Next Steps consultation response of Max Hardy

9 Bedford Row

London WC1R 4AZ

 

     1^st November 2013

 

Dear Lord Chancellor

 

I hope you will forgive me if this response to the consultation paper does not engage much with the detail.  This is because a condemned man does not have much appetite for scrutinising the small print of his death warrant.

Not being a lawyer yourself it may be that when you took office you were wryly amused by barristers’ instinct towards melodrama and theatricality.  And it is certainly true that the coming death of the Bar has been predicted over many years.

And if it is your supposition that the Bar will soldier on in one form or another regardless of the savage cuts that you propose then you are probably right.  However it will not be populated by barristers worthy of the name.  The public may believe that it will be business as usual but they will be wrong.  We are at the tipping point beyond which miscarriages of justice will proliferate.

There is a real willingness and resolve on the part of the Bar to take action that will make it abundantly clear to the Government and the public that we can’t go on like this.  Every barrister owes a duty to the court and to his client.  However the duty owed to the course of justice eclipses all others and if the Bar becomes unable to facilitate the course of justice then the only proper course is for the Bar to withdraw its services.

The Bar is not blind to the financial exigencies of the situation or the extreme pressure being brought to bear on you to reduce the Ministry of Justice’s expenditure.  It is however disappointing in the extreme that you propose enormous reductions to the livelihoods of those that work in your Ministry’s name that you do not lead by example and pledge an equivalent percentage of your salary and pension to the Treasury.  I ask, as a demonstration of your good faith that we are all in this together, that you do so.

Your view is that the Bar must shrink.  You do not explain why that must happen.  You do not explain which are those barristers that must seek employment elsewhere.  You do not explain what criteria should determine who it is that should leave the Bar.

The reality is that the first to leave the Bar will be the last to join it.  Pupils and junior tenants with debts, that you as a young man could not even have conceived of, will realise that there is simply no way for them to earn a living at the criminal Bar and they will leave.  Judges and QCs of the future will be cut off at source.

The only entrants to the criminal Bar in the future will be the idle rich joining the Bar as a hobby.  You well know that the Bar of 2013 is a hugely more diverse profession socially and ethnically than that of just a few decades ago.  The more that has happened the more legitimately the Bar, and your Ministry, can claim that the criminal justice system reflects the society it exists to serve.  It is astonishing that in 2013 there is only female member of the highest court in the land.  The cuts that you propose will ensure that no progress at all will be made towards improving that balance.

The Bar has already submitted to years of relentless cuts.  There is no scope or tolerance for more.

Please listen to the warnings from those that know and care and turn back.

Yours sincerely

Max Hardy, Barrister

My response to the Ministry of Justice's damnable consultation.

Dear Lord Chancellor

This is my response to the Ministry of Justice’s ‘Transforming legal aid: delivering a more credible and efficient system’ consultation’.

If you implement the MoJ’s proposals you will certainly succeed in ‘transforming’ legal aid.  You will do this by devastating it as a proud symbol of civilisation and fairness in this country.

Your ministry has been challenged since the consultation was launched to point to the evidence substantiating the suggestion that the criminal justice system is not at the moment ‘credible’.  Notably it has failed to do anything of the sort.  In fact your proposals will, probably irrevocably, diminish the system’s credibility.

At the 2012 London Olympics the world was reminded of Britain’s greatest and proudest achievement of the post-War period that being the NHS.  Thoughtful people recognise that almost on a parity with the inception of the NHS was the creation of a system of legal aid that meant that all defendants in criminal proceedings in this country were not only properly prosecuted but vigorously and competently defended.

If you were arrested and prosecuted for a crime that you did not commit I would bet the roof over my head that you would want to be tried in this country over any other in the world.  Indeed your ministry has embarked on an energetic campaign to encourage forum shopping by litigants around the world in the hope that they will choose London to resolve their legal disputes.

The only reason why Russians and others would choose to litigate in London is because they recognise that this is a country with respect for the Rule of Law.  Judges are impartial and litigants, whoever they and however deep their pockets, are guaranteed equality before the law.  If the criminal justice system is sold down the river to the lowest bidder Britain’s reputation as a bastion of fairness will be profoundly diminished.

