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 18^th 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 26^th floor of Canary Wharf’s gleaming tower to my 18^th 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Crown Court to find that the canteen had closed and that catering facilities had been quietly and unceremoniously withdrawn from courts up and down the land.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 800^th 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.

Hearing women's voices

 As a child (just) of the pre-Internet age I remember as a teenager walking through Hyde Park at the weekend and wandering through the good natured melees that used to congregate at Speaker’s Corner.  In the past there were Speakers’ Corners in parks all over London and as long as Hyde Park has been around it has been a place for crowds to congregate with the Chartists using it as a meeting place for workers’ rights demonstrations.

The Parks Regulation Act 1872 enabled the park authorities to supervise public meetings in Hyde Park.  Some mistakenly believe that the freedom to say anything at all at Speakers’ Corner is unfettered; this is not so and Public Order Act offences and offences of incitement apply there as much as anywhere.  That being said it is exceptionally unusual for a speaker to be arrested at Speaker’s Corner and the police generally adopt a benevolently laissez-faire approach to it.

Marx, Lenin and Orwell are among Speaker’s Corner’s most famous visitors.  Even today at the weekends 20 or so speakers are regularly to be found standing on their soapboxes expounding usually on politics or religion, though less so on the other topic that is so frowned upon at dinner parties.  The crowds that these speakers draw are not huge but often a few hundred people can be seen listening in approvingly or frowning in disagreement.

One thing which has not changed much since I was a teenager is the scarcity of women speakers.  This may be because most women have better things to do than inflict their political opinions on indifferent randomers.  Indeed one could reasonably ask what the point now is of Speaker’s Corner if not only for narcissistic self-promotion of the most obvious sort.

It occurred to me on a recent visit that before the Internet encountering women’s voices in public discourse was still very much an exception not the rule.  Only a handful of women were in Parliament, there were few women newspaper columnists, almost no editors, few women television and radio presenters, token newsreaders and weather forecasters set aside.  Women like 19^th century children were seen and not heard.  Even by the time I arrived at university and debated at the Union there were always more men speaking than women creating a cock fighting atmosphere in more ways than one.

Of course another reason why women may now be eschewing the chance to wear an anorak in the drizzle in Hyde Park holding forth to milling tourists is that the Internet now allows communication to but, more importantly, with millions.  At Speaker’s Corner you might see a bit of heckling but in truth it is not a place for dialogue and conversation but a place of ‘Look at me’ and ‘I am right’.

The role of social media and particularly Twitter in facilitating the Arab Spring is already much commented upon but the thing that I have found so amazing about it is immediate access to discourses and voices which I would never have heard before the Internet.  And by discourses and voices I primarily mean women’s voices.  One of the dangers of Twitter (other than its boundless capacity to waste time and its incitement to self-promotion) is that users choose the voices they hear.  Accordingly mindless, misogynistic racists can choose only to follow like-minded morons in a bid to affirm the commonality of their opinions.

However the regrettable prevalence of trolling suggests that this is not a universal approach to the service.  Men can be the victim of trolling but very often it is women who are subjected to vile, personal and threatening abuse.  This can be criminal and there is a danger that some women will be dissuaded from participating actively on Twitter.  However the very existence of trolling as a phenomenon means that women’s voices are being heard regularly by people who historically would not have heard them which I feel must be a good thing.  Furthermore there are millions of users prepared to call out the unacceptability of abusive tweets.  Twitter is a community and connection with like-minded people inspires the courage necessary to participate in public discourse.

No longer is having a public voice a privilege conferred only on the few and the vast majority of that few being men.  I have learnt so much from Twitter about the lived experiences of women and heard narratives which a generation ago were just not shared with men.  Anybody who listens to these experiences could only be acutely conscious that the struggle for equality in society and in the wider world is as fraught, contested and necessary as it ever was.  The richness that comes from exposure to plurality of experience cannot be quantified and whatever Twitter’s shortcomings are providing a soapbox for the world has improved all our lives.

