Posts Tagged ‘Pupillage’

Two days ago the CPS inspectorate announced that there was a quality gap between the advocacy skills of the CPS lawyers compared to those in private practice. In the Magistrates’ Court one of the areas which needs to be improved is cross examination.

I’m sorry, cross examination? For non-lawyers, cross examination is where one asks questions of the other side’s witnesses. So for your average CPS Mags’ Court prosecutor, asking the Defendant questions.

I’m sorry, but, cross examination, although an art at the higher end of things, is a pretty rudimentary skill in the Magistrates. If there’s a problem there, then there’s real problems.

When I was first on my feet I never thought that I outgunned the local CPS. Things balanced out, yes they were busy and had less preparation time, but I was green and still learning.

Now?

Frightening

I’ve been back in the Magistrates’ Court for two days this week. For two trials. I won both. Not because I wear a wig for a living, not because I went to Oxford, not because I’m sneaky, not because I’m lucky, not because of anything to do with me… (and worse, not necessarily due to the evidence!)

…but with them.

During both trials, the CPS in-house Prosecutor sent texts on their iPhone.

Neither brought a practitioner text into Court.

And neither had any recent authorities at their mental or physical fingertips.

In the first trial a lay bench had to explain the meaning of hearsay to the prosecutor as she continually attempted to adduce it, to the extent that the Chair of the Bench had to stop a witness and bark – ‘no, we’re not allowed to hear it.’

And today, during my half-time submission the announcement from the Prosecutor which left everyone in Court stunned, ‘this isn’t the Crown Court, you don’t have to prove all the elements of the offence.’ The Legal Advisor, stood up and advised the Magistrates immediately that they must ignore what she said, the Magistrates were in shock and much to my pleasant surprise, the Chair of the Bench announced – ‘it’s the same offence here as in the Crown Court, you still have to make us sure, and you have to make us sure of  all the elements of the offence – the rules of evidence still apply.’

The first 6 pupil I have had with me to learn about the Magistrates’ Court cannot believe what he’s seeing and asked me if it’s always like this.

No, it’s not always been like this…

The reality is with money being cut the CPS have fewer available staff and have a much smaller budget for bringing in barristers.

The CPS extradition unit is Rolls Royce, all the lawyers are very good and are well resourced. My experience too of the terrorism team and the mass public disorder guys are the same.

But of course extradition is high profile and potentially has diplomatic impact. And, big scale public order offences are heavily featured in the media.

Yet, the reality is for man or woman on the street that they are not going to be involved in that type of case. They are going to have seen a shoplifting, or be a victim in a pub brawl, they will rely on the in-house CPS advocate.

And the reality is? Lawyers who joined the CPS to litigate, not advocate, have been sent out to the Magistrates. The experienced lawyers in the Magistrates’ Court are being promoted into management roles and away from the Courts. Or, those experienced lawyers are being forced into taking their Higher Rights and being made to process high volume hearings in the Crown Court.

And they’re being expected to do more. They’ll soon have to prosecute everything for the UKBA, they’ve already had to take in all the Revenue and Customs Prosecutions.

So, actually, I think they’re being expected to do a lot, too much.

And can they attract the talent? When I was coming to the Bar, the CPS were offering pupillage, it paid more than I would have got at the independent bar, would have given me a pension and better working conditions. Experienced barristers too were being brought in, offered decent salaries and a pension and a better work life balance, but that has ended too.

The solution?

Certainly not throwing more and more abuse at the CPS. And not throwing more cases at them!

1) Give power back to the prosecutor. Barristers with 20 or 30 years experience are no longer in control of cases. The specialist advocate before she makes a decision has to phone the CPS office and ask permission to do things. That advocate commands the fee (which is still, not great) that they do because of their speciality, give them the power back.

2) Get real(istic). Just because a case involves a domestic element, or a racial element does not mean it automatically has to be prosecuted. There’s a strong public interest in prosecuting these offences, but it doesn’t mean there’s strong enough evidence. Far too many cases come to court which have no hope of success.

3) Go it alone. The Government need to butt out of prosecuting as do the police. The DPP is not a member of the cabinet, he is not an MP. He is a civil servant and like other civil servants he ought to be able to enjoy the independence of the civil service. Cut the KPIs. As too, should the police realise they are not instructing the CPS. The opposite. Police officers should not be able to ‘appeal’ the decisions of prosecutors. Officers-in-charge of cases are not lawyers, they do not know better than the CPS, they should not be able to apply pressure for them to take a certain course.

Justice gap

A gap in quality of advocacy causes a risk of a gap in justice. I don’t want to win cases simply because my opponent is a shattered individual who never wanted to be an advocate.

The CPS are not bad lawyersfar from it. But they are lawyers who are being expected to do jobs they never wanted to do, or were trained to do. Now, they’ll be prosecuting in higher courts, with new offences they have no experience of.

Do what the private prosecutors do (RSPCA, local authorities etc) focus prosecutions, really review them and properly fund them. Don’t push prosecutions through because it’ll win political points, even if it doesn’t win cases.

