Archive for the ‘Pupil barrister’ Category

Excuse the geek factor for a moment, but when Keir Starmer was appointed DPP I was excited. Excited as I thought it meant a complete change in the country’s prosecution policy. Less resources would be wasted on hopeless trials, there’d be less criminalisation of protesters, there’d be more prosecutions around misfeasance and there would be less of a pursuit of ancillary orders like ASBOs, restraining orders, control orders etc…

What a huge disappointment.

I’m not sure what disappointed me more, his initial decision and subsequent weak looking flip-flop on the prosecution of PC Simon Harwood, or the painful waste of money that was the ‘Twitter Joke Trial’ and the three appeals thereafter…

Now, out of office, all we hear, is his name and then the word closely there associated is, ‘victim’. And, the second word closely associated to him is, ‘Labour’. And in this strange dance out of DPP’s offices and back to private practice, the message (being pumped by someone, I presume in One Brewer’s Green) is that Keir Starmer will be standing for election, as a Labour candidate and he is going to be a champion of victim’s rights.

On the face of it, the cynics will grin a bit, and mentally note how terribly populist it all seems. As someone with a, ‘rights’ based practice, I thought I’d read what appeared to be the flag ship document from Starmer on the subject, in the Guardian, in ‘Comment is Free’.

http://www.theguardian.com/commentisfree/2014/feb/03/britain-criminal-justice-system-victims-law-public-prosecutions

There’s the link…

… and read it a couple of times. I actually read it three times. And I genuinely wonder if he has written it. Not because of the contents but the lack thereof. The essential point you’ll have all gathered from it is, ‘we need a victim’s law’ – but then there is absolutely nothing in the article that says what should be in it, the comments below say it all:

“So – are you proposing the most major shift ever in UK law to move away from the adversarial system (in all types of cases, not just cases where sex and abuse is involved)?”

“What system would you suggest?

One without lawyers? Just draw straws – short and your guilty.”

“Having taken the trouble to set out what you see as major flaws in the handling of cases of alleged abuse, all you are able to suggest by way of remedy is a “Victims’ Law” the contents of which you make no attempt to describe and a rebranding of the criminal justice system to incorporate the already discredited bureaucratic platitude “service”.

These are serious issues. Can I suggest you come back when you have given the matter more thought.”

And it goes on… and on….

The whole article is two dimensional. It’s meaningless.

Once you get over the fact that he hasn’t suggested what will be in his ‘victim’s law’, you then move to his justification of it. Most of it seems to be based on the fact that a number of victims told the CPS to quite literally, ‘fuck off’ – Starmer does not blame this on the CPS or the police, instead he blames it on our judicial system, and in particular the adversarial system.

The truth about the adversarial system

It’s easy to blame the adversarial system. It’s easy because it’s the dramatic bit, it’s the bit, where somebody stands up and suggests to the witness they’re mistaken, or they’re telling lies. But very rare is it dramatic like it is on TV, quite often in fact, when we call stand up and call someone a liar, we do so, because we know so. How do we know, generally, a piece of physical evidence, CCTV, a neutral witness and so forth.

It’s not nice being called a liar.

It’s certainly not being nice being caught as a liar.

The reason the CPS were told to fuck off…

May well be because a particular witness was caught in a lie. Every criminal barrister can tell you at least 3 or 4 stories, where the CCTV of an incident (which of course the CPS have!) has completely gone against a witness and their version of events.

Of course, there are other times where witnesses and victims don’t want to give evidence. There’s nothing quite as horrible as seeing a woman being frog marched into Court by coppers to simply cry in the witness box for 20 minutes. That woman (or indeed man) may well have written three or four witness statements, they might all be different, a couple of them may even say they don’t support the proceedings.

It is so horribly nannying, to say we’re going to put victims at the centre of criminal justice but at the same time say they don’t have any right to choose. It irks me so. You either have an impersonal system where by the state is treated almost like the victim, or you have a personal system where it is almost as if the victim directs the prosecution. But if you have the latter you have to let the victim choose, not just presume it’s right for them and sally forth on a prosecution against their will.

Oh, and if you do decide you’re going to prosecute someone against a victim’s will, then at least have the dignity and respect to prosecute the right offence. Strangulation of a woman, throwing a woman down the stairs, breaking her bones, breaking the skin, making her bleed, is not a battery, it’s an offence triable on indictment with a commensurate sentence.

And when you prosecute an offence, could you have the decency to do as follows:

– Send a lawyer with an up to date practitioners’ text. The law has changed since 2009.

– Send a lawyer who has had the papers for more than 30 minutes before the trial starts.

– Send a lawyer who has a level of advocacy whereby at the very least they can compete with a second six pupil*

– It it’s in the Crown Court, pick a barrister and stick with them

– Don’t reduce them to a X or tick system

– Be certain to follow the barrister’s advice on charge and on evidence.

– Be courteous and actually reply to the police officer in charge’s emails

– Don’t lose evidence

– Don’t lose witnesses

– Don’t lose simple cases

(Can I return to the ‘*’ point for a minute. One of the big things to improve CPS advocacy was to send round lecterns for CPS advocates in all Magistrates’ Courts. Fundamentally that makes no difference. Can I say why the standard of a second six pupil is the minimum (( and it’s not solicitor v barrister)) – it’s this: a second six pupil has had the following training: a year in a classroom learning about and doing advocacy exercises, 6 months following around and watch a senior barrister and their advocacy, has completed a course run by senior barristers and Judges as to their advocacy. CPS lose cases because a lot of their lawyers are not advocates.).

Don’t take an obvious point

Labour are taking the obvious point that it’s tough for victims of violent and sexual crime to give evidence. I quite agree. But, a 2D, half arsed, ‘victim’s law’ is not the answer.

And it’s horribly transparent, and disappointing, that you’d use an ex DPP ‘from the other side’ to try and push the point. It looks desperate.

The Criminal Justice Act 2003, did all sorts of damage to the English justice system, it was not properly drafted and has taken 10 years to be litigated and re-litigated. Please do not vote for a ‘Victim’s Law’ – it’s hollow and crass. Vote for a political party that will take the CPS, and take them to task rather than blaming a perfectly good, world replicated, safety conscious adversarial system.

This isn’t a post about whether criminals are all stupid. (FYI, they’re not all stupid.)