 

An Open Letter to Lord Justice Leveson & HH Geoffrey Rivlin QC

It is incumbent upon anybody with even a passing interest in the proper functioning of the Criminal Justice System (CJS), and frankly that should be all of us, that they do not miss the opportunity to provide their views and opinions on how the CJS could be improved.  You can feed into Lord Justice Leveson's review here:http://www.judiciary.gov.uk/the-president-of-the-queens-bench-divisions-review-of-efficiency-in-criminal-proceedings/your-chance-to-contribute/ and HH Geoffrey Rivlin QC's review here (barristers only): https://www.surveymonkey.com/s.aspx?PREVIEW_MODE=DO_NOT_USE_THIS_LINK_FOR_COLLECTION&sm=n5kCNpCBOsglF4YkHndAG%2biUlkQaNoUx1mWrgWzrddE%3d


This is the letter I have drafted:

These are my suggestions in bullet point for potential ways in which the efficiency of the Criminal Justice System could be improved.  I offer them in a purely personal capacity conscious that many others will have made similar suggestions and acknowledging that many of these ideas are not new and that some may be quite controversial.

Underpinning my observations about improvements to the trial process is a belief that advocacy is the art of persuasion not administration and that if advocates are not in court seeking to persuade a judge or a jury then it is difficult to discern the purpose of their being in court.

 

Pre-Charge

1. Police Bail – this may not strictly be within the purview of your review but prolonged periods of police bail are capable of bringing the CJS into disrepute and of course are capable of building in delay before a case even comes before the courts.  It is unclear what mechanism there is properly to scrutinise why suspects are bailed for as long as they are on a case by case basis.
2. Police Cautions – there has been in recent years occasional media reporting expressing disquiet about the apparent proliferation in the use of Police Cautions and again it is unclear who or what body is responsible for scrutinising whether policies regarding the use of Police Cautions are being properly and consistently applied across the country.

Charge

1. Case ownership – the Crown Prosecution Service appears to have reversed a policy it introduced a number of years ago of dispensing with allocated lawyers.  My perception is that this policy encouraged a problematic abandonment of responsibility for cases.  The CPS requires sufficient resources that every case it prosecutes is ‘owned’ by a lawyer whose name, email address and telephone number is clearly identified to the court and all lawyers in the case.  The same should also be true for the officer in the case and the CPS caseworker.
2. Selection of charges – again this is not strictly a question of efficiency but concern has been expressed that as well as over-zealous diversion from the courts some cases that come before the courts are undercharged in circumstances, for example, where injuries that properly amount to grievous bodily harm have resulted in actual bodily harm prosecutions or where an incident that could properly be charged as robbery is charged as theft from the person.
3. Response to charge – the very recent past has seen a concerted effort to apply Early Guilty Plea schemes across the country.  Might there not be further efficiencies to be derived from inviting suspects at the point of charge to indicate whether they are willing to tender a plea on the spot?  Almost all custody areas have the benefit of CCTV recording which would be a safeguard against any abuse of such a scheme and it would enable magistrates’ courts to dispose of cases even more quickly if defendants appeared before them having already pleaded guilty.

Magistrates’ court

1. Summary trial – others may be better placed to offer suggestions about accelerating the process in the magistrates’ courts and observations I will make about increased use of video links in the Crown Court apply as much to the magistrates’ courts.  Certainly the need for identifiable case ownership by individual lawyers within the CPS would ensure that contested trials in the magistrates’ court proceed much more efficiently.
2. Sending for trial – the abolition of committal proceedings seems to confer a negligible saving if every Crown Court trial now requires a Preliminary Hearing.  Magistrates’ courts should be able to make all necessary directions regarding service of the Crown’s case and the defence statement at the point of sending cases for trial.