My view will always be, it’s better that 100 guilty people go free than 1 innocent person is imprisoned.

The view of the prosecutor should be, it’s better to let 20 s.5/drunk and disorder cases go unprosecuted than a serious assault/burglary collapse for want of resources.

FTD

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 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.

 

There are still days when I wonder if I want to be a barrister. I think that’s healthy. If I didn’t question my own professional worth then I’d let ego or destiny take over.

Ego is easy to give in to. There are moments of sheer glory in your wig. Heart stopping moments when a jury announces a not guilty verdict; when your opponent agrees a consent order; where a parole board releases your client. There are moments when people who you hardly know will throw their arms around you; grown men will cry; people will come up and shake your hand congratulating you for a wonderful performance.

It can be like a drug. After all there’s no doubt that we have adrenalin rush moments.

Can you keep a balance between ego and self-confidence? If ego takes over then you will lose professional perspective. If you lose all self-confidence then you’ll lose the confidence of your client, professional and public.

‘Silk-Cut’ , my mentor, is going to be a QC. He’s brilliant, the legal professional press says so. Clients, professional and public, love him. But even he has moments of doubt, gloom for the future.

But he will always tell aspirant barristers if you want it, if you can do it, you will.

Do you want it?

I won’t bore any of you with the statistics. Becoming a barrister is hard. There are more potential pupils then there are pupillages. There are fewer tenancies than there are pupils. The numbers indicate you’re taking a hard route.

But for the moments I mentioned above it is worth it. If I get a result for a client, I imagine it is the same feeling a doctor gets when he cures a patient.

But, the first thing you must remember is not all patients pull through.

Dead on arrival

Some cases that land in your pigeon hole are dead on arrival. The client has no defence or can not make a claim. Can you accept that? Can you accept that no matter what you do you are bound to fail?

For those going toward criminal types of work, the acquittal rate in the Magistrates’ Court is low. In extradition, I have no idea what the discharge rate is  for European Arrest Warrants but I imagine it is very low.

In immigration, asylum is regularly refused from people who come from countries which we cannot imagine living in.

Brave people are given a cold shoulder by the dispassionate law.

Sleep at night

You have to be able to switch off. I lose sleep before big cases, I dream about trials that will never happen. But after a case, I can generally switch off as if I didn’t I’d never be able to focus on the now and the next case.

So, you have to be in one sense as dispassionate as the law is and on the other hand show your client that you care enough to listen to their story.

Mercenary not miracle worker

Barristers especially get described as being mercenaries, going into battle to fight for a client for money. Factually that’s right, but we’re humans too, honestly.

I remember being in a conference room in my old chambers, one of my first cases which really required proper weeks and months of preparation. My client was a 12 year old boy, who was in tears, who didn’t really understand what was happening. His mother was full of anger and hurt. His solicitor full of outrage that things had got so far. I wanted to take that 12 year old boy home, I wanted to go to his school and sort things out. I couldn’t, it’s not my job. I got that boy the result he needed. But that doesn’t mean I’ve solved all his problems, it doesn’t mean that I’ve saved his life.

If you’re a barrister you cannot cure a person of their drugs problem. You cannot take an abused child away from their parent. You can’t erase their past. You can only help mould a moment of their future.

If you want to be a barrister you have to accept that you won’t be able to do everything for everyone.

It’s a rare case that changes the world

A rare case indeed, that would change the world. But some do. So it’s from one extreme to another. At this stage in my career I doubt I’ll ever be potent enough, clever enough, persuasive enough to hold on to a case which can change the world. There are people in my chambers who have had such cases, real moments in British history. I have unlimited respect for them.

Could you ever be strong enough to shoulder that kind of case? And, if you did, could you remember that the case never really belongs to you but to your solicitor and lay client?

Extreme

You know if you want to be a barrister that hours will be long. You know that your finances will be tough. You know you’ll go from ecstasy to agony in the same month, week, sometimes even day.

You can be the golden boy one day and the next you can be out of favour.

Barristers drink too much. Barrister smoke too much. Some eat too much. Some eat too little. Some trade children for fulfilling professional potential. Some can balance everything, never really having a moment for themselves.

Some change history. Some do little more than earn an average living.

Can you?

Risk several years of your life on your wig? By the time you add it all together it’s a decade long commitment to really give it a go from start to early finish.

You might be spat at.

You might be screamed at and insulted. There have been moments when I have walked across a court foyer with everyone’s eyes on me full of hate or distrust. Shoulders back, head up.

You might be dropped by a solicitor for a single tactical choice that you’d still stick to. You might be dropped by chambers because you forgot to shine your shoes one morning. You might not get pupillage because you answered a single question in a way which the panel didn’t quite like.

Do I still want to be a barrister

I still love my job. If I stop loving it I will do something else.

Tick box exercise

If you’re not sure about being a barrister then please don’t take the risk.

Once you’ve ticked all the boxes

x Don’t mind job insecurity

x Don’t mind financial insecurity

x Don’t mind long hours

x Like travel

x Like the public

x Like the law

Then tick a final box. Can you adopt the mentality of a barrister?

FTD