This isn’t a post about whether I’m stupid to be a barrister with a criminal practice. (FYI, I’m not rich and my feet hurt)

No, this is a post about whether the suggestion (and perhaps implicit snobbery)  that criminal counsel don’t cut it in the cerebral sense.

D’uh

These days all barristers have to reach a minimum degree class of II.ii so I’m told to get on the BTPC. They’ve got to then pass that and they’re free to get a clump of horse hair on their head.

Other than that, it’s upto each chambers to set their minimum entry standards.

This has been bothering me for the last few days for two reasons:

1) There was a little unpleasantness on twitter about the intellectual prowess of criminal briefs.

2) Thinking about my own future

You see, most of the Bar these days is specialised. People focus on one main area of law and stick to it. Sort of makes sense, surgeons focus on particular body parts/processes, but they’re still doctors at the end of the day.

And, in writing this, I accept from the outset that I’m not 100% in crime. But, I would say I’m 100% in criminal justice.

To give you a flavour, first five books in front of me:

– Foreign National Prisoners Law & Practice

– Public Order Law & Practice

-Blackstones Magistrates’ Court Guide

– Police Misconduct

– Administrative Law

So that gives you an idea. If anyone asks me what I specalise in I say ‘criminal justice’ – it makes them crease their forehead. If I say criminal barrister they think I’m an actor, if I say public law they think I’m an academic.

The upset

The upset was, (I don’t think intentional) about the criminal bar and its entry levels. The basic premise being that you don’t have to be as clever to be a criminal barrister compared to a commercial barrister.

Hmm, I don’t think that’s right. What’s right is the commercial bar will demand first class degrees and often post graduate degrees.

The criminal bar on the other hand (although not a low entry standard) will expect a good class of degree and other things. The other things are advocacy skills, life experience and increasingly the ability to generate work.

The academics for the commercial bar and public law bar are high, but other aspects don’t get weighed in as much.

But, academics aren’t so divisive. I’ve got the same degree as a mate from Uni,he’s at a top civil set, his contemporaries are similarly qualified on paper as me.

Other classmates had firsts and work in chancery sets/commercial sets and before doing so worked at law commission or similar. Are they cleverer than their criminal counterparts? I think often they are, certainly when it comes to ‘the law’ , analysing it and de-constructing it.

But, what was apparent when we were all packed off together on our pupil advocacy course was that intelligence comes in different forms. Those of us with a criminal bent would cross examine off the cuff and think on our feet, the admiralty/chancery brigade weren’t so comfortable on their feet.

Being able to think on your feet is a crucial kind of intelligence that all barristers must possess but to different degrees.

And, emotional intelligence too, more client facing the barrister, more necessary to be able to read people and relate to them.

The best example I have to disprove the divide is this: there was a fellow in the year above me at uni, super brain, did a BCL, taught law to undergraduates at Oxford, on the rise at the chancery bar now. Much respect for him. We were talking about our comparative practices, he said how much he’d love to do a jury trial but realised that he wouldn’t be able to present a case to a jury and cross examine like a criminal barrister could.

So, in academics there’s no doubts that there’s parts of the bar which are academically demanding. But ‘academic’ intelligence, or application of the law are not the only indicators of intelligence. It takes a great deal of intelligence to duck and weave with witnesses.

But the pay packet

I do genuinely think there’s a bit of assumption as to ‘cleverness’ in our pay packets.

Stop, you might be saying. Stop, the reason commercial barristers or public law barristers receive more money is because they’re dealing with high financial value cases and are privately funded.

But, I return to my bookshelf. If I were doing a parole board, I’d be paid more to apply to release someone from prison then I would when defending them to stop them going in there in the first place.

The way legal aid works in criminal cases is that it presumes I never write anything. It doesn’t pay me to draft advices or skeleton arguments. Legal aid in civil areas does.

So perhaps the way legal aid funding is distributed reflects what the government thinks of the criminal bar, they think it’s simple, it’s easy. I certainly don’t get paid to research the law! Afterall, these days they’re content to send non-lawyers to the Magistrates’ Court to prosecute criminal cases.

And that was my worry, should I switch focus from the criminal part of my criminal justice practice to the justice bit. I really don’t want to. I love a good legal argument but there’s nothing like the buzz of cross examining a liar.

Crime don’t pay

Leveson is my pet hate at the moment. I wonder the rates the lawyers are on who are involved. The Government, no doubt, are paying those lawyers much more than those who are in the Old Bailey in murder cases, or in Southwark doing multi million pound frauds.

Leveson is easier than a criminal trial, there’s no doubting that, so why the inequity/inequality in pay?

I think it’s because the Government think that criminal law is simple.

Bimbo barristers?

I hope you’ll agree, criminal counsel are not stupid. All breeds of barrister are different types of clever. Different depending on what their client demands.

The difference is that Government after Government have acted like criminal law is something that is simple and that doesn’t deserve to be properly paid for.

But then, let’s face it, it’s not just briefs. Dumbing down criminal justice is systemic. Less resources for police. Less police officers, more civvies. Probation officers not allowed to use their brains but just tick boxes. Privatise this, privatise that.

You’re criminally stupid if you think that the Government care about crime. How can they care about crime when they fail to properly invest in the criminal justice system.

FTD

In the late 90s, a black barrister appeared on television. She turned up to the chambers in Kavanagh QC and was instantly confused as an asylum seeker by the chambers stick-in-the-mud Jeremy Aldermartin.

Good old John Thaw took her under his wing and she won out over her plummy white male pupil rival. Of course, she faced racism on the way.

I think that was 1995.

It’s now 2013 – we’re still talking about diversity at the Bar.

In May of this year the Guardian commented, they said the traditions of the Bar were suited to those who were public schooled. The dinners made students from other backgrounds feel out of place. Dinners to me were easy. I went to state school.

Dinners for me were easy for three reasons: 1) I’m gregarious like most criminal barristers are; 2) for the big ones I often sat with ‘Silk Cut’ who would introduce me to the big names; 3) I’d been to Oxford so I’d done the sit next to intimidating figures I didn’t really want to.

Friends of mine who had been to other universities (privately educated before or not) – found it a bit more difficult. But nobody senior at the Bar ever talked down to them or were rude. In fact, they were incredibly welcoming.

So we can keep the dinner dates.

Pick a colour

In terms of diversity, there were 12000 self-employed barristers, of those, 1000 considered themselves as being from a BME background. What’s that? About 8%?