Jury trial has always been a fundamental cornerstone of the philosophy that underpins the Conservative Party.  I am sure that you recognise a jury trial is only as fair as the quality of the advocates undertaking it.  With that in mind it is baffling that your ministry is proposing to deny quality advocates from those who need them most.

Rich man’s justice is nobody’s justice and justice is either properly executed or not at all.  PCT will be a catastrophe for the criminal justice system.  PCT will be a catastrophe for Britain and its standing in the world.  Lastly PCT will be a catastrophe for your legacy as Lord Chancellor and government minister.

Please do not do this.

Yours sincerely

Max Hardy

9 Bedford Row, Chambers of Anthony Berry QC

 

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.  

A rose by any other name does NOT smell as sweet...

A widely recognised virtue of the internet is the demystification of specialist knowledge.  Doctors must sigh when their patients turn up clutching sheaths of Wikipedia printouts but the truth is that access to knowledge is power to the people.  When your slippery mechanic rips you off you can look at his invoice and look up the cost of that work on the internet, you can even watch somebody carrying that work out for you to check that he really has replaced your Big End (whatever that is).

Before the advent of the internet some inquisitive old lags would take the trouble in the prison library of looking up law in the (hugely expensive) books that barristers used to have carry around like bricks.  Archbold Criminal Pleading & Practice remains the barristers’ book of choice in the Crown Courts; mercifully it is now available electronically, although it is still hugely expensive (£455).  You always knew that when your client referred to ‘Archibald’ that some DIY legal research had taken place, sometimes it was well focussed, more often not.

Today however there is a plethora of free legal resources available on the internet and any client who cares to can check the legal basis for their barrister’s advice.  And a good thing too.  However the internet has its limitations.  Caselaw and databases won’t tell anyone whether their advocate is any good on their feet or not.

If you’re sitting in the dock wrongly accused of murder the internet is not going to tell you whether your advocate can do the business.  Most defendants don’t find out whether their brief will cut the mustard until their trial.  Even then they have little opportunity to assess that advocate’s quality relative to his peers and competitors.  Only when a defendant has been around the block a few times can they weigh up one advocate against another.

Even the Crown Prosecution Service has no real mechanism to weigh up the virtues of one advocate against another.  An enormous grading exercise took place a few years ago but it involved filling in forms.  If you want to know how good your doctor is do you want to see how well he has filled in a form?  The purpose of advocates is advocacy and this is an oral skill and art.  If you never see an advocate in court you will never know that advocate’s worth.

Short of spending your life sitting at the back of court there has to be another way of knowing whether your advocate is Carman QC reincarnated or some washed up no hoper.  You have to trust in your advocate’s experience and his training.  Experience is hard to measure but training is at least susceptible to scrutiny.

The way barristers have traditionally been trained is comparable to an old fashioned apprenticeship.  A newcomer to a barristers’ chambers is a pupil.  They are assigned a pupil supervisor.  They spend 6 months at that supervisor’s elbow watching, learning and writing.  Pupils spend a great deal of time engaged in legal research and in drafting submissions, speeches and summaries.

Only after 6 months is that barrister entrusted to appear in court.  The chambers’ clerks will carefully ensure that no case is taken by the fledgling pupil barrister that is beyond their competence.  The Code of Conduct that governs barristers obviously requires barristers not to take cases that are beyond them but the clerks are a very important filter that ensures in practice that never happens.

The quality of a barrister’s chambers is determined and exemplified by the quality of its barristers not by its profits.  Barristers’ chambers are not profit making businesses and the vast majority of barristers are self-employed.  Good solicitors know who the good barristers are and in reality their selection of a barrister determines a defendant’s selection of barrister.  If a barrister is no good or becomes no good then the solicitor is free not to use them.

Advocates employed by a firm get paid a salary.  They have a boss.  They are expected to help their boss and firm make a profit.  If they are not in court they are not making a profit.  Time spent in training is money wasted.  If they are involved in an unprofitable case they and their employer will want to bring it to an end as soon as possible.   When the time comes to select an advocate if one outside the firm is selected profit goes out of the firm.  If an advocate employed by the firm is not very good the defendant will never know or will only find out too late in the day to do anything about it.