Crown court

1. Abolition of Preliminary Hearings – as adverted to above it is unclear why it is necessary for these hearings to take place if all orders could be made by the lower court.
2. Abolition of PCMH – This is a bold suggestion.  However if the premise regarding oral advocacy being the application of persuasion holds true then it would seem there is scope in many cases to avoid a court hearing.  If a defendant wishes to plead guilty following the sending of his case for trial then the onus should be on him and his legal representatives to communicate that intention to the CPS and court at the earliest possible moment to enable the guilty plea to be offered.  If a defendant is resolute in a not guilty plea then his case can be fixed for trial with arraignment occurring at the start of the trial.  A huge amount of the business of a PCMH could and should be resolved electronically and time spent by judges administering cases from their computers rather than the Bench could enable a huge saving to the public purse and to the time of advocates, court staff and defendants.
3. Sanctions – the reason why the abolition of PCMHs sounds such a far-fetched proposal is that the judiciary has learnt from long experience that often the only means of ensuring that judicial directions are adhered to is to compel the parties into the courtroom.  However the existence of a meaningfully applicable costs sanctions regime against the CPS and defence lawyers could well prove to be a much more effective remedy than expressions of judicial wrath from the Bench.
4. Identification and selection of advocate – echoing the earlier observation about case ownership there would appear to be more scope for judges to oversee more definite identification of the advocates for a case at the earliest possible juncture.  Both the CPS and defence firms, much more often than they ought, return cases for trial to the self-employed Bar at a very late stage in proceedings.
5. Video links – when a defendant is in custody it is unclear why pre-trial hearings should not be conducted by video link by default.  Furthermore if advocates have appropriate facilities it would seem to save a great deal of time and money if they were to be able to appear before the court electronically from their homes or workplaces.
6. Warned Lists – it may be that there has been substantive analysis of the savings that have accrued from the operation of a warned list system but it is something that comes as a shock even to barristers practising in the civil law that criminal cases are listed in such a nebulous way.  The warned list system can do a great disservice to victims, witnesses, defendants and, of course, advocates.  A hospital would not, I venture to suggest, countenance saying to a patient that his or her surgery may occur on any given weekday over a fortnight and it is unclear why the CJS believes this is an appropriate way to treat victims of sometimes very serious crimes.  Furthermore case ownership and preparation by litigators and advocates is cemented by the knowledge that a case is fixed in their diary for their availability.  The all too common phenomenon of defendants being absent for trial because they claim they were not warned that their trial had come into the list would be ended.  A number of courts systematically list cases for mention following warned lists in which they have not been reached.  This seems to be a particularly unnecessary use of court time.
7. Trial in absence – defendants are clearly warned that their trials may proceed in their absence and yet this seems to occur only in a very small minority of cases where the defendant does not present himself for trial.  Again in the civil jurisdiction judges would be extremely slow to adjourn proceedings because one of the parties did not present themselves for trial on the date and time appointed.
8. Internet access in courts – I hope the need for this is self-evident.  However beyond the facilitation of communication there are often evidential matters that arise that could be resolved on the spot in the courtroom.  For example in robbery and assault cases when accounts are given of the movements of the parties rather than laborious recourse to maps and printouts a properly equipped courtroom would enable a street view tour to be given to the jury.  It is conceivable that in some cases this could obviate the need for hugely expensive and time consuming site visits.
9. Reviews of the evidence – American judges find it extremely surprising that their English counterparts are called upon to summarise evidence to juries.  Is there not an argument to be made that summings up should be reduced in all cases to writing without evidential reviews?

Sentence

1. Presence of defendant – in cases where judges agree to an application by the defendant to be sentenced by video link would this not save time and money.

Judge a man by his actions not his website - Reflection on the Attorney General

Of many of the appointments made in the Cabinet Reshuffle this week two of the least publicised and celebrated have been those of the new Attorney General and the new Solicitor General.  Dominic Grieve QC MP (58), who was Attorney General, was called by Middle Temple in 1980 and specialises in health & safety law, he became a Bencher in 2005 and a Silk in 2008 when shadow Attorney General.  He was elected in Beaconsfield in 1997.  Oliver Heald QC MP (59), who was Solicitor General, was called by Middle Temple in 1977 and practised at the Bar from 1979 until 1995 when he became a minister.  He was elected in North Hertfordshire in 1992.  They were sacked on Tuesday, apparently without much warning, as it would seem they were due to attend a press briefing later that day.

Replacing them are Jeremy Wright QC MP (41) who was called in 1996 and specialised in criminal law until 2005 when elected to his seat in Rugby and Robert Buckland MP (45) who was called in 1991 practised in crime, is a Crown Court Recorder and was elected to Swindon South in 2010.  Much has been made from legal commentators and practising barristers in the hours that followed their appointment of their comparative obscurity.  Some of the commentary has been sneering and scornful; the wisdom of publicising that scorn is perhaps worth reflecting on.  The principle anxiety that has been articulated is that the Prime Minister has deliberately appointed two very young and comparatively inexperienced Law Officers for their pliability particularly in regard to undefined and as yet unannounced Government plans to renegotiate Britain’s membership of or submission to the European Court of Human Rights.