2001 census, the UK population was 92% white.

I don’t think colour is a problem.

One thing I do wonder about is how ethnic diversity is distributed across the Bar. There are senior black and asian barristers at the Criminal/Immigration/Public Law Bar.  The legal aid bit – what about in the commercial/chancery/admiralty sets?

Where were you schooled

I took another Barrister as a date to a party. One of my mate’s girlfriends who was a bit of a toff deployed her opening gambit: what do you do etc. Fair enough. Then, ‘Oxbridge I assume?’ to which the date replied ‘yes’ and toff approved, by the end of the evening she’d established where she’d gone to school and what her parents did.

Cringing yet?

It’s in the news this week. Firstly, the Sunday Times announces that public schooled barristers are disproportionately represented at the Bar and then the Etonian-son-of-a-judge pupil barrister was given a slap on the wrists for possession of drugs.

The Barrister presence on twitter is beginning to twinge and stir.

Why are the public schooled over represented at the Bar?

I think it’s simple. Public school applicants still do better at exams because of the personal attention and quality of education they receive. They are as a result able to access the best universities. And, the Bar wants to recruit the best from the best universities.

And so it should be.

The problem is, people still worry that the Bar is nepotistic. Won’t lie to you, I’ve seen an example of it. But that’s only one example in a much wider pool of entrants.

At the Legal Aid Bar it seems unnatural that nepotism would exist. It’s our job to represent all, I can’t see who ‘Daddy is’ really helping with that, nor where you did your GCSEs.

But for the ‘private bar’ – I don’t really know.

The real problem

The heart of the Bar identity problem as I see it, is that we don’t want to be seen as Jeremy Aldermartin/Clive Reader types. We want to be seen as being open to all who merit entry.  And that’s good as far as I’m concerned.

But, we’ve got a problem with recruitment. The problem is, we don’t know what image we’re recruiting in. Who do chambers want?

We want to be an elite profession but not elitist.

(So, do we fight the Oxbridge/Russell bias?)

We want to be an international profession but maintaining British standards.

(Do we prefer home grown, or try and bring in non-British nationals?)

We want to be service all parts of the community but want to be paid properly for it.

(We want to attract people from all sectors of society, but how do we pay for poorer entrants to train?)

We want to provide a service based on standards but is commercially viable.

(Do we choose candidates who are the best as bringing in the business or doing the work?)

Want to be traditional but yet progressive.

(Some of our traditions are linked to some of the most noble of our values but they may turn off entrants from diverse backgrounds)

We want to (in the most part) remain self-employed but want to support people from non traditional backgrounds

(Self-employment assists our independence but how do we support single Mums/Fathers or Carers who want to enter the profession)

Magic wand

I don’t think we can wave a magic wand, such as targets as to recruitment or such like. It won’t solve the problem. The Bar won’t change until it knows what it is in 2012.

If you’re thinking about the Bar though, I can assure you, we’re not all public schooled, Oxbridge educated, British white men.

FTD

If you follow me on twitter you’ll know I’ve had one of those weeks. There’s a pain in my neck and I’m not entirely sure if it’s from leaning over a computer or sleeping on a train.

When I finally got out tonight I was ready to switch off. So I dialled up ‘Pretty Boy’ – not that he’s inane, but when I phone him I don’t have to talk about crime, criminals, coppers, prisons or anything like that …. the conversation is much more… extra curricular. And, after ‘Pretty Boy’ I was going to call ‘TV Blonde’ – neither answered.

So as I wandered along through the streets of legal London, dragging wheelie bag behind I got thinking.

First, I smiled to myself, a helpful message @MPSWandsworth my local police, they looked into something I had concerns about. And, they’re fans of my blog, I laughed to myself, funny how many police readers I actually have.

Then I looked at twitter as I wandered along. The tweets were quite sad really. Sam Hallam was a happy piece of news in a sense, but sad that justice had taken so long. The Law Society announced what can only be described as a laughable minimum wage for new trainee solicitors and the police continued to talk about Winsor. Meanwhile home affairs correspondents and police commentators were talking about police privatisation. In other feeds human rights heroes, Hugh Southey QC and Mark George QC were talking about the death penalty.

I was shocked to see how many people had retweeted, my simple missive of the day:

‘Cut legal aid, lower advocacy standards, destroy the independent Bar, privatise the police and then #samhallam will be the norm. #legalaid

There is a divinity that shapes our ends, rough-hew them how we will

I had a total selfish moment. Bloody hell I thought, when I signed up for my wig it was meant to be simple, do a job I love, defend people in a fair forum, be paid a decent wage, get silk if I’m good enough, retire, die happy.

Now it hardly seems possible.

And then I thought, look at what I’ve missed,Bushel’s case, Somersett’s case, defending the suffragette, marching with the civil rights campaigners for racial integration here and in the US, busting the corrupt police squads, the Guildford 4, Birmingham 6.

And it’s only going to get worse, hellish vision posited here: http://forthedefence.org/2012/04/14/the-way-were-going-criminal-justice-2025/

I got quite depressed, as if I’d missed my moment to make a difference.

But then, I actually realised that we’re standing at a moment in history. A fundamental change in how we deliver criminal justice in this country. It started slowly under the Labour Government.

So: PCSOs, unqualified prosecutors in the Magistrates’ Courts, cuts to legal aid, erosion of the rules as to hearsay, the right to a jury trial and bad character evidence going before juries. A prison service which was underfunded and actively supplanted by the private sector. The probation service’s culture fundamentally changed virtually overnight. Indeterminate sentences handed out all over.

And nobody really paid attention to the slow drip. People complained about the individual changes, but nobody stepped back and looked at things in the whole.

In that environment, Barry George, Sam Hallam wrongfully convicted, probably with many others. It took what, almost 20 years to get justice for Stephen Lawrence.

Now, because of the economic circumstances, that drip has become a gush.

The police have marched against Winsor.

Court staff have walked out.

I’m going to have to learn four languages as there’s no interpreters left.

Barristers are trying to work out if there’s a right for them to strike.

Judges are complaining about declining standards in prosecutions.

People are worried about declining standards in criminal defence.

Trainee solicitors in legal aid fields are looking at a better living in Tescos.

People are asking whether you get a better service if you pay for your own defence and some lawyers are saying yes.

