Thursday, 27 August 2015

The Butcher, the Baker and the Barrister: The way things were they will not be.

In July of this year an exceptionally fine pair of candlesticks called the Cremorne Candelabra sold at Christie’s for just under a million pounds.  Manufactured by John Wakelin and William Taylor in 1790 those two craftsman could not have imagined that 225 years later these objects would be valued solely for their form and not at all for their function.  There were three men in the tub in the nursery rhyme but the candlestick maker was long ago consigned to oblivion by the unforgiving and uncaring march of progress and technology.  A question well worth pondering is whether the barrister is destined to go the same way.
Absolutely rightly the ever more agonised negotiations between the legal professions and the Ministry of Justice have focussed on public money and the sufficiency of its supply in order to guarantee the proper functioning of the justice system.  Lawyers insist that the tipping point is long since past whereby inadequate funding means justice simply can’t and won’t be done.  Civil servants and politicians on the other hand hope and believe that more cuts can be made while keeping some semblance of a justice show on the road.  If scandal, media and public outrage can be avoided then the axe can keep on falling regardless of the real consequences.
However this piece is not about money and the need for more of it to keep justice alive.  That goes without saying and I have said it before, repeatedly.  Instead this is about change, the change we see, the change we ignore, the change we embrace and the change we fear.  It is a remarkable paradox that almost all politicians stand on change platforms when running for public office and yet within our private lives change is so often alarming and threatening.  What of course politicians are really selling is a belief in beneficial change, not disconcerting and uncomfortable disruption.  However this ignores that almost all change, whether for good or ill, involves a period of unsettling destabilisation.  Better the devil you know is the unconscious mantra for many, many people.
Every barrister in England & Wales must belong to an Inn of Court.  Only four remain, geographically concentrated they cherish their unique identities and traditions but to an outsider they are identical repositories of Hogwartian ritual and arcanum.  This connectedness to the past is comforting to many barristers whose day jobs may involve far too complete an immersion in the horrors of the modern world.  But even stupefied by the Port at the end of an Inn dinner it is impossible to ignore that pressures are being exerted on the Bar and the Inns that are far greater than whether Michael Gove will relent on two tier contracts.
I am amongst the last generation of barristers that, like barristers since the dawn of the Bar, undertook legal research in libraries.  As a pupil in 2004 I vividly recall queues for the photocopiers and strict instructions about magnification and not cutting off margins and page numbers.  Finding a case on point was a test of resourcefulness and diligence.  Yet now in 2015 Inner Temple is the first Inn to go public with its admission that library usage has plummeted.  Plans are afoot to reduce the library’s size and convert the space into revenue generating meeting rooms. Not surprisingly this has angered and dismayed a number of barristers who recoil at any encroachment on the Inn's learning heart.
Now legal research is so easily achieved via online databases that the Court of Appeal has had to enjoin lawyers not to inundate judges with every case ever heard on a particular point.  A very obvious consequence of the diminishing importance of the Inns’ libraries is that the necessity for the proximity of barristers’ chambers to the Inns is over.  How long will tradition impel barristers to feel that they must pay over the odds for the prestige of a Holborn address?
The concept of a virtual chambers is already well established, a more interesting question is how long bricks and mortar will endure.  The hard copy law reports in my chambers long ago stopped being an essential resource and instead became immensely expensive wallpaper.  Other self-employed tradespeople like plumbers do not clock off at the end of the day and return to a building full of other plumbers.  Why will barristers continue to do this when a chambers is just a seriously expensive place to store pointless paper briefs and conduct meetings?
Of course the pooling of expertise and the training and apprenticeship provided by pupillage is not something that will ever be replicated in any meaningful way virtually but the changes to our working practices, embraced or not, may inexorably lead to a dissolution of the camaraderie and fellowship provided by chambers.
Technology has long ago moved on from the manufacturing industries and made encroachments into the services.  Algorithms underlie most of the trading on the world’s stock markets.  Only the doltish or the na├»ve could assume that legal services will enjoy any immunity from this process. 
Of reassurance to barristers though is the fact that as long as oral advocates are called for it will be a long time before machines and computers are advanced enough to take over.  If barristers wish to thrive though they need to ensure that they are as unencumbered as possible.  Buildings, staff and administration are all expensive; are they necessary?  A principal virtue of self-employment should be nimbleness and agility.  If barristers voluntarily weigh themselves down they can only blame themselves when they sink not swim. 
By way of contrast the modern world poses a real threat to the traditional work of solicitors.  Competent and literate clients are capable of drafting their own statements, gathering their own evidence and even serving their own documents.  The importance of the ‘paperwork’ side of legal practice as a professional specialism is diminishing every day.  As long as oral advocacy remains a feature of the justice system the importance of the ‘talking’ side will be preserved.  When the tools of your trade are your mouth and your brain why are you paying through the nose to imprison them in a fancy building in the Temple?
I am old enough but still young enough to share the anxieties of the leaders of the Bar while feeling those of pupils.  The coming death of the Bar has been coming for a very long time and, truth be told, will carry on coming for many more years.  Young barristers are resilient and resourceful; they know the Bar they will practise at may not, should not even, look anything like that which Silks know and love.
The next decade will see some very significant changes.  I predict that the Advocacy Training Council will become a very much more powerful organisation and if the Inns are to maintain their traditional role as gatekeepers to oral advocacy they will have to consider opening their doors to all advocates whatever their job title.
Like the Cremorne Candelabra if the Bar wants to avoid becoming no more than an expensive and decorative antique it will constantly have to reassert that its function is vital.  I am cautiously optimistic that it will succeed and, thankfully, you can't put a wig on a computer.

