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.