Naturally, we’re all concerned about our own position. We’ve all been reviewed individually, the Bar had Carter, the police have Winsor, the prison service have endless reviews and the probation service have a new name every other week.

Now, we’re saying there should be a Royal Commission on Policing, there should be advocacy tests for defence barristers, we ask Serco to fill the gap where public services used to.

When we say, we don’t like that, we’re accused of self-interest. And, of course that’s true, we are self-interested to a certain degree. But I hope people who don’t work in the criminal justice system accept this:

We were never in it for the money. If I’d wanted to earn more, I could have sat in the office next to ‘Pretty Boy’ in the city.

We’re vulnerable, why, because we’re in a vocation, our vocation is to secure justice, that I hope is the same for lawyers, coppers, probation officers and the rest…

And that should be our focus.

Hold the line

Has been a popular hash tag of the police in their campaign. A terribly British phrase which conjures a mental picture of other glorious moments in British history.

So rather than fighting individually (with the risk of being accused of self-interest), explaining how the gush will wash away our part of British criminal justice, why don’t we fight together for a single vision.

My Moses Moment

In my view, the ten commandments of British criminal justice are these:

1) The purpose of the criminal justice system is to protect the individual. Be it, to protect individuals from crime, protect individuals from the coercive power of the state, stop individuals from patterns of destructive behaviour and provide their safety through the passage of the system if Defendant, witness or victim.

2) The police, must police by consent. The police are holders of public office and can never be privatised. They must remain independent from Government, prosecutors and the media.

3)  Every person accused of a crime deserves quality legal representation. Quality of defence should not depend on ability to pay or the financial arrangements between legal services providers and the state.

4) Every person accused of a crime deserves to be tried by an independent body of their peers. The Magistracy must be diverse in age, race and gender and reflect their local communities. The Magistracy must be able to perform their function without excessive interference of the state. If accused of a serious, indictable offence, then every person has an absolute right to trial by jury.

5) Children should not be criminalised for trivial offences. Grass roots discipline comes from teachers and parents/carers not from police officers, lawyers and Judges.

6)The mentally ill should not be punishment for offending. Their treatment is from the social welfare element of the state not the imposition of punishment by the criminal justice system.

7)Prison shall be used as a last resort. Effective community punishment should be the preferred method of disposal. Restorative justice should be common place. For those who custody is the only option, they should be held in public owned prisons where their rehabilitation is the main aim. Punishment, be it in the community or in custody, ought never be for profit.

8) The purpose of the probation service is to prevent re-offending. This  is not an actuarial science, instead it is an idiosyncratic process where well funded probation officers aid offenders in re-integrating into society.

9)The Crown Prosecution Service must remain independent. They must make decisions as to prosecutions free from pressures of the police and the executive. Prosecutions should be based on local need and the prosecutor’s code not concerns of the media and/or pressure groups.

10)The Criminal law protects all and applies to all. Nobody will ever be subject to scrutiny by the police or punishment due to their race, age, gender, nationality or sexual preference. Nobody is above the criminal law due to their occupation, office or income. The Criminal law is deaf to the media but is open and accessible so that the public can see that justice is done.

At the bottom of Mount Sinai

I hope we could all be there together. Those above are my ten commandments. I am sure some of yours would be different. But imagine if we could agree them.

What an amazing message that would be to Government and to the public.

If we all held that line together.

Imagine the march, where I stood there wig and gown, next to me was a Magistrate like Bystander, on the other side a cop, or @Chairforce1, maybe some senior members of the judiciary, QCs too and solicitors from the £6 per hour trainee to the big hitting leaders  of major legal aid firms and the prosecutors, probation officers and YOT workers. Marching behind, coppers in their tunics, Occupy protestors with their banners, victim support workers, legal advisors to the magistrates and qualified criminal justice foreign language interpreters.

That’s not just a line. That’s a dam which could stop the gush from washing away 100s of years of British justice.

FTD

I’ve just found out from Bystander’s blog that District Judge Phillips is to retire this year.

It had two instant effects on me:

1) Feel old

2) Feel sad

DJ Phillips sits in West London. When you’re first on your feet he’s one of the Judges that young lawyers get told about.

I feel old because to me he was one of the Judges I cut my teeth in front of. From shopliftings in the West End to serious offences I had to deal with the first hearing on, perhaps on a wet miserable Saturday morning.

I feel sad because I’m so fond of him. Our first encounter didn’t go well, I was representing someone with a drug addiction. I can’t remember what I said, it was mention of my client’s addiction, I said either, ‘drug problem’ or ‘abuses drugs’ – something similar to that. He snapped at me, told me to change my words, whatever he said made it clear to me that the Defendant was more than just a drug problem, but was a person with a horrid affliction.

But from that point on we got on. I walked into his court one morning instructed late and somebody else was on their feet, he interrupted them, ‘excuse me a moment, Mr FTD, it’s been too long since you’ve been in my court, good morning to you.’ It was a kind nod in my direction.

And there’s nothing better than this, one day I walked in, my client looked very sheepish indeed, he was a young lad, ‘Right then X, you’ve got Mr FTD I see, good choice, but I’ve telephoned your Mum, you’ve been giving her some jip.’ His personalised approach made a massive difference, even Defendants were fond of him. I have no doubt that his approach has rehabilitated a number of young people who otherwise would have found themselves as repeat customers of the criminal justice system.

To me, I’m sad to see him go as he’s always treated lawyers like humans and clients too.

Bystander wrote that he was concerned by ‘idiosyncratic’ decisions of District Judges, when the lay magistracy felt constrained by guidelines. (You can read it here, http://magistratesblog.blogspot.co.uk/2012/04/moving-on.html )

My message is this, look past the thick glass of the dock and look at the human inside. And don’t assume all lawyers are pinstriped wallet fillers.

And Magistrates remember, guidelines are to guide you, not bind you – guidelines not tramlines.

Finally, best of luck with your retirement Sir, if I make a full innings in my profession then the first chapter of my story is dedicated to you.

FTD.

The year is 2028 and the last fifteen years have seen more change in English criminal justice than the 150 years before it.

The rapid change began toward the end of 2012. The Winsor report was on coffee tables across Westminster. The Police Federation march had put the rank and file officers in the cross hairs of the coalition.

Meanwhile, after 4% pay cuts across the Criminal Bar, a  number of mid ranking barristers have found themselves without employment as the CPS have restricted who can prosecute on the basis of how barristers fill out a form. A number of cases have collapsed as the jilted barristers refuse to prosecute.