Tuesday, 25 August 2015

Tied up in knots and choked by choice - Why less is more.

I have just moved house.  Notorious for inclusion among the three Ds of devastating stress: Divorce, Death and Decamping.  It must be a near universal experience of a house move to be horrified at the sheer quantity of stuff that has been accumulated over the years.  Perhaps there are ascetics who have forsworn belongings who manage to make moves by bus rather than groaning pantechnicon and squadron of burly men.  If there are I’m not sure they and I would have much in common.

A paradox in my own approach to life is that I pride myself on an ability to turn up at a departure gate with all necessary belongings in a plastic bag.  Yet in my permanent life I am dwarfed by mountains of pointless detritus.  I have twelve ‘fancy’ waistcoats for wearing at weddings.  This is not normal, it is not healthy and it is not OK.  I need a motto or slogan for my life, a Max’s maxim - Nobody’s looking at you mate.

This is not exaggeration, as this inadvertent experiment I undertook demonstrates.  The name Karl Stefanovic is unlikely to mean much to most Brits but he is an Australian news anchor who wore the same suit on screen  for a year to expose the contrast in scrutiny of men’s and women’s appearance. 

In my own tiny recreation of this endeavour I have worn this tie to work every day for the last three months:

It is a plain blue handmade tie from Paris.  I did not buy it I inherited it.  It is from a manufacturer so discreet there is no mention of it on the internet.  It is a very nice tie and was no doubt very expensive.  My reasoning was if you’re going to wear one thing it best be a very nice thing.

For three months I have got up and have not had to give a second’s thought to my choice of neckwear for that day.  It has been one less worry at a very worrying time.  You of course may feel that a normal person  would hardly have to worry about what tie they were going to put on.  But, as I have already said, I am not normal.

Now that I have been reunited with what my wife determinedly believes is the effluvia of my past rather than a jointly owned cornucopia of delights I can once again choose what message I wish to convey to the world via a scrap of cloth about my neck.

It is not an easy choice because this is my tie collection:

As all barristers know there some situations that are so grave that there is no mitigation so the only defence I will raise is that I inherited the vast majority of these, of this insane profusion of peacockery. 

Never have I understood better that if I want to tell the world something I can do it with my mouth, or even better my actions, rather than through some obscure semaphore of silk.  Not one single person remarked on the monotony of my tie, nobody decried my lack of imagination,  in short nobody cared.
When Gandhi died, a barrister who knew a thing or two about travelling light through life, these were all the possessions he owned in the world:

The moral of the story is: little but lovely.