If quality is your concern then there are compelling arguments in favour of not making advocates employees.  Ultimately every self-employed barrister is answerable to him or herself for his or her conduct.  If your barrister screws up you sue him not his chambers.  Self-employment is an excellent guarantor of quality and of probity because there is no corporate wall to hide behind if a barrister’s conduct comes under scrutiny.  When a self-employed barrister makes a decision in a case that is because he believes that is the best decision to make on the client’s behalf, not his boss’s behalf or his firm’s behalf.

There is, however, no place for sanctimony.  Barristers do not have an exclusive claim on integrity or quality and are as prone as anybody to wrongdoing or sharp practice.  That being acknowledged employed advocates are subject to pressures that the self-employed are not in the conduct of their cases.  If you’re on trial you would do well to know what those pressures are.

What is the unsuspecting punter to do? First you may want to ask your advocate for details of all like cases that they have previously been involved in.  You may want to find out how regularly their previous clients have pleaded guilty.  You may want to ask if they are on a salary.  If you are a recipient of legal aid you may want to find out how much the case is worth if you plead guilty and how much it is worth if you contest the trial.

Of course if you are never accused of a crime you will never have a chance to ask those questions.  Do not think however that the answers are of no concern to you.  Those questions lie at the heart of the proper functioning of our criminal justice system and we all have a stake in that not just criminals.

Just because the man standing in front of you in court is wearing a wig does not mean that he knows what he is doing and not all advocates are equal.

Justice MUST be seen to be done.

Famously the statue of Justice that pinnacles the rotunda of the Old Bailey wears no blindfold.  One explanation for this is that she embodies the need for justice to be seen to be done.  One of the tragedies of 21^st century life is that justice is less and less being seen to be done and to describe this as a tragedy is no overstatement.

Before radio, before film and television the Assizes represented a major opportunity for public spectacle.  Victorian engravings and paintings of courtroom proceedings depict courts packed to the gunwales with spectators.  Any modern barrister will tell you that save for very high profile cases their craft is executed in echoing rooms with only the occasional occupant of the public gallery attracting suspicion on the part of court staff.  It is not to salve the ego of barristers that I bemoan this state of affairs: after all the jury is always there as a captive audience and so too the careworn judge.

What this means is that fewer and fewer people in contemporary Britain have any idea of what actually goes on in a criminal court.  The attendant danger is that the salacious reporting of cases in the media leads people to think they know what goes on.  Unless you have undertaken jury service the chances are you don’t actually even know what a criminal court looks like.  Television rarely reflects that the vast majority of criminal trials take place in airless and often windowless rooms far removed from the grandeur of the Old Bailey.

The reason why Justice requires an allegorical personification as severe maiden with her scales for balance and her sword for condign punishment is that Justice is only a concept.  It is performative and if nobody sees it being performed nobody sees whether the scales are balanced or if the sword falls in the right place.

Reading the newspapers and listening to the radio will never be the same thing as sitting in a criminal trial ensuring that not only is justice being done but that it is seen to be done.  A compelling case can be assembled for including a visit to a criminal court within the school curriculum.  What is the point of teaching pupils about citizenship if they are not given the opportunity to bear witness to the most important civic responsibility of all; namely sitting in judgement with and on your peers.

Barristers toiling in the trenches of the courts are inclined to assume the Government is completely indifferent to the cause of justice.  In the thick of the Criminal Justice System (CJS) such cynicism and world weariness is forgivable.  However it may be that ministers and politicians, like so many, have simply never seen justice being done and therefore don’t know what upholding justice entails.

A popular perception is that the CJS is already a lost cause and that everybody involved is on the make or on the side of the criminals.  This is wrong and it is dangerous.  If you incline towards this view sit in your local Crown Court and you will see advocates doing their best within an imperfect system.  Very much more often than not justice is achieved: often against the odds.

The achievement of Justice can sometimes be hard to perceive or acknowledge.  Injustice is so often what attracts the headlines and one of the ironies of the degradation of the CJS within this country is that British people have a well-established abhorrence of injustice.  If people only knew how important a well-functioning CJS is to the realisation of just outcomes they might take a very much keener interest in how it is administered, funded and maintained.  It is perhaps too much to hope that laymen will take such an interest but not that they might at least once in their lives see a court doing justice.  

Because if you don’t know what justice looks like you won’t know when it’s gone.