And whilst prison numbers have reduced, the Government are not looking to share the scarce resources of the prison service, instead, to target and remove another prison establishment.

Double dip

The default of Greece in 2013 led to a Europe wide recession.  Germany, France and the UK as a result had to restructure public finances to keep the European project alive.

Overnight there is a hole in the public finances.  Defence recruitment is frozen. Public sector pay is subject to a wide review. University fees go beyond £10k. Fare subsidies are cut and capital transport projects are delayed. Again, nobody is prepared to consider waste in the NHS or rationing the provision.

The Government have passed early release legislation, a number of prisoners are released early. There is only the support of charities to help them.

Whilst in Eastern Europe organised crime has used its free movement rights across Europe. Multi national, cross border crime is now the norm.

Save money, save it quick

The need to save money quickly caused the Government to look at whole sale reform in crime and criminal justice.

By 2018 every category B and C prison was in the control of private companies, there is no focus on rehabilitation at all. The focus of these establishments is to hold inmates as cheaply as possible. The Prison and Probation Ombudsman was incapacitated by the number of complaints, in particular as regard to use of force. The majority of the open, category D prisons have been closed, the remaining two which are open are run for those coming to the end of life and IPP sentences, they are contracted to charities. Whilst the Government pays for the room and board of the prisoners, it is for the charities to fund rehabilitative and resettlement opportunities.

The recession has had a wide spread impact on crime. Most organised crime has now got a European dimension. In 2016, the European laws with regard to extradition were abolished. All over Europe savings were made in domestic legal budgets. Instead of domestic police forces dealing with extradition an European Marshall Service was created. The European Marshalls have jurisdiction throughout the EU and can arrest anybody to whom a warrant applies.

The police have taken the Winsor report to a new extreme. Entry requirements for officers is high indeed. Most officers are now taken directly at the age of 21 from Russell Group Universities. The low entry pay being offset against the job security that policing officers. This lack of diversity amongst police recruitment has led some to conclude that the police are no longer representative of the public.

In any event, the general public had little contact with the actual police. Instead, the obvious saving was to increase the power, but not the pay nor the training of PCSOs. In 2018, the Police Reform Act gave PCSOs all the powers that police constables have, the only difference being that they only exercised their powers whilst on duty, in full uniform and in their force areas. Despite the Police Federation warning that it might lead to lower standards of policing, UNISON representing the PCSOs demanded the powers and access to weaponry. There was no entry requirements for PCSOs and they could be recruited from the age of 16.

The Labour Party, receiving funding from UNISON could not oppose the new powers to the PCSOs.

By 2019, the public complained that the police were ruder than ever, violent and unresponsive. Crimes went uninvestigated. The IPCC were buckling under pressure and police forces were having to build contingency funds for litigation.

Looking to impress

In 2019, David Cameron was heading toward the next election, the end of his second term. Facing rising crime rates and heavy criticism from the public as to policing, the Conservative government enacted the Criminal Justice Reform Act 2019.

Overnight the Magistrates’ Court was renamed the District Criminal Court. The Magistrates were abolished. Instead, their legal advisors were overnight promoted to District Judges. The conviction rate in the lower court went up overnight. Money was saved to put toward popular public projects.

Appeals from the District Criminal Court to the Crown Court and High Court ended. Instead, appeals were sent to the Senior District Judges, mostly the District Judges who had been in place before the change.

In the District Criminal Court the law was changed with regard to representation. Barristers and solicitors continued to appear. But, also trainee solicitors were allowed to appear in the Court. Additionally, police station representatives with no formal legal qualification and CPS caseworkers were now allowed to do summary trials.

By the end of 2019 the public complained that the Courts were a mess. Victims complained of improper treatment and witnesses went either unquestioned or were subjected to clumsy questioning. The Law Society and the Bar Council complain loudly that justice cannot be done in these new criminal courts. The Government resist any suggestion that these District Criminal Courts ought to be televised.

The Government rejoice that they have increased the success rate of prosecutions whilst saving costs.

The final chapter of the Act was to remove the application of the Human Rights Act to any person or situation involved in the criminal justice system, prompting widespread protests from liberties campaigners and a crisis in the Higher Courts.

Third term

The libertarians may not have liked what was said about the Human Rights Act, but the rhetoric of the right wing electronic and visual press helped get the Conservatives a third term. The crime problem was supposedly solved with the increase in successful prosecutions and money was being saved to purchase shiny things.

And in 2020 huge capital investment was provided by Government into transport, energy security, new technological industry and the development of small enterprise.

Part of this was funded by the wider world economic recovery, otherwise by savings from elsewhere.

The big promise to the public was to put local power back to local people. That though had to be offset about the reality that a closer Europe would require European solutions.

The new reality. PSCOs have been doing low level, local policing now for several years, the public though want the police back. The solution? Every local authority becomes responsible for its own day-to-day policing. They can choose from a number of providers, Serco, G4S etc.

The remaining police force is reshaped and the numbers decreased. There is now one national domestic police force, responsible for policing serious offences.

To cope with European Union wide criminal offending the European Marshall Service is extended and expanded. In 2021, the European Union Crime Agency was formed. Their remit to investigate ‘Federal Crime’. A new multi million £ court house is opened in London, Birmingham and Cardiff.

HMP Wandsworth is taken away from G4S control and becomes EUP Wandsworth. It holds those who have committed Federal offences.

Despite British objections all EUCA Officers are routinely armed with Austrian made glock semi-automatic pistols. The proliferation of weapons throughout Europe, in particular of old soviet and adopted pistols, means that the Government decide to routinely arm all members of the national police force. Webley & Scott produce side arms for the first time since the 1970s. A signficant number of officers are sacked when they refuse to collect their weapons.

Just outside of Temple

There is a large stone building with oak doors, brass door knockers and black iron railings. It looks more 1925 than 2025.

The building inside was tidy, but modest. In three open plan offices, INQUEST, the Howard League and the Prisoners’ Advice Service go about their business. They survived the recession and legal aid cuts by sharing a building and some other costs.

On the floors above is one of the few barristers’ chambers which survived the reforms.

There are five criminal barristers’ chambers left in London. And even then, criminal law is not their main source of work. Of those chambers, two will only accept work on a private fee paying basis. The other two only represent the Government and the private companies involved in providing ‘criminal justice.’

