Saturday, 11 October 2014

Justice is performed not a performance: appearance and reality in English justice.

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Crown Court to find that the canteen had closed and that catering facilities had been quietly and unceremoniously withdrawn from courts up and down the land.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.

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