incidentally and without being aware of it since call.
THE CPD INSTITUTE
My starting point with modern, 21st century CPD thinking was triggered by a letter I received from the Institute of Continuing Professional Development (www.cpdinstitute.org). In it, the institute has described itself as a ‘cross-professional’ organisation, promoting the values of lifelong learning whilst encouraging networking and partnership amongst individual professionals and the groups they are associated with. So nothing wrong there, then.
I saw when discussing their role with them, that ICPD members are at the forefront of the current government’s lifelong learning policy which can be described as ‘learning from the cradle to the grave for both personal and professional enrichment, with the focus on the learner’.
What the ICPD fosters is lifelong learning in both professional and networking functions so that professional bodies like the Bar, business, education and training establishments, employers’ organisations and trades unions will retain an interest in supporting the CPD of their members, clients, employees and students through an approach based on partnership. The networking element identifies CPD and the wider concept of lifelong learning as vital ingredients in an increasingly ‘networked world’ (quite a change for the Bar, some might think!) as the growth of information and communication technologies dissolves distances.
One conclusion I came to was that the starting point for the CPD function is that all professionals (not just advocates) are assumed to be technically competent and managerially capable (even if they have small staff). Indeed, in our knowledge-intensive world some have argued that the only real source of sustainable competitive advantage is the ability to recognise and adapt to these changes faster than the competition. Most of my interviewee agreed with that point.
The commitment to keeping up to date has grown in significance as an increasing number of people recognise the benefits of adopting a planned and structured approach to post-qualification learning at a reasonable cost in time and money.
Commitment to CPD has acknowledged that becoming professionally qualified is not merely an end in itself - it is merely the beginning. Updating skills and knowledge on a continuous basis is essential to career progression, particularly given the passing of the 'job for life' and rigorously-defined career path cultures pursued currently.
The Institute is part of the Continuing Professional Development Foundation, an educational charitable trust providing high-quality and broad-ranging CPD since 1981 and now very much in vogue. The Institute does serve the public interest by helping to raise the effectiveness of professionals through the promotion of CPD as an important and integral element of lifelong learning but has been the subject of claims that it is a ‘bit of a money-spinner’ which I wanted to reject from my research as being an unfounded slur.
A REGULAR CPD COMMENT
‘CPD- an insult to the integrity of the junior barrister’
I received some surprisingly vicious views in a series of anonymous surveys with attendees at the updating Conditional Fee Agreement regulations courses which I have presented for the lat ten years as part of my own CPD commitment. Comments ranging from ‘waste of time’, to ‘money-making schemes for the clapped out’, etc filled the questionnaires I received. Frankly, some remarks were very colourful and clearly illustrated the resentment and irritation felt by many towards the new regulatory structure. The problem I had was that some attendees clearly knew much more than I did about specific aspects of the course seminars (but not everything), so they felt frustrated about being there.
So, how does CPD help you personally then?
A main theme running through current educational thinking requires that evidence be provided that learning has taken place. Benefits of CPD aren’t just felt when you’re going for a legal promotion or upgrading your qualifications. Many employers in the professions now value ‘learning agility’ as a core competency and this is to be broadly welcomed by the Bar in my view as we enter the new world of more formal appraisals by our peers even in our own world.
These are some of the benefits which the CPD propagandists (to some, ‘money-makers’) suggest:
CPD builds confidence and credibility -you can see your progression by tracking your learning on, guess what, …a ‘form’!
You will earn more by “showcasing” your achievements- a handy tool for job/career appraisals, and showcasing is such a handy word!
Achieve your career goals by focusing on your training and development, which I felt all members of the Independent Bar actually did.
Cope positively with change by constantly updating your skill set… by, presumably, reading ‘The Criminal Law Review’ assiduously every month.
Be more productive and efficient by reflecting on your learning and highlighting gaps in your knowledge and experience. Reflection is the key word here and I have little to disagree with the needs to do this regularly.
How does CPD help the Bar generally?
As chambers shift the responsibility for personal development back to the individual, the ability and insight to manage one’s own professional growth is seen as a key strength but just how relevant is this to us? Think of some of the published benefits:
• They help maximise staff potential by linking learning to actions and theory to practice (but we are sole traders).
