Deal or No Deal. What now?

At the CBA meeting I voted in favour of the ‘deal’.  At that moment, albeit with reservation and hesitation, I thought that was the right decision for the Young Bar.  With the benefit of hindsight I am completely ready to accept I may have been mistaken in that view.  Of one thing I am certain and that is I ought to have sought further opportunity for reflection and consultation.  The ballot now in action is a belated opportunity for that reflection and consultation to take place.  Agreements made at gunpoint are rarely fairly forged.

The way I looked at the ‘deal’ was in terms of a continuum incorporating that which was acceptable, that which was possible and that which was wishful.  It seemed to me at the time that the ‘deal’ was acceptable even if it perhaps fell short of what which was possible.   The wishful position was clear to me and that was an undertaking by the government to tear up its proposed response to the Legal Aid consultation and to reverse the cuts already implemented. 

In explaining my thinking as it was I do not seek to persuade simply to explain my thought processes and to affirm my willingness to listen to the views of those I represent, namely barristers under 10 years’ call, and take account of those others who have justice in their hearts and minds.

There were some obvious questions that came to mind at the time of making the decision: What about VHCCs? Deferment is not withdrawal? What about junior barristers? and What about the solicitors?

To a greater or lesser extent all of these questions are inter-related and I don’t need to be told that the Bar does not exist in a vacuum.  What affects solicitors affects us and, to a greater or lesser extent, vice-versa.

In order therefore starting with VHCCs.  There is no doubt in my mind that the lion’s share of the credit for the progress that has been made lies at the feet of those who walked away from VHCCs; something that they did before they had any way of knowing what the consequence of their sacrifice would be.  Reading the government’s consultation response makes it plain that their unity of action was not anticipated for a second.  The undignified efforts that have been made to find representation betray the desperation within the walls of the Ministry of Justice.  This has culminated, astonishingly, with the BSB launching a consultation seeking to discipline barristers for refusing to retain briefs following unilateral amendment to their contracts.  This consultation has nothing to do with ethics and everything to do with political interference in a supposedly independent regulator.

The reason why I voted to accept the ‘deal’ was that those barristers that considered 30% cuts to VHCCs would, I anticipated, continue to take that view and therefore the representation crisis would continue unabated until market forces dictated a climb down by the government.  I saw then and see now that those trailblazing barristers who walked away from their contracts might regard this as scant reward for their efforts but I saw the ‘deal’ as being a stepping stone to the Bar’s ultimate aim.

In answer to the deferment anxiety my view was that the cumulative effect of the Jeffrey Review; Leveson LJ’s efficiency drive and HH Rivlin QC’s criminal justice ‘think tank’ would point out savings far in excess of what AGFS cuts could provide which would obviate the need for the cuts ever to be implemented.  Furthermore summer 2015, as hardly needs stating, is beyond the next election date.

In relation to anxieties about the junior Bar I was fully aware that this was and is a very vexed concern.  The ‘no returns’ policy is hurting junior barristers; of that there is no question.  However I also acknowledge the considerable force in the argument that with solicitors’ firms reduced in number the amount of work available to junior barristers might diminish very dramatically.  Set against this I had to weigh up a tangible offer that would allow junior criminal barristers to return to full work now.  Heroic sentiments regarding the virtue of death in battle over long term strangulation run the risk of being just that.  The young Bar is my constituency and I count myself among its number: its fate is mine also.

In weighing up what was the right course for the young Bar I had to consider what the response of solicitors would be.  In candour I had anticipated anger.  However I also had a hope which seems to be coming to fruition.  There are many actors intimately involved in the proper functioning of the Criminal Justice System.  Barristers are perhaps the more high profile part of the CJS but solicitors are the source of almost all of our work and are there at the genesis of almost every criminal case.  Solicitors have it as much in their power to bring the government to the negotiating table as the Bar does.

