Tuesday, 30 April 2013

Convicting the Guilty

It is well known that many (most) criminal barristers are frustrated actors.  This phenomenon can induce an unhelpful inclination towards melodrama.  However nobody should doubt the authenticity of the anxiety and anger of the Bar about its immediate future and that of the criminal justice system.  If the Bar’s worst fears are realised criminal barristers could be on the brink of becoming as much relics of the past as tallow chandlers and hoopers.

It is difficult to get the general public exercised about QASA (Quality Assurance Scheme for Advocates) and PCT (Price Competitive Tendering) although, rightly, they fill barristers with the deepest sense of foreboding.  Part of the difficulty with communicating the Bar’s anxieties is that they are firmly rooted in concerns about fairness and justice which are abstract concepts.  Quality of representation for defendants in criminal trials is not top of most people’s concerns at the moment.

The man on the street might reasonably say to himself that he does not break the law and he won’t end up in the dock therefore what is it to him whether those that do are represented by well-trained advocates of learning, integrity, and principle or slip-shod amateurs overwhelmed by an impossible caseload.  The corrosive damage to society that such a future would entail is difficult to encapsulate and communicate.  If you don’t have a direct stake in the criminal justice system you may not much care, to be frank, whether defendants are getting a fair trial or not.

However, as the tabloid press would be quick to point out, it is not only defendants who have a stake in trials being conducted properly and fairly.  Victims and their friends and relatives have a direct interest in the outcome of the particular cases that affect them and by extension we all have a well-founded general interest in robbers, rapists, swindlers, burglars, and murderers being off the streets.

To ensure that guilty men are properly prosecuted and properly convicted it is essential that the prosecution is properly represented.  At present the vast majority of prosecutions in England and Wales are brought by the Crown Prosecution Service (CPS).  The CPS employs advocates both barristers and solicitors with higher rights of audience in the courts.  However a huge amount of its advocacy (and especially trial advocacy) is still briefed out to the self-employed, independent referral Bar.

An obvious question that is not getting very much exposure at the moment is where the CPS will get its advocates in the future if the self-employed Bar is destroyed by PCT.  Presumably the government plans and has set aside resources for the CPS to engage in an enormous recruitment exercise from the Bar in order that in future all of its prosecution advocacy can be undertaken by its employees.  

The cost of this recruitment exercise will be huge.  All those employed advocates will, like the CPS’s current cadre of employed advocates, have to be paid holiday pay, sick pay, maternity/paternity leave and, of course, their pensions.  At the moment self-employed barristers are responsible for all those costs.
Furthermore, at the moment, if a self-employed barrister shows him or herself unworthy of instruction by the CPS there is a very simple remedy for the CPS which is to stop instructing them.  Anybody with any knowledge of the Civil Service will know that sacking civil servants is a very difficult exercise.  If an advocate becomes dead wood there is a danger they will remain employed in the system for many years.  The independent Bar gives the CPS flexibility in terms of numbers and in terms of quality when it selects which barristers it chooses to instruct.

And it is quality of prosecution advocates that should concern every citizen.  If cases are prosecuted badly guilty men walk free and that should be to the concern of all.