• Helps HR professionals to set SMART (specific, measurable, achievable, realistic and time-bound) objectives, for training activity to be more closely linked to business needs (but we are sole traders).
• Promotes staff development. This leads to better staff morale and a motivated workforce helps give a positive image/brand to organisations (but we are sole traders).
• Adds-value, by reflecting it will help staff to consciously apply learning to their role and the organisation’s development (but we are sole traders).
• Linking to appraisals. This is a good tool to help employees focus their achievements throughout the year (but we are still sole traders).
In quite a few professions now, members (excluding student members) have a professional obligation to undertake a minimum of between 30 to 35 hours structured CPD work in any one year, calendar, financial or academic. This, it is often stressed is for the members’ own benefit, and often embodied in codes of conduct. Professionals should also, where possible and appropriate, support the professional development of fellow members and potential members of their profession.
It is worth remembering that any professional qualification gained has a limited shelf life when considered against the length of careers. The knowledge obtained when qualifying does not remain at the same level but is updated by training and personal experiences, i.e. by continuing professional development.
To strengthen the regulatory framework, each year, regulators will undertake random monitoring of the eligible membership in a given profession. Failure to reply to this monitoring does result in some professionals being “monitored” for their CPD commitment for three years to ensure that they demonstrate their compliance. Any failure to undertake these requirements can and now often does result in referral to the Conduct Committee for breach of a profession’s Code of Conduct. This is probably where the resentment comes in as many barristers I have talked to feel this fetters their individuality, and hence their special freedoms to act as advocates unhindered by threats from their professional guardians.
Personal Development Plans
Many professions consider that it is the responsibility of the individual to determine their own CPD requirements, and can be required to develop their own Personal Development Plan (PDP) at the beginning of each year to identify development activities they wish to undertake in support of their own objectives. This is when my research showed deep resentment and fears that individuals would, next, be told what they should undertake for development.
THE BUREAUCRACY BIT
Below is a typical guidance procedure which many now have to follow for completion of a Personal Development Plan (PDP) and a CPD record card similar to the sort of logs we must keep:
• Your CPD programme is personal — you should complete your PDP at the beginning of each year, this will assist you in determining your CPD requirements which should be relevant in your area of expertise or future career ;
• you are encouraged to consult with your seniors when developing and reviewing your PDP ;
• you must keep a record of your CPD activity — you should then indicate the type of activity and the number of CPD hours undertaken on your personal record card;
• CPD hours only include those where professional development has been achieved (a dangerous development when suggests that learning must have been seen to have taken place) ;
• you should maintain a file of all CCPD activity undertaken — you can show this to employers and clients (do you actually have the time for this bureaucracy) ;
• unless asked, you will not be required to send your PDP and record card to your professional body.
You should also:
• Use CPD as a necessary (and stimulating) experience to develop new talents and skills which will almost certainly be discussed in the new Education and Skills Bill produced in November 2007 ;
• identify and honestly appraise personal shortcomings in your role as an advocate;
• consider interests and responsibilities;
• think about changes which affect you personally or the profession at large;
• appraise present tasks and performance;
• consider career development or transition to a new role;
• consider how you will develop corporate, personal, management and technical skills;
• define priorities; short, medium and long term needs;
• consider time and costs available;
• think laterally because your CPD does is not necessarily expensive;
• consider networking throughout the Bar and at other professional meetings like the Bar Conference; find practical ways to meet your needs;
• expand on day-to-day maintenance of knowledge and skills;
• record and re-assess your personal CPD efforts on a regular basis;
• check progress and discuss with colleagues;
• modify and improve your plan as necessary;
• avoid downgrading CPD to a hunt for CPD certificates...which is what I found most do!
The activities are the best with the following being recommended for CPD:
• structured reading of books and periodicals (which we do)
• use of distance learning text, DVDs and CDs (which we do)
• writing articles/academic/professional papers (which we do)
• private study including systematic study of literature or learning a new and relevant language
• recording on-the-job research
• studies leading to a further qualification or academic award
• teaching — for those in practice
• practice — for those in teaching
• examining or tutoring
• committee/community/Institute work which extends peer group learning
• CPD clubs
The professional also see to be following a new organised CPD direction which includes: in-house seminars; joint programmes with other practices/chambers; local CPD events, like ones arranged by the Bar Council or other groups; regional or central CPD events, courses, conferences and seminars; structured professional presentations; and programmes organised by CPD consultants.