Whenever criminal Legal Aid is subject to negotiation the phrase ‘Divide and Rule’ is not far behind.  However the tactics of 19^th century warfare and diplomacy are far behind us.  Modern battles are fought by guerrillas and in coming to an agreement with barristers only the most short-sighted minister would assume solicitors and, for that matter, probation officers would fall into line.  It seemed to me that the Bar could accept the government’s concession and offer what support it could to solicitors seeking to achieve the same through their own actions.

I was asked to cast a vote in my capacity as a member of the CBA executive.  That is not to say that I don’t have common cause with solicitors and their aims but before adopting them as my own I must understand them and share them.  I don’t support the proliferation of in-house advocacy or the de facto delimiting of client choice of advocate to employees of a firm.  I certainly don’t acknowledge any virtue in or justification for the presence of ‘plea only advocates’ in the Crown Court.

This brings me to the question of whether the wishful can also be the possible and if so how it can be achieved.  Concerted action by solicitors forces concerted action by the Bar because if the solicitors are not briefing cases then barristers are not working.  In that respect I regarded the ‘deal’ as being but one early step in an incremental approach to achieving the aims of all actors within the CJS.  A gradual climb down seemed to me to be more realistic than a forced volte-face by the government on its entire programme.

It would appear that in the turbulent aftermath of the CBA’s announcement that solicitors have been galvanised into taking the initiative.  Though we all strive for justice it would be naïve to pretend that we do not have different agendas and motives, sometimes they are best achieved through common action and sometimes by allowing others to lead the way.

As I have already said I welcome this ballot; I wish I had the courage and presence of mind at the time to demand it but never has the adage better late than never been called to mind.  Unprecedented threats to justice demand hitherto unknown levels of transparency and candour.  Direct democracy is unwieldy and unworkable but when treaties are being signed everyone should be entitled to know.

These are my reasons for voting and thinking in the way that I did.  Only pride would prevent me from admitting that I may have been mistaken and I urge young barristers or anyone else who cares for justice to tell me if I was: max.hardy@9bedfordrow.co.uk

How to prosecute a rapist

Since the Ministry of Justice announced swingeing and devastating cuts to the criminal Legal Aid budget I have met with ministers, judges and leaders of the profession and a constant refrain of mine has been: ‘And what about the prosecutors?’

This may seem a more remote concern when many criminal defence lawyers are about to lose their livelihoods.  In the case of solicitors this may be due to firms simply shutting up shop or withdrawing from criminal work.  In the case of the criminal Bar this may be due to the collapse of further barristers’ chambers in the aftermath of the closure of Tooks or from barristers individually making the painful decision that they simply cannot make a living from practising criminal law.

Ministers are on the record as saying that there are too many barristers although they have declined to identify how many should go, or who should go or what an appropriate number of criminal barristers is.  Whether there are ‘too many’ barristers is not the subject of this post.  Where the prosecutors of the future will come from and how they will be trained very much is.

England & Wales is an unusual jurisdiction in that the majority of criminal trials are prosecuted by self-employed agents and not by lawyers employed by the state.  Under the Directorship of Lord Macdonald the Crown Prosecution Service sought some years ago to increase the amount of prosecution work conducted in-house by employed advocates, whether barristers or solicitors.  The recruitment drive that followed resulted in less prosecution work being briefed out to the independent, self-employed referral Bar nonetheless a great percentage of trials did and continue to be prosecuted by external counsel.

However the expansion of in-house advocacy at the CPS has undergone a hiatus with cuts to its budget and, perhaps, the realisation that use of the self-employed Bar is actually highly desirable for two reasons: flexibility and cost.  An employed advocate is an expensive cost if he or she is not conducting advocacy and a problem with the criminal justice system is that the length of trials and the intentions of defendants regarding their pleas are hugely unpredictable.  If an employed advocate is tied up with prosecuting a trial of an undeterminable length then he or she can’t be used to conduct plea hearings or other shorter and more predictable hearings.  Consequently the Bar often continues to prosecute trials and CPS advocates, in the main, prosecute other hearings with some trial work included.

