Friday, 10 January 2014

What criminal barristers do and what they don't

Aspiring criminal barristers have to want to expose themselves every day to the public scrutiny of judges and juries and that exposure can, sometimes, feel relentless and remorseless.  However the best barristers know that a willingness to speak out in a courtroom should not be confused with an enthusiasm for speaking out on more public stages.  Self-promotion on television and radio is something most barristers instinctively recoil from.  Historically barristers weren’t even permitted business cards so repugnant was the notion of publicity and so inimical it was considered to be to the role of barristers within the criminal justice system.

A consequence of this legacy is that barristers often conduct their work away from the public eye.  Unless you have been a juror, a witness or, heaven forbid, a defendant it is highly unlikely that you have ever stepped into a courtroom.  As a result of that your understanding of the workings of the criminal courts will depend entirely on what you have seen on screen, read in print or learnt from talking to others.
Rumpole, Kavanagh Q.C., Judge John Deed and Silk are not real.  However much television strives for verisimilitude these programmes are entertainment and only entertainment.  Painful though it is to acknowledge so too is the vast majority of media reporting of criminal cases. 

This article from the New Statesman sets out the lamentable reality of court reporting in the 21st century.  We all know never to believe anything we read in the newspapers but the temptation when reading reports outside our immediate sphere of knowledge is to do just that.  The public interest test applied by the media is whether something is interesting to the public.  This usually means sex, celebrity and scandal.  Every day thousands of cases involving ordinary people caught up in difficult or terrible circumstances are prosecuted and defended diligently and properly.  You know nothing about them because you don’t see them or hear of them.

All any criminal barrister can ask before you take a view on whether the criminal Bar is of benefit to society and is an institution worth funding accordingly is that you ensure that your view is informed.  An informed view is one that is founded on evidence not supposition, not speculation and not entertainment.

I venture to list here what independent, self-employed criminal barristers do and what they don’t.

Criminal barristers do:

-          Provide independent legal advice
-          Owe a paramount duty to the court
-          Public speaking almost every single day against opponents
-          Receive fees determined by the government in legal aid cases
-          Work to very short deadlines, often overnight
-          Travel long distances on an unpredictable basis
-          Miss funerals, weddings & family events because of court commitments
-          Pay for professional insurance, professional memberships, and an annual practising certificate fee
-          Pay up to 25% income to their chambers (offices) for rent and administrative support
-          Incur enormous debts during higher education & professional training (up to £60,000)
-          Have to pay for a wig (£560) & gown (£149)
-          Pay for Archbold Criminal Pleading & Practice (2014 £475) – every year
-          Pay for and undertake Continuing Professional Development every year
-          Appear in the most difficult, stressful, high profile and emotionally charged cases that come before the courts
-          Undertake large amounts of pro bono (for free) work
-          Provide, for free, hours of advocacy and legal training

Criminal barristers don’t:

-          Lie to the court
-          Invent defences
-          Force defendants to plead not guilty
-          Receive salaries 
-          Receive paid leave, sick pay, maternity/paternity pay
-          Receive pensions
-          Keep VAT which they are obliged to charge on their fees
-          Pull ‘sickies’- ever
-          Work 9-5
-          Know how much they will earn in any given year
-          Insult witnesses and needlessly cause them distress
-          Allow financial and other considerations to subvert their duty to their client
-          Hesitate to give robust, frank and sometimes unwelcome advice whether to the Crown Prosecution Service or to defendants
-          Have tickets for a ‘legal aid gravy train’
-          Expect gratitude or praise from the public but some small acknowledgement of their services would be welcome

Friday, 3 January 2014

Justice's blindfold slips

In the morning of Monday 6th January 2014 Justice’s blindfold will slip from her eyes and gag her mouth.  Courts up and down the land will fall silent in an unprecedented display of unity by barristers.  It is an action that provokes sadness and dismay within the ranks of the Bar offending, as it does, against the core ethos of the Bar that justice must be done.  That it has come to this seems to some incredible.

The Government, in the form of our Lord Chancellor, Chris Grayling MP (entitled to an annual emolument of £227,736 and an annual pension of £106,868) and his Ministry of Justice would have you believe that this walkout is the desperate action of ‘fat cat’ lawyers intent on fleecing ‘hardworking taxpayers’ by clinging aboard the ‘legal aid gravy train’. If you believe this then you are deceived.

The reality is that the criminal Bar is in crisis. Chambers cannot afford to recruit pupil barristers and even the vanishingly few that make it through the net are finding that they have joined a profession where they have little hope of paying off the mountainous debts accumulated in study and qualification.

To the thoughtless we are leeches and parasites coercing criminals into pleading not guilty simply to line our pockets.  There are those within the ranks of the Bar who feel that we have been na├»ve in failing to communicate our ‘brand’ to the media, politicians and the public.  However it seems preposterous to suggest that doctors should have to pay publicists to explain why curing children of cancer is important or that firemen should employ PR companies to spread the message that extinguishing fires is in the public good.  So it should be for what we work at every day.

When young barristers are called to the Bar they join a profession that is a vocation: it is not just a job. There is no mission statement for barristers beyond pursuing the ends of justice.  There are no key performance indicators beyond right being done.  If it sounds fogishly high minded for our cut price, cynical times that may be but when your daughter’s rapist is in the dock you want a prosecutor of integrity, intellect and determination.  Equally when your son is wrongly prosecuted for defending himself in the street you want him defended by a fearless advocate intent on holding the state to account; not an amateur preoccupied by impossible mortgage repayments and debts.

Fairness is a paradox because you can’t see it but you also can’t feel its absence too much.  Almost the first thing children learn as toddlers is the expression ‘It’s not fair.’  Barristers strive at and for fairness.  This country has a proud tradition of abhorrence for institutional injustice.  Consider the media reaction, and your own, to the Birmingham Six, the Hillsborough cover up and the Mid Staffordshire hospital failings.  Barristers were and are instrumental in exposing that kind of injustice.

Criminal barristers do not demand or expect riches for the work they do but they do demand to be paid properly for difficult, sensitive and often extremely stressful work.  If professionals are not paid fairly for their work their work will not be performed professionally.  Soon after there will be no professionals to perform that work.  Justice, society and you cannot afford for that to happen and that is why the wheels of justice will stop turning on Monday morning.