It has been reported that Dominic Grieve and others  counselled the Prime Minister about embarking on such a course.  If this is indeed the intention I will add my voice to the swiftly swelling ranks of those who are illuminating and delineating some obvious perils that lie ahead.  Obvious to lawyers it is perhaps not so clear to politicians that if you as an individual, entity or country submit to the jurisdiction of a court then you agree to submit to its rulings.  That, of course, pertains whether the court rules in your favour or against you.

If as a country you choose that you no longer wish to submit to a supra-national court’s rulings then you have one option: leave.  The Prime Minister will not propose such a course for two reasons.  The first is that he lacks the political courage for such a stark and bold move.  The second is that he will be well aware of the withering international reaction to a mature democracy, supposedly with the highest regard for the Rule of Law, announcing to the world that because of pique over a few court rulings it wants to withdraw into its shell.  Such a withdrawal would be a repudiation of the notion that the safeguarding of human rights is something that transcends borders and small-minded concerns over sovereignty.

This is an opportune moment to pay tribute to Dominic Grieve who was an assiduous attender at Bar Council meetings even when he was the lightning conductor for the Bar’s anger over cuts to Legal Aid.  He took his role as Leader of the Bar extremely serious as he did all of his responsibilities in the office of Attorney General.  Some have remarked on his voting record which accorded with the Government’s legislative programme.  There is no question that in some quarters it was felt that he could have been even more vocal in warning and working to stop some of the Government’s disastrous reforms in their tracks.  However it is difficult conceive how uncomfortable it must be to have a representative role in the legal profession while at the same time attending Cabinet when the Government and lawyers are at loggerheads.  Necessarily the most important persuading and cajoling takes place out of sight.

If reports of the background to his dismissal are correct then nobody should doubt that he is a man of integrity who, when called upon to sanction heedless political opportunism over hard won safeguards to the Rule of Law, showed his true colours. 

Thus one turns to the newcomers.  Youth is not a synonym for inability.  It would be crass of me to observe that as chairman of the Young Barristers’ Committee I have more practising experience than the new Attorney  General because of itself that proves nothing.  Obscurity is no bar to achieving repute and respect.  Much mockery has focussed on the new Attorney General’s chambers profile and his self-professed familiarity with video links.  The day a barrister’s worth is judged by the hyperbole of his self-publicised qualities is a truly bleak day.  A barrister of genuine integrity ought not demean himself with puffery and advertising and it is a reflection of the age in which we live that we all submit to this diminishing practice.  I judge a man on his actions not his chambers’ website.

I do not believe it to be right that with the now well established mechanism in place for Queen’s Counsel Appointments that the Law Officers should be awarded Silk as a courtesy title.  Silk is won by a rigorous process of examination and scrutiny now and it is no more right that a Government job should carry Silk as a perquisite than it would be to award a Phd.  If the Government chooses to select a junior as a Law Officer that should be clearly stated and understood.

If the Government’s reported intentions are true then this will be a fantastically fraught time to occupy these ancient offices.  Our responsibility as members of the Bar is to support the new Law Officers in their inestimably important responsibility of upholding the Rule of Law.  If they betray that responsibility through action or inaction then they can be judged, not just by us but by every human being whose worth and rights is jeopardised through political expediency.  Until that happens, as every juror should, I am keeping an open mind.

Equality & Diversity: Not an optional extra.

When I was at Eton in the 1990s I thought I knew all about diversity.  After all just in my year group were boys from Nepal, Saudi Arabia, India, China, Colombia, France, Italy, Germany, Spain, Austria, America, Palestine and all the corners of the British Isles.  There were Protestant boys, Catholic boys, Muslim boys, Jewish boys, Hindu boys, Sikh boys, boys of little faith, avowedly no faith and a number indifferent to the whole concept.  There were even some boys without titles.  This seeming eclecticism apparently conferred on us the ability to see, appreciate and understand a world of plurality and difference. 

But this surface variety concealed a clear common denominator.  The boy from Nepal, Prince Nirajan, was excused chapel on account of his semi-divine status at home, the boy from Saudi Arabia was from the House of Saud, all the other boys though perhaps from less exalted families shared in the joint bounty of privilege.  Privilege obliterates difference because the tensions attendant on difference are instantly defused by wealth and comfort.  Money is a language and a creed understood by all anywhere in the world. 