The chambers FTD is a member at is the one outside of Temple. FTD’s practice is mostly paid for by wealthy individuals, sometimes solicitors firms are able to persuade their paymasters to  get in an independent barrister, but it is in less than 5% of cases. Nobody junior in chambers just has a crime practice. Actions against the police are booming, the untrained PSCOs with greater powers were a liability, the privatised PCSOs are worse.

A number of members of chambers work in the International Criminal Court and in the European Federal Criminal Court. It is very rare indeed they would get involved in a normal criminal offence.

Barristers are now instructed not only by solicitors in their own jurisdiction but others in Europe too.

In 2025, solicitors are in a recruitment crisis. National firms of solicitors won all the contracts to provide criminal defence under legal aid, they squeezed and squeezed each other to do it as cheap as possible under the ‘Best Value Tendering’ scheme which has crippled the profession for the last 10 years. The result is every lawyer has a huge caseload and little support. There has been little to attract high quality candidates into the criminal law as the money at the bottom end is so bad.

People mortgage their homes and sell their possessions if accused of a criminal offence to pay for proper representation.

A number of Judges and retired lawyers are making it clear in their media that they think there are huge numbers of miscarriages of justice. City law firms are taking on criminal appeals pro bono as obvious wrongful convictions flourish.

Another video was released of privatised community police abusing members of the public. One 17 year old private company police support officer was seen racially abusing a group of youths. Another has been indicted for extortion. The English national police force are having to spend large amounts of time investigating their private company colleagues.

Prison is having next to no effect on re-offending rates and crime is on the rise again this year.

Tomorrow, the Sun on Sunday will launch its return to justice campaign, calling for improvement of legal aid lawyers and an entirely public run police force.

FTD is appearing on the Sky E News bulletin to remind the Government that they were warned of the risks many years before.

Drip drip

I don’t mean to be a drip.

But, lawyers who are not properly trained and not properly resourced will not succeed in securing justice. Graduates from top universities will not be attracted to legally aided law if they see it as being unstable and offering no financial reward whatsoever. The slow drip out of the legal aid budget (and these annual 4% gashes) will kill quality. BVT would end it all together.

Would you be comfortable to live in a society where only the rich could access the best criminal defence?

Privatising police forces will lead to injustice, not only in employment terms, but to persons who are policed. Again, reduce training and entry standards you will reduce service.

Would you be comfortable to live in a society where you are policed for profit not protection?

And we ought to recognise that with the continuation of the European project there will come a time that we need to have a serious consideration as to the lines of jurisdiction. The more integrated Europe becomes more integrated crime becomes. Is anyone being honest about the prospect of European criminal justice?

Honesty too must be applied to our policy of imprisonment. If you cut funds to prison the frills go first. The frills are rehabilitation. Without rehabilitation you are merely locking people up in a public funded barn.

Criminal justice cannot be privatised, small slices lead to large injustices in the long run. If you don’t pay for proper criminal lawyers then you will never achieve criminal justice.

Is my vision of 2025 so unrealistic?

FTD

I realised the other day that I hadn’t done any prison law in months. It didn’t really worry me, when barristers are busy they don’t really worry at all.

But then I spoke to a QC in chambers. In terms of prison law, she’s one of the stars and has done some of the most interesting cases. She was asking me how I was doing with prison law, and I told her, she said I’m not alone. Even she has very few prison law instructions.

In terms of prison law practitioners, there were never many of us in the first place. And of the prison law lawyers, only a few did the whole ambit of prison law. In a basic sense prison law has two aspects: advocacy relating to release and litigation relating to conditions. The advocacy aspect was parole boards and adjudications (mini criminal trials in prison), the litigation aspect was amazingly varied from a prisoner’s security category to their rights to have visitors from their family.

And in terms of clients, prisoners are some of the most vulnerable. A prisoner can’t just pop down the local high street and visit the local solicitor or law centre. If they’re denied legal aid, they can’t sell assets or ask family members and friends to help them out. Nor can they visit the local university’s law clinic to ask law students to help for free.

Prison law: a potted history

In all honesty, there’s not much to the history of prison law.

In short:

Habeas Corpus Act 1640

Somersett’s Case 1771

Abolition of debtors’ prison 1869

Abolition of death penalty act 1965

But since then there has been an explosion of litigation.  A cadre of dedicated advice workers, solicitors, barristers and campaigners have pushed the envelopes of the minimum standards that prisoners can expect. They have fought to eradicate racism in prisons and to recognise that women prisoners have particular rights specific to their gender.

And to get to that point? A fraction of the legal aid budget, a very small fraction indeed. Every solicitors firm with a criminal contract were allowed to practice in prison law.

But then

With a populist stroke of a civil servant’s pen the outlook changed. Rates for prison law work were cut and firms were required to apply for a specialist contract. Each firm had to have a supervisor with large amounts of experience to supervise their prison law output.

The result? Overnight prison law practitioners shut up shop. Solicitors who had been practicing prison law were sent back to the Magistrates’ Court to fill duty solicitor slots. No new practices could be opened as they could not find the personnel to act as supervisors.

The net result? Less capacity.

Rights with an expiry date

Rights are useless without lawyers to enforce their recognition. I spent fifteen minutes or so trying to find training contracts being advertised for new solicitors to practice in prison law, I couldn’t find any. In terms of pupillage, I found four pupillages with a prison law aspect in chambers and two at solicitors’ firms with a prison law aspect.

But of course there has to be work for those pupils to do otherwise all they will do is learn from their pupil masters and when they’re off on their own have no hope of accessing any work to build on their own practical skills. If those pupils cannot find prison law work then they will be forced to abandon it as a practice area.

Charities will not be able to fill the gap. American prison law litigation (which is at least two or three decades between our own) is funded via charity subscription, mostly through the ACLU, but here there isn’t the same option. English prison law litigation is expensive. The Prisoners’ Advice Service, the Howard League and the Public Law Project all maintain legal staff, they do so as charities, they couldn’t on top pay for the litigation they undertake, they need legal aid.

Pro bono? Can you imagine city law firms dedicating time to represent prisoners? Hardly as great a photo opportunity as mentoring children in Tower Hamlets.

And on the other side

The Treasury Solicitors who represent the Government against these campaigns are still recruiting trainee solicitors and pupil barristers. In addition, the Treasury Solicitors run a ‘baby barrister’ scheme so that new barristers are exposed to public law litigation which will include prison law claims.

