Legal blogging is an arduous business. Turn your back for two minutes and such
a succession of events occurs that even the thought of mustering the time and
energy to comment on them induces paralysing lethargy. That being said the passage of time
permits a wider view to be taken and a joining of the dots.
Since last I posted many things have happened both great and
small some of seeming significance and some of actual significance. Most of them have a bearing on the
theme for the year of the Young Barristers’ Committee and of its Conference on
18th October (tickets here: http://thebarcouncil.sym-online.com/YBC14/):
Justice in Jeopardy.
In no particular order the events I have in mind are: loss
of catering facilities in Crown Courts; International Weekend; Leveson and
Rivlin; creation of a ‘Victims’ Information Service’; Conservative proposals
regarding the Human Rights Act; prison suicides; and the Opening of the Legal
Year.
I recently returned to practice in chambers following a six
month secondment at the Financial Conduct Authority. Like almost all junior criminal barristers I have been
seeking to diversify my practice away from total reliance on courtroom based
advocacy work. This is simple
common sense in a world where there is less and less traditional criminal work
coming to the Criminal Bar. It
also allowed me to attend to a number of duties arising out of my work for the
Young Barristers’ Committee. These
duties include meetings with ministers and the senior judiciary ensuring that
the Young Bar is heard.
It is hard to describe the sense of dislocation wrought by a
move from the 26th floor of Canary Wharf’s gleaming tower to my 18th
century basement room in Bedford Row.
Far more than Westminster Canary Wharf feels like the power in the land
and it is not just the address of the Ministry of Justice that makes it seem
small by comparison. My perception
from my brief stint with the FCA is that it is an organisation that functions
and it functions because it is properly funded. I hope it is not controversial to observe though that it is
not just bankers that require or deserve justice.
What more telling contrast then could be imagined than
arriving for my first day back at St Albans Crown Court to find that the
canteen had closed and that catering facilities had been quietly and
unceremoniously withdrawn from courts up and down the land. I’m not aware of any full explanation
for the circumstances behind this development but whatever the details the fact
is that this is indicative of failure.
The Ministry of Justice is not capable, it would seem, of running a
functioning catering contract. If
the supply of sandwiches at court can’t be guaranteed what other, perhaps more
essential supplies, are being jeopardised?
It was thoughts like that which preyed heavily on my mind
during the events of International Weekend annually organised by the Junior
Lawyers’ Division of the Law Society with input from the Young Barristers’
Committee. It was commendable that
Andrew Caplen, President of the Law Society, addressed the assembled young
lawyers drawn from across Europe and beyond about how the Rule of Law is only
preserved if there is Access to Justice.
How apt it was that his address was followed by Sir Robert Worcester
setting out the celebrations for the 800th anniversary of the
sealing of Magna Carta next year.
It has taken 800 years of hard fought progress won by death, blood and
endless endeavour that we can enjoy the freedoms and rights preserved by the
Rule of Law today. Constant
watchfulness is required to ensure that those freedoms are not lost, diminished
or eroded. Mr Caplen’s note of
caution was echoed in the anxieties of William C. Hubbard President of the
American Bar Association speaking about a country where Access to Justice can
be even more impeded than it is here.
Two extremely important reviews taking place at the moment
are being chaired by Lord Justice Leveson at the behest of the Lord Chief
Justice and His Honour Geoffrey Rivlin QC at the invitation of the Bar
Council. The proposals made by
these two wise and experienced men have the potential to radically reform the
working practices of the criminal justice system and the lawyers that
administer it. These could be
changes of real substance increasing efficiency, reducing waste with
significant savings for the Ministry of Justice and hard pressed lawyers
desperately trying to make a living from publically funded criminal work.
Change of substance is to be welcomed and worked at; window
dressing by contrast is a deplorable waste of time and money and I for one met
the announcement of the creation of a Victims’ Information Service with a heavy
heart last month: http://www.theguardian.com/law/2014/sep/14/chris-grayling-victims-rights-law.
Anybody with any knowledge of the criminal justice system will know that there
is already in place the Witness Service that attends to the needs of all witnesses
whether for the prosecution or defence.
It is very hard to see what this new body will do that the Witness
Service, with proper funding, is not already capable of doing.