There were of course some scholarship boys, inheritors of the school's original purpose, namely the education of 70 poor scholars to keep it all real.  And there was my friend Musa, now an acclaimed poet, writer and football journalist, the one black boy in a year group of about 260 boys who has written insightfully about the experience of being a minority within such a rarefied minority http://blogs.independent.co.uk/2012/08/14/whats-wrong-with-eton-it-doesnt-teach-snobbery/.   

When you leave Eton you believe you can do anything.  And you believe it because you can.  And for some that is the start of a life of unexamined and unthinking entitlement.  Doors that are always open for you because they always were and always will be.  But this post is not about Eton and whether schools like it are a blessing or a curse or a much more nuanced combination of the two. 

Instead this post is about the  criminal Bar (again!) and specifically access to it. To the outsider these are institutions that are essentially inseparable.  Both require their members to wear archaic black and white uniforms.  Both appear to exist in cloistered sequestration from the 'real' world.  But do not be deceived by appearances.  The Bar is a remarkably diverse place with its members drawn from a panoply of backgrounds and ethnicities, as the Bar Standards Board's biennial survey of the Bar demonstrates: https://www.barstandardsboard.org.uk/media/1597662/biennial_survey_report_2013.pdf  

2.1.2 Ethnicity 

In 2011, it was reported that one in ten (10%) of 

the Bar were from BME backgrounds. This figure 

remains unchanged in 2013 with 83% from 

white British backgrounds and 6% from other 

white backgrounds and 2% from a white Irish 

background. Asian Indian is the largest minority ethnic 

origin (2%). 

There is some indication of a rise in the proportion of 

BME barristers as just 7% of those who were 

called more than 21 years ago are from BME backgrounds 

compared with 13% of those called in the last 7 

years. However, it does not appear that there has been 

much increase in the proportion of BME barristers in the 

last 20 years. By age there are similar differences with 

just 4% barristers aged 60 plus being from BME 

backgrounds compared with 12% of those aged 

under 40. There is also some evidence, corroborating 

the findings from 2011 that a higher proportion of female 

barristers are from BME origins than men (13% compared 

with 9%). 

 2.2 Educational profile 

As in 2011, several questions were devised to gather 

information about the educational background of barristers. 

First, respondents were asked to indicate the type of 

secondary school they attended (state or fee paying) and 

then two questions sought information on their higher 

education; the university attended and the class of degree 

attained. These variables proved to be illuminating in 

differentiating between barristers in their choice of practice 

areas, success in achieving Silk and a variety of other 

employment-related issues. 

2.2.1 Secondary education 

Across all barristers 56% went to state schools and 

44% to fee-paying schools, the same as reported in 

2011. Female barristers are significantly more likely to 

have attended state schools than male (65% compared with 51% 

of men) and this is the key variable correlated with type 

of secondary schooling. It is also noticeable that more of 

the under 30 age group attended state schools and fewer 

of the 60 plus age group; however, this is partly linked to 

the relative number of women in each age group. It is also 

noticeable that more BME barristers went to state schools 

(67%), more of those who are gay/bisexual (67%) and more 

of those with adult caring responsibilities (66%). These 

differences were all noticeable in 2011 as well, reinforcing 

the reliability of the data. 

One final issue that was also mentioned in 2011 and bears 

repeating is that those barristers who started a career at 

the Bar later in life i.e. they were Called to the Bar aged 30 

plus are more likely to have attended state schools (66%). 

2.2.2 Higher education 

The second set of educational background questions 

concerned the university attended by respondents to 

the survey. Barristers were asked to write in the name of 

the university they attended and, using the same coding 

system devised in 2011, these were then coded into six 

broad groups that relate to current concepts of university 

hierarchy, and can be used to monitor changes in the 

profession in future years. However, this might be viewed 

as a somewhat crude measure and it may be that when 

older barristers qualified, different universities were 

considered of a higher status, depending on the subjects 

they studied. Notwithstanding these considerations the 

groups used are: 

■■ Oxbridge (Oxford and Cambridge) 

■■ Russell Group universities (e.g. Bristol, Edinburgh, 

Imperial, LSE, KCL but excluding Oxford and 

Cambridge) 

■■ 1994 Group universities (e.g. Bath, Durham, Exeter, 

York) 

■■ Other pre-1992 universities (e.g. Keele, Aston, Brunel, 

Salford) 

■■ 1992 universities (e.g. Brighton, De Montfort, Leeds 

Metropolitan, Sunderland) 

■■ Second wave new universities (e.g. Bath Spa, Solent, 

Gloucestershire) 

■■ Others, including overseas and Open University. 