They cynic in me wonders whether there’s more to all this than meets the eye. Prison law and prisoners’ rights are never popular, especially not in the media. The prisoners’ right to vote cases have embarrassed both the present government and the previous government.

But yet, the prison law budget, although a fraction of the legal aid budget has had such minute examination. Oh, and I should point out, that examination started before I joined the Bar, before the cuts to other services all began.

The result of the above is simple. There’s a countdown on those prisoners’ rights that we have invested in over recent times. They will soon become worthless if there are now new lawyers to enforce and protect those rights.

FTD.

I sound like one of those American survivalists. I’ll be sat in Chambers with huge stock piles of pink tape, biscuits and counsel’s notebooks. At night I will sleep on the library floor and burn a copy of Halsbury’s for warmth. I’ll have enough tunic shirts dry cleaned and pressed so I can go to Court three weeks straight.

The Olympics are upon us. In the pub, the robing room, the library, people are wondering if all the train stations will be finished. Others wonder if the hospitals will cope or their holidays be disrupted.

But I’m wondering what’s going to happen to the Courts.

We’re expecting at least 450000foreignvisitors to the capital. That’s about 10 times London’s permanent population of Americans or Australians.

There’ll be domestic visitors too.

And it’s not only London, Coventry, Eton, Manchester, Weymouth and my own Wimbledon.

Preparation, preparation, preparation

We have seen the Met and BTP pretend to blow up a train station. The Marines have been throwing stun grenades on the old Thames Clipper. Even ‘Housemate’ been preparing one of London’s most major services.

Because, more people, means more use of services. More people means more risk.

And Courts are a public services.

And like it or not, Courts need various people to run. The criminal courts need cops, Counsel, solicitors, interpreters, witnesses, the works.

Immigration tribunals need UKBA staff, Counsel, solicitors, interpreters.

Extradition courts need Counsel, solicitors and lots and lots of interpreters.

My glass half empty vision

And off the planes, trains and boats will come some tourists, brandishing expensive electronic goods, dripping in Swiss watches and bum bags overflowing with £ sterling. And of course, with them, will come pick pockets, thieves and muggers.

Desperate asylum seekers will take advantage of increased traffic flow and try and stowaway at every port.

People with a past will find themselves flagging on an European Computer system as they cross into the UK. Soon after they’ll find themselves in handcuffs on European arrest warrants.

The result:

More work in the criminal court, more work in asylum tribunal and more cases in the extradition court.

Shut up FTD, more work means more money for you – does it?!

My vision of hell

You see, already there’s a shortage of criminal lawyers. London solicitors will be busy during the Olympics. They’ll be in the police station at all hours dealing with those robbers, they’ll be waiting for interpreters and investigating officers. The next day at Court, they’ll have to wait as the security vans take longer to deliver prisoners to Court. The new interpreter booking system which is already malfunctioning will simply fail.

Counsel will not be able to fill the gap, the transport problems will mean that junior counsel are not able to cover two courts in one day. The others will be in rural courts near where a large event has been held, or in the extradition court.

The Courts will have to sit late to try and free up the prison cell spaces.

But they’re already jammed. The extradition cases generated will need to take up all of the remaining places at HMP Wandsworth. There are not sufficient defence extradition solicitors and counsel to cover all the cases. A number of warrants will be discharged as persons arrested on warrants will not be brought to Westminster promptly.

The more senior immigration and extradition practitioners will be queuing up to get cases heard urgently in the High Court. Whilst the more junior practitioners will be queuing up to try and find a single interpreter. Of course they won’t be able to, as now all the Courts use the same limited pool of interpreters.

Solicitors and Counsel will run out of steam quickly.

And they won’t be able to call in reinforcements. The CPS won’t be able to go out to Counsel as they’ll be booked up. They can’t go to other agents  as they won’t be on the CPS list.

Lawyers won’t be drafted into London from other parts of the country. Why? Because they’ll be busy with their own increased caseloads. Some smaller places touched by the Olympics will have to call in what few free Counsel are available.

And who is going to pay for all this? How long is it going to take to process legal aid applications? Solicitors firms face being saddled with huge bills from agents and Counsel.

Google says

I was speaking to folk in chambers today about all this, the hell that I expect. They all just tell me to chill out. The clerks don’t have any plans apparently.

Well, if I google, I’m sure I’ll find something.

The plans? Close courts, send Judges on holiday… that will free up some police, some barristers, but won’t increase capacity in real terms.

Seems nobody has thought to talk to the lawyers from what I can find.

Maybe I should just chill out and then enjoy the ‘I told you so’ in 150 days time.

FTD

 

 What I have found really worrying about the way that people are pretending to support pupils whilst pretending that I do not, is the way in which they have phrased such “support”. Far too many of the reactions I have seen are full of self-serving ersatz indignation and can be fairly summarised as: “Look at me. I can show I’m down wid da kids by saying they contribute value by helping established figures do their research and answer questions about new law and sit there taking notes. And, if I say so, I’ll look well cool and gain even more cred by calling out a silk”.

Simon Myerson QC on http://pupillageandhowtogetit.wordpress.com/2012/02/27/slightly-famous-for-about-3-minutes/

And in response to Coffee v Pupils

I don’t know if he means me but I hope he doesn’t.

Because

He has now accepted that pupils contribute. He responded to what @lincolnslawyer wrote. He has publicly said that:

I ought to make it clear that of course pupils contribute something during pupillage.

Neither Sara  (@lincolnslawyer) nor I were trying to get cred. But we both come from the same position. You see, @lincolnslawyer and I both had a mentor whilst were searching for a pupillage, we in fact had the same mentor: ‘Silk Cut’. Both Sara and I did death penalty work pre pupillage. Both Sara and I had a job doing our own advocacy, managing our own caseloads and instructing counsel pre pupillage. Both Sara and I took a paycut to become pupil barristers.

I am incredibly grateful (as I know she is) for the support ‘Silk Cut’ gave us. I have no doubt that both of us feel that we owe something to the next generation and will protect them where we can. That’s why I wrote what I did, not to get ‘cred’.  And, to encourage junior members of the bar to become more involved in our own future.

Courage

Also, I would ask him to remember, anonymous, sobriquet or by real name, it takes a lot of courage for junior members of the bar to publicly contradict silks.