WAIT A MINUTE!
Haven’t we being doing this before? So isn’t this just a job creation exercise for bureaucrats? Remember, our profession tells us that we must demonstrate to clients, colleagues and the public at large the commitment, especially of practising members to be well informed and up-to-date in our spheres of involvement.
It is a matter of record that exercising due skill and care depends upon keeping abreast of developments by focusing the individual member’s attention on what is necessary to remain competent by keeping up-to-date and allows the Head of Chambers to develop a structured training scheme for the members of chambers; it shows that (fill in name of relevant professional body here) is promoting competence in its professional membership; and it shows the public that it is served by a profession intent on maintaining high standards.
So how does CPD benefit you now we have looked at the personal side?
The benefits of CPD aren’t just felt when you’re going for promotion or upgrading to chartered membership. Human resource managers now value ‘learning agility’ as a core competency and the Bar would appear to be going down this route; build confidence and credibility, you can see your progression by tracking your learning; earn more by showcasing your achievements; a handy tool for appraisals; achieve your career goals by focussing on your training and development; cope positively with change by constantly updating your skill set; and be more productive and efficient by reflecting on your learning and highlighting gaps in your knowledge and experience. My research shows that in the view of some this simply does not fit in with the role of the advocate as they see it.
So, as organisations shift the responsibility for personal development back to the individual, which is now happening to a greater degree, the ability and insight to manage your own professional growth as a lawyer is being seen as a key strength.
THE PROBLEM IS TOO MUCH REGULATION
Many interviewees felt we now have far too much regulation. To balance this, some suggested that, in order to maintain and enhance the quality of legal services that they offer, barristers need to update and develop specialist areas of knowledge and substantially improve their skills, and quite a few judges supported this observation. Furthermore, in the face of increasing competition in the market for legal services, barristers must have sufficient flexibility to adapt to the changing demands of clients, the profession and their own careers.
We know that the Bar Standards Board is committed to ensuring that the profession continues to offer legal services of the very highest quality, therefore it was decided that all practising barristers are required to complete CPD, and there was no democracy in this decision. Whilst attending courses alone will not guarantee that appropriate standards are maintained, the Bar Standards Board considers that mandatory compliance with a planned programme of CPD is essential if barristers are to maintain and improve their skills.., and the judges agree.
The trouble is, are we getting too top-heavy with the regulation? The answer, from my research is a resounding, yet anonymous, ‘yes’, with CPD driving people out because the profession they joined has radically changed. Although I thought the reality a little different when the numbers remaining in practice are now steady.
What are our current rules?
In the first three years’ of practice, newly qualified practitioners are required to complete 45 hours of CPD, including at least 9 hours of Advocacy Training and 3 hours of Ethics (the “New Practitioners’ Programme”). After the first three years of practice, barristers are required to undertake 12 hours of CPD each year, called the “Established Practitioners’ Programme”.
The BSB website gives all the necessary advice and paperwork but I did conclude that CPD is very necessary for some but not all. The concept has been imposed because those in authority knew it would not be accepted voluntarily and time will tell whether it is a success or merely an additional element of bureaucracy which most barristers thought they had escaped from by joining the Bar.
I concluded that the CPD system for us is here to stay but it will remain deeply resented unless it is reformed; it treats barristers as though they were back in school, but it also gives a great deal of new information which we might not have seen or heard. I started this review by saying CPD needs reform. It does and the best method suggested by interviewees would be a relaxation, and an acknowledgement that barristers should be able to fulfill their own destinies without recourse to disciplinary codes of conduct which appear bullying and intimidating in nature and far removed from the concept of the unfettered advocate. I fear my conclusion will fall on fallow ground and bureaucracy will continue to rule, stifling creativity and placing more unnecessary burdens on an already overburdened professional to the detriment of his work as an advocate.