Across all barristers, three in ten (32%, 30% in 2011) went 

to Oxbridge, 39% went to Russell Group universities 

and seven per cent went to 1994 Group universities. Just 

13% went to the old polytechnic sector of higher 

education. 

In recent years more new entrants to the Bar were 

educated at Oxford or Cambridge with 45 per cent of 

the Young Bar (new entrants 1-3 years) having attended 

Oxbridge, compared with 31% across the remainder 

of the Bar. Among those who started their career at the 

Bar later in life i.e. aged 30 plus, fewer attended Oxbridge 

or Russell group universities (16% and 33% respectively 

compared with 35% and 40% among more traditional 

entrants to the Bar). 

Whether or not barristers qualified later in life as mature 

entrants or were younger traditional entrants to the 

profession is strongly correlated with the university 

attended. For example, just under half (49%) of nontraditional 

entrants to the profession attended Oxbridge/ 

Russell Group compared with 75 per cent of traditional 

entrants. This variable accounts for most of the variation in 

university attended. Conversely many more non-traditional 

entrants to the profession studied at ‘1992 universities’ i.e. 

the old Polytechnic sector (20% compared with 10% of 

those who were called to the Bar aged under 30). 

In addition to this, more BME barristers came from 1992 

universities (21% compared with 10% of white barristers) 

and fewer went to Oxbridge (16% compared with 33% of 

white barristers). 

But before you say 'Hang on those stats aren't that impressive, what about the massive Oxbridge and private school bias' just imagine what the situation was like before the War.  Legal Aid has had a transformative effect on the ability of people from all walks of life to aspire to the Bar and, much more importantly, make that aspiration a reality.  I have worked alongside barristers from a startling and invigorating array of backgrounds including a former fireman and a former rough sleeper.  What they have all had in common is not privilege but an unwavering intention to put into practice the ideals of justice.  They are members of an elite profession but not an elitist one and the distinction is a powerfully important one. 

If the Bar as an institution is to afford any value to society it is essential that its standards are of the absolute highest.  All that the Bar needs and must demand of its members is an unflinching work ethic and immaculate judgment.  Social butterflies and dilettantes are anathema to the criminal Bar of the 21st century.  In return barristers are entitled to expect reasonable remuneration from the state for their substantial efforts.  And reasonable remuneration does not mean enough to pay school fees or for a small gite in the Dordogne but it definitely means enough to permit repayment over time of debts of up to £60,000 and ownership of a roof over one's head. 

This reasonable entitlement and expectation reflects another truth about the Bar.  The quality of justice the Bar administers and promotes is only as valuable as it is legitimate.  The legitimacy of justice depends on society's acceptance of and investment in it.  If the Bar looks and sounds nothing like society then there is every reason to doubt that society will accept the outcomes of its labours.  It is for this reason that Equality & Diversity should never be treated as some kind of joke or hobbyhorse of metropolitan liberals.  It is in fact of central importance to what the Bar does. 

On 27 February 2014 the Ministry of Justice published its response to the consultation it issued regarding proposed cuts to Legal Aid https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/results/transforming-legal-aid-next-steps-respons.pdf . It included an Equality Statement at Annex G (my emphasis): 

 'We have considered the implications of the reforms for the advancement of equality of opportunity and the need to foster good relations. For example, where it has been said in a consultation response that a particular change may affect the participation of persons who share a relevant protected characteristic and are under-represented in public life, we have considered the extent to which the proposed changes are compatible with the need to encourage such participation. We consider that where relevant, the reforms do not undermine attainment of those objectives.  