Furthermore ‘Victim’ is a loaded word for criminal
lawyers. Many trials, particularly
of sexual offences, purely contend with the question whether the complainant is
or is not a victim of a criminal offence.
Without question the victims of crime should be provided with full and
proper support before, during and after the trial process. During sentencing they should, of
course, have a voice although affording them the right to be heard from the
witness box is a proposal to be considered with care. Sentencing, particularly in sex and death cases, is already
an emotionally fraught exercise for all involved even judges and lawyers who
must conduct themselves with the most dispassionate professionalism.
In particular I balk when politicians talk of justice ‘for’. Justice is not for anybody it is for
everybody. Victims don’t receive
justice unless defendants also receive it. The public does not receive justice if the criminal does
not.
This proposal, though, is as nothing to the alarming policy
announcement made in the aftermath of the Conservative Party Conference: http://www.theguardian.com/politics/2014/oct/03/tories-plan-uk-withdrawal-european-convention-on-human-rights.
It is very hard to see that this policy is born of anything other than a fit of
pique over two particular judgements concerning prisoners’ voting rights and
the deportation of Abu Qatada.
Every lawyer, although perhaps not the Lord Chancellor, is familiar with
the time worn maxim: hard cases make bad law.
The damage to Britain’s international reputation as a beacon
and guardian of the Rule of Law would be incalculable if a Conservative
government in 2015 even contemplates withdrawing from the European Convention
of Human Rights (the drafting of which was largely in the hands of one of Mr
Grayling’s Conservative forebears as Lord Chancellor!), just as Magna Carta is
being celebrated.
The shoddy dismissal of the Attorney General Dominic Grieve,
a man of clear principle and, as an aside, an assiduous attender at Bar Council
meetings, for expressing his misgivings about this ‘puerile’ policy is a stain
on the Prime Minister’s reputation.
I have yet to meet his successor and have previously blogged about the
folly of attacking him with undue haste but it is alarming in the extreme that
Mr Grayling referred to having received ‘strong legal advice’ as to the
propriety, workability and, most importantly, the lawfulness of his proposal
without having the courage to publish that advice. All professionals, but doctors and lawyers most of all, will
be familiar with those that ignore their professional advice choosing to
dispense with their services: their fate quite often is death or imprisonment.
The sense that the Ministry of Justice has not one eye but
both fixed mesmerised on the concocted and inflammatory outrage of the tabloid
press is only forebodingly confirmed when one considers the alarming jump in
prison suicides that has occurred in recent months: http://www.theguardian.com/society/2014/sep/11/prisons-suicides-inmates-ombudsman.
Every prison suicide is a realised action contemplated by scores of other
prisoners who, while considering such an irrevocable and desperate action, may
very well be self-harming in the interim.
Mr Grayling appears to shrug off the concerns of Frances Crook, Chief
Executive of the Howard League for Penal Reform, as being politically motivated
rather than the urgent counsel of a woman who has devoted her life to ensuring
that criminal punishment is decent, worthwhile and proportionate: http://www.howardleague.org/francescrookblog/.
And so finally to the ‘celebrations’ for the Opening of the
Legal Year. It is amazing how many
criminal practitioners are completely unaware of this event with still fewer
participating in it. Since time
immemorial the commencement of Michaelmas Term has been celebrated with a
procession from the Temple to Westminster Abbey where God is enjoined through
prayer and hymn to grant the judiciary wisdom in their decision making. Of course the criminal courts have no
conception of university based terms as criminals don’t tend to repair to their
villas in the South of France for the Long Vacation.
Like all British ceremonial it involves the wearing of the
most extraordinary clothes conceivable. Needless to say the foreigners love it and the service
is packed to the gunwales with chairmen and presidents of Bars from all over
the world come to London to be shown that the Brits know how to do things
properly. It is, in the truest
sense of the word, a majestic spectacle embodying the confluence of God, Crown
and Justice. But as I sat tucked
away in Poets’ Corner I could not help thinking that all this pomp and the
soaring anthems rang rather hollow if back at court the next day I couldn’t
even buy a cheese sandwich, also, it is perhaps not by chance that QCs carry gloves
when wearing full ceremonial dress because the gloves are well and truly off in
the fight for criminal justice.