Friday, 7 August 2015

How to be a witness: Good Looks & Fleeting Glances

We do not teach children to be witnesses.  It is not surprising therefore that the quality of witnesses varies enormously.  As patients are to doctors so witnesses are to barristers and barristers will habitually refer to good or bad witnesses.  A good witness is, first and foremost, truthful.  A good witness is clear.  A good witness is reasonable.  A good witness is accurate.
The purpose of this blog is to help you be a good witness.  This is not by way of coaching which is, quite rightly, completely forbidden.  Instead this is intended to be a general survey of matters you may want to (try to) bear in mind if you are ever unfortunate enough to be a victim of or witness to a crime.
I was prompted to write this by a recent random attack on a person close to me who was alone at night in the street.  This occurred without warning, was unprovoked and without any apparent motive.  Mercifully no injury was inflicted and the assault was short lived but great distress and anxiety were unsurprisingly caused.  As I reflected on this it occurred to me that in all the time I had known this person we had never had a discussion about what makes a good witness.
As a teenager I underwent First Aid training although have fortunately never had to deploy the skills I learnt and hope I never have to but it is a source of comfort to me that I have this essential background knowledge.  I hope that what I set out here can remain in your background knowledge, ideally never needing to see the light of day.
If you have been unlucky enough to be the victim of violent crime you will be sadly familiar with the fight or flight response triggered by the massive adrenaline rush that accompanies such incidents.  This response is very useful for the immediate preservation of life however it is unfortunately also what causes many people to be terrible witnesses.  Panic and clear thinking don’t go hand in hand and while it is easy for me typing this in comfort to say don’t be a rabbit in the headlights, if you stare into them you will be blinded and will make a poor witness.
A remarkable experience many criminal barristers will be familiar with is reading witness statements containing descriptions of robbers or assailants, sometimes quite full descriptions, which when compared with CCTV footage of the incident are completely at odds with the appearance and clothing actually worn.  It is an experience that better than any demonstrates the appalling danger of injustice posed by the honest but mistaken witness.  Such witnesses can project the powerful persuasion of a conspicuous truth teller while inflicting worse damage to the fairness of a trial than the most skilful dissembler.  You do not want to be one of these witnesses.
The case of Turnbull paved the way for recognition of the dangers that identification evidence presents and there is now a significant body of statute and case law that sets out the safeguards that must be in place before such evidence is allowed before the court, a precis can be found here.
But this is no law lecture instead here is some simple advice to ensure that you will never be an honest but mistaken witness:
  1. Panic - Stop panicking; easily said but if you can maintain some focus your observations will be fuller and much more likely to be accurate.
  2. DNA - If you are a victim of an assault and you have to defend yourself a grasp of your assailant’s hair or a scraping of their skin from under your nails will yield invaluable DNA evidence that can prove presence at the scene (this is obviously last resort stuff and if you can safely make good your escape without getting physical you should do so).
  3. Description - You will be asked for this the moment you call the police, it goes without saying the more the better.  In our day to day lives we are not often called upon to provide full descriptions and it is astonishing how unobservant we can be.  As a witness you want to be using your full attention.  This is what the police will want: gender; ethnicity; age; height; build; hair colour & style; distinguishing features (tattoos, scars etc.); and clothing.
  4. Quality – In disputed identification cases the quality of a witness’ observation of the assailant is crucially important.  The court will be concerned first with duration, many incidents are over in seconds almost all within a few minutes, the longer you have observed the assailant the less your identification can be attacked.  Under no circumstances do you want your observation characterised as a 'fleeting glance' which usually signals game over for the prosecution.  Distance is the second most important issue with face to face obviously being ideal.  Obstructions – are you observing this through twitching net curtains veiled by foliage and behind parked cars, if so you’re not getting a good look.  Lighting – is the street pitch dark or lit up like Old Trafford?
  5. The face – faces are exceptionally difficult to describe but, if observed for long enough, can be accurately picked out in an identification procedure.  One problem with witnesses is that conventional social norms militate against gazing into stranger’s faces and if they have a weapon in their hand this becomes even more difficult.  Shoes, clothing and the rest can be noted in a moment but it is the face that you need to fixate upon.  Ideally you want to know it better than your mother's: sear it into your mind's eye.
  6. Write it down – as soon as the incident is finished write everything down, this is obviously particularly important with vehicle registrations, you will want to include as much detail of other potential witnesses as you can, if you have any artistic ability draw a picture of the assailant.
  7. Delayed recollection – the immediate aftermath of an assault is an extremely shocking period and often details of the incident will be recalled over time; it goes without saying that these must be communicated to the police as soon as possible.
  8. Sure – this word carries enormous significance in a criminal trial.  The jury must be sure that the person in the dock is the person that assaulted you.  If identity is disputed the defence will be saying that the jury can not be sure.  This is important to know and bear in mind when witnessing an offence.
I readily acknowledge that much of the foregoing is obvious common sense and it would be preposterous to imagine that this blog will be at the forefront of your mind should you ever become a witness.  But if just one thought can lodge in your subconscious it should be this: Good Looks not Fleeting Glances.
By way of a brief postscript and aside a vexed issue that is occasionally aired in discussions of gendered conduct is how men should walk down darkened streets.  The sad reality is that for many women the sound of footsteps fast or slow behind them sets alarm bells ringing.  What is not so often admitted is that the same is true for many men. Whether the fear is of robber or rapist fear is fear and it behoves all of us, men and women, not to engender unnecessary anxiety when we are out and about.  Love thy neighbour and all that.