If the CPS wants to use a barrister from the self-employed Bar it simply instructs a barrister for the duration of a particular case.  If the barrister conducts the case poorly then he or she can expect to receive no further instructions in the future.  The CPS can use the barrister as and when it wants.  If the CPS employs an advocate it has to use that advocate all the time as long as the advocate’s contract subsists.  Secondly if the CPS employs advocates then it must train them too.  The traditional mechanism by which advocates are trained in England, pupillage, is very labour intensive for the person providing the training as the trainee barrister spends all day every day with them learning the trade.  The barrister providing the training does not get paid for this.  When the CPS employs a barrister from the independent, self-employed referral Bar it gets for free the benefit of the training provided to that barrister at the start of his career.  If the Bar stops recruiting pupil barristers because it can no longer afford to or because there is no prospect of the embryonic barrister building a practice then the specialist and intensive training conferred by pupillage in chambers simply will not happen.

If the contraction of the criminal bar is unplanned, unfocussed and disordered then there is a very real danger that the next generation of prosecutors of serious offences will not benefit from the training of their predecessors.  When corporations or the Civil Service plan redundancies account is taken of their business needs and appropriate candidates for redundancy are carefully identified.  With a self-employed profession like the criminal Bar if barristers simply walk away from the criminal justice system there is no mechanism to ensure that the best remain to pass on their skills to the next generation. 

A member of the public would be forgiven for thinking that almost nothing other than sexual offences come to trial in England.  This misconception is engendered by the media’s obsession with reporting sex cases, particularly involving celebrities.  Understandably and reasonably the prosecution of sexual offences provokes strong feelings.  These are often cases of the utmost seriousness where profound psychological damage has been inflicted on victims, many of whom are often the most vulnerable in society such as children.

However the reporting of these cases is often inaccurate with a focus on salacious details rather than a fair account of proceedings.  Sometimes, although mercifully rarely, things go wrong and a huge amount of negative coverage ensues.  Witnesses are very occasionally subjected to needlessly aggressive questioning in court.  However there is almost never media reporting of skilful or sensitive handling of witnesses where justice is achieved against the odds in difficult or traumatic circumstances.  It goes without saying that a child witness or victim of a sexual offence requires tremendous care and their wellbeing must at all times be balanced with the need to maintain the integrity of the trial process.  This places a huge burden on prosecutors and defence advocates alike.

If advocates in sexual offence cases do not possess significant intellectual and emotional intelligence the examination of witnesses can be a painful process.  If advocates are inadequately trained and prepared their questioning is likely to be clumsy and ill-considered at best and downright harmful at worst.

Every barrister that ever practised has faced the enquiry: ‘How do you defend someone when you know they’re guilty?’ I have never heard nor do I imagine has the question ever been asked: ‘How do you prosecute someone when you know they’re guilty?’ It would ostensibly be a very foolish enquiry.  After all the mere fact of the prosecution should indicate that the prosecutor takes the view that the defendant is guilty otherwise why prosecute him.  Any decent prosecutor is keenly concerned in the outcome of a criminal trial, rarely more so than in a sex case.  Prosecutors are trained to present an implacable and professional façade at all times but do not be misled into thinking acquittals are greeted with indifference.  These cases exact a heavy emotional toll and need to be conducted by advocates of the utmost professionalism.

This post is not intended as an advocacy training manual.  It would be presumptuous of me to offer advice when the Bar is full of advocates hugely more experienced and skilled than I am.  But I do venture this answer to the title ‘How to prosecute a rapist’ and it is with extreme care and professionalism.  As a hardworking taxpayer you are entitled to expect nothing less than this; it is within your power to demand that the prosecutors of the future are properly trained and drawn from the ranks of the most intellectually and emotionally able.  The independence of mind and judgement that is the soul of the self-employed Bar is integral to this and without proper funding that independence will be snuffed out.