And it’s when I started thinking about courage that I realised something. We weren’t brave at bar school. Again, we were outside moaning, we’d send the occasional clipped email, but we never wanted to rock the boat. The fear was, that by rocking the boat our BVC (now BPTC) provider could narrow those pupillage odds even further.

I had vowed to email, or write to the powers that be when I got pupillage. But, I didn’t. There’s a lot wrong with our current system of legal education, in particular the BVC/BPTC course and some of the providers, ne’er shall it improve without the intervention of barristers.

Shoulder to shoulder

The Bar will survive. And it will do so by Simon Myerson QC running a blog about how to get pupillage. I hope fellow Silks will consider how to protect the squeezed middle of the bar. It will survive by ‘Silk Cut’ mentoring more bar school students. I hope others at his level will look after the youngsters like me. It will survive if @lincolnslawyer and I look after pupils, current and future.

My commitment

So I am going to put my money where my mouth is:

I am going to write to Professor Andrew Sanders the Chair of the Education and Training Committee of the Bar Standards Board. I am going to make some suggestions to him about how we can improve the BPTC. In particular, I am going to suggest that each provider has local junior barristers who are available to be contacted about problems with courses. I am going to ask that those junior barristers visit the local provider and are accessible. I am going to ask what is being done about numbers of entrants compared to pupillages. I am going to ask that a junior barrister as well as a senior barrister is part of the team that does the annual provider visit. I am going to ask that real thought is given to having discussions with banks about their finance packages for BPTC students.

Is there anything else you want me to write? Stick it in the comments section or tweet me.

And I’m going to email Benjamin Wood and Tope Adeyemi, two of the junior members of the committee who I know and ask them to lend their support.

The phalanx

So,  let’s put our shields together. Let’s all sign up.

And when we’re all together you might just see me and a blogging QC rap battle for a laugh.

Innit.

FTD.

 

In the last 48 hours, two friends, a family member, a twitter follower and an instructing solicitor have all expressed surprise that I’m so quiet. Not quiet in general, but on a certain issue.

‘Pupils contribute nothing’

Or,

‘Coffee v Pupils,’

Or,

‘Myersongate’

I think I prefer Myersongate.

In short, http://www.legalcheek.com/2012/02/simon-myerson-qc-12k-minimum-pupillage-award-is-fair/ Simon Myerson QC writes on legal cheek. In response to the suggestion that we give up a coffee a day in order to pay for pupils to secure the future of our profession.

The commercial silk says that pupils contribute nothing to chambers during their pupillage.

Watching and waiting

I’ve watched the fall out, not only on legalcheek itself, but also on other websites.

The feeling from other barristers, pupil barristers and bar school graduates has been resolutely contrary.

In my own mind, the suggestion that pupils contribute nothing is absolutely laughable. I drafted for senior juniors, I did legal research for solicitors, oh and when I got on my feet I gave chambers 10% of my earnings, brought in new solicitors and when we were short of clerks I humped box files from one chambers to another.

So, pupils contribute nothing?

Balls.

Also, I feel a responsibility to protect and encourage new members of my profession to come forward. Without barristers like ‘Silk Cut’ giving up his time, I would never have come to the bar. I now feel the same responsibility and help where I can.

But I’m worried

I find it worrying that a QC would make such a broad statement. I am not sure if it’s the same Myerson QC who is at Byrom Street Chambers. Byrom St is an impressive set, but they have something notable about them, they have nobody under a 1995 call.

In London, Cloth Fair chambers continues to pick up impressive work. They have four QCs and two senior juniors from 1997 call.

They have no pupils. No junior members of the bar get to learn from John Kelsey-Fry QC.

So there’s a subtle indication that business efficacy requires more senior members of the bar to cast off the more junior members.

Look to our leaders

My worry is that through history and courtesy we remain silent and expect our leaders to protect us.

The question of advocacy assessments looms, the dreaded QASA. Lord Justice Moses showed sympathy for those of us with a criminal practice, Joshua Rozenberg reports:

Young criminal advocates were already the least well paid and the most vilified of those who practised in the courts, Moses pointed out. They would be the guinea pigs while their counterparts in commercial chambers would remain free to sit in court, unassessed, behind a “heavyweight silk boring for England or for Russia”

I know it’s just a nod in our direction, but I’m really grateful that a senior member of the judiciary has recognised our existence. And it’s not only members of the judiciary, some silks have, even a Tory MP, Geoffrey Cox QC.

But we’re about to get to crunch time

Members of the Bar who rely on public funding will need more than just a few friends at the top. The junior members need a champion. And, as of late, I’ve been worried that we don’t have one.

I’ve also secretly worried that the future of the bar might be forgotten for a short reprieve in some respect which advantages senior colleagues.

Can we put our trust in the hands of senior practitioners?I simply don’t know, I hope so. But, with announcements that pupils are useless, and considering the Byrom/Cloth Fair models, what do we do?

Do we take door 1…

And stick to the status quo. There’s a strong argument to do so. All our senior colleagues were in our position at one time. We all know individuals QCs and senior juniors who will stand up for us and for future generations.

We should throw our weight behind the Young Legal Aid Lawyers, our circuit reps and our inns of court reps.

Or, we take door 2

And we decide to look after ourselves. This of course would necessitate more than a little work. The juniors would have to lobby for a position on every Inn and Circuit committee.

We would have to separate off and in terms of negotiation with the LSC and government, we would need to be certain that we have our own representatives.

Pub beer garden advocacy about where our profession is going would need to move from the heat of halogen lamps to board rooms and conference halls.

Trust

I take option 1, let’s trust our leaders. They don’t forget how difficult things can be and I am sure they see us as being of use. Also, there’s individual personalities to consider. A senior Judge has come out in our support, the leader of the South Eastern Circuit has also shown that he cares. We all individually know particular leading barristers who will stand up for us.

Their experience and gravitas is more likely to persuade and protect then if we send a champion who may just be thought of as a petulant child at the dinner table.

However, that said, we need some movement forward. We really cannot spend our time moaning in beer gardens and instead ought to focus.

We do need to stand for more committees. We do need to back each other and vote when a junior junior stands. We need to engage with and enlarge professional bodies such as the Young Legal Aid Lawyers association and Young Barristers’ Committee.

Perhaps we can remind Mr Myerson QC what we at the bottom rungs contribute to the profession.

FTD