For the most part, we do not consider changes in legal aid remuneration to be relevant to the need to advance equality of opportunity or foster good relations. Respondents to the consultation suggested that reductions in levels of remuneration would result in a less diverse Bar, in turn resulting in a less diverse judiciary. We do not consider that the reforms will put women or BAME practitioners at a particular disadvantage over others in practice at the Bar and that this would ultimate reduce the diversity of the pool of practitioners applying for judicial office. However, if there is a particular disadvantage to a particular pool of practitioners with relevant characteristics, we believe our reforms are a proportionate means of achieving the legitimate policy aims set out above.  

The primary responsibility of MoJ in administering the legal aid system must be to provide fair and effective legal aid to those clients most in need. While we have taken into account points made by respondents about the potential effect of these reforms on providers and the junior Bar, the specific levels of representation within given practice areas at the Bar and solicitors profession are primarily the responsibility of the BSB and SRA.  

Although MoJ is mindful of the need to encourage those with a protected characteristic to participate in public life and the need to advance equality of opportunity generally, MoJ does not believe that legal aid remuneration is the most appropriate policy instrument by which to achieve diversity within the professions or the judiciary. Were the reform to make the attainment of the objectives more difficult, we consider that the changes are necessary and justified in all of the circumstances (including the financial context), for the reasons set out above.'  

 I have these observations to make: 

1. We do not consider changes in legal aid remuneration to be relevant to the need to advance equality of opportunity or foster good relations - This is a quite remarkably obfuscatory statement.  Legal Aid cuts not relevant to the need for the advancement of equality is one thing but only a fool would contend that they are not relevant to the achievement of equality. 

2. We do not consider that the reforms will put women or BAME practitioners at a particular disadvantage over others in practice at the Bar - You will notice absolutely no evidence is provided for this 'considered' opinion.  This is because the MoJ knows perfectly well that women and BAME barristers work predominantly at the publicly funded Bar and accordingly Legal Aid cuts will in fact put them at a very particular disadvantage. 

3. Although MoJ is mindful of the need to encourage those with a protected characteristic to participate in public life and the need to advance equality of opportunity generally, MoJ does not believe that legal aid remuneration is the most appropriate policy instrument by which to achieve diversity within the professions or the judiciary - If the MoJ does not believe that paying women and BAME barristers a fair fee for the work that they perform in the public interest is the 'most appropriate policy instrument' for achieving diversity at the Bar it would have  been awfully decent of them to say what is. 
   
   

The overall thrust of the response of course being that the need to save money trumps all other considerations including operating a criminal justice system that enjoys any kind of legitimacy or international esteem.  The civil servant responsible for this part of the response is mercifully unnamed and one can only hope it was written through a Sahara desert of gritted teeth.  

What makes this disingenuous hypocrisy especially galling and hard to stomach is that my Bar Council responsibilities entail a significant amount of outreach work with, for example, The Social Mobility Foundation http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2013/july/bar-council-launches-6th-and-largest-social-mobility-foundation-bar-placement-week/. 

This and the work I do with the Kalisher Scholarship Trust http://www.thekalishertrust.org/outreach-projects/ enables truly bittersweet interactions with bright and able teenagers of genuinely diverse backgrounds.  They are introduced to the work of the Bar through observation, mock trials and debating and put through basic advocacy paces.  The latent talent of some of these children is abundantly obvious and to have a clutch of them inspired to say at the conclusion that they would like to aim for the criminal Bar is to feel drawn into the Ministry's grubby deceit.  These children can and must be the barristers of the future but setting them on the road without the promise of a living at the end of it would be to traduce the integrity of their dreams. 

Last week I visited the Bethnal Green Academy which in a previous incarnation was the alma mater of the Kray twins.  In Special Measures in 2007 it is now rated as Outstanding; an appellation which was richly deserved if the day I spent there was typical.  The Kalisher team put the children through their paces in the main hall of the school on the wall of which is quoted Nelson Mandela: 

'Education is the great engine of personal development.  It is through education that the daughter of a peasant can become a doctor, that the son of a mineworker can become the head of the mine, that a child of farm workers can become the president of a great nation.  It is what we make out of what we have, not what we are given, that separates one person from another.' 

I couldn't help but feel that the quote might be more pointedly and usefully displayed at the Ministry of Justice. 

Something that I have learnt from my time at the Bar is that diversity isn't just about skin colour it is about experience, expectation and opportunity.  What to one child is handed on a plate is to another placed at the pinnacle of Mount Everest.  The least we can do as a society is supply some climbing equipment.