Friday, 31 August 2018

The Children Act - A lesson for lawyers

Criminal lawyers deal sometimes with terrible cases involving devastated lives and distressing evidence.  However I always say the family lawyers have it worse.  The reason is that even the worst criminal case that ever happened involved a past event.  Every day that passes is a day further away from that event.  The majority of family law cases involve an event that is unfolding around the judge and the lawyers - a divorce, a child at risk of serious harm, a child gravely ill.  In divorce cases the involvement of the lawyers can sometimes be a fuel to the flames; aggravating not mitigating the event.

As the Charlie Gard case so prominently demonstrated family law cases occasionally involve judges making life or death decisions.  That places an almost unique strain on a human being.  The tragic reality is that the judge in Charlie Gard's case did not have life in his gift.  The somewhat false dilemma at the heart of The Children Act is that Mrs Justice Maye (Emma Thompson) does.  I say false dilemma because it would be an extraordinary judge that would allow a child's death to weigh on their conscience by concluding that respect for that child's conscience should eclipse respect for that child's life.

I am a legal latecomer to reviewing this film, which in parts veers close to melodrama, and I have no interest in commenting on whether court dress was rightly or wrongly being worn except to say that the silliness of wigs always seems magnified on screen and that's before a High Sheriff in full fig makes an appearance.  Despite the heroine of the piece being My Lady not My Lord and some efforts at diversity in the court scenes this film is an absolute vindication for those that believe the law is the preserve of the metropolitan liberal elite.  A posh white judge living in Dickensian gloaming plays the piano to operatic accompaniment in her downtime.  

One thing I will say for any student of the law is that the film exemplifies my belief that it is far more important to do work experience with a judge (marshalling) than it is with a barrister (mini-pupillage).  Watching Emma Thompson scythe through her cases dismissing advocates in front of her brought a grimace of recognition.  What some might call brisk others might call peremptory and, a foolish few, even bitchiness.  To paraphrase 1 Corinthians 13 When I was a barrister, I talked like a barrister, I thought like a barrister, I reasoned like a barrister.  When I became a judge I put the ways of barristers behind me.  Know your judge, know her instincts, know her thinking then you're persuading not provoking

What really interested me about this film though were two lessons learned by 'My Lady' of application to all lawyers and judges everywhere.  The first is a simple lesson to articulate but on occasion fantastically difficult to put into practice.  There is a line between the professional and the personal.  Sometimes it's as obvious as the Great Wall of China sometimes as indiscernible as a white thread on a marble floor.  End up on the wrong side of that line and catastrophic consequences can ensue for you but, even more dangerously, for your client also.

The second lesson is the great missed opportunity of the film.  There are no spoilers in revealing that Stanley Tucci plays the judge's unhappy husband nor that they have no children.  Indeed this provides the backdrop and context for the events that unfold in court.  This part of the film makes it absolutely essential viewing for families, partners and spouses of barristers and judges.  It reveals a domestic strain that plays out for me and almost every barrister I know that is not a child, husband or wife of a barrister.

On a really fundamental level your family do not care how serious, how taxing, how agonising your case is if it is taking you away from them.  In the film the judge is dealing with literally a matter of life or death but all her (intelligent, insightful, caring) husband knows is that it is yet another brick in the wall built between them over 20 years.  

It is the great irony of the film that this formidably intelligent woman who cares and thinks so deeply about families reveals herself to have thought and cared so little about her own.  Like a Michelin starred chef eating McDonalds at home.  She castigates her husband for his obviousness yet does not acknowledge how clearly he signposted the jeopardy her professional focus had brought into their marriage and their home.

In this respect the second lesson is actually the same as the first.  There is a line between the professional and the personal.  If lawyers allow their personal lives to be drowned by their professional obligations they should cry no tears when their nearest and dearest make for the nearest lifeboat.

I know all too well the wrinkled annoyance writ large on her face at her husband's complaining that she is giving her focus to something that is genuinely objectively important but there is a very big diary out there containing the dates of all the weddings, funerals, school plays and family holidays missed by barristers and judges because they were up to their elbows in a case.  It's sometimes said that life is what happens when you're busy making plans: for us lawyers life is often what happens when you're busy making submissions.

Friday, 24 August 2018

Privilege Part Two

Waitrose running out of hummus, your Uber rating taking a knock, that day's Pilates class being full are all classic first world problems.  But a quandary I wrestle with eclipses them all, namely wondering how much privilege I should seek to bestow on my child.  Admittedly this is not a question of Bill Gates telling his children they won't be inheriting his billions because he wants them to make their own way.  Although, interestingly, that has not stopped him from ensuring they have received the best possible education and a reassurance that, while they won't be billionaires, they will have a safety net that the average child could only dream of.

If you are not privileged you don't think twice about doing absolutely everything in your power to provide your child the maximum possible privilege, as much of a head start as you can muster for them.  In truth many privileged people don't think much about this either.  But the fact is that once you're fortunate enough to provide for your child's basic needs you have to make decisions about their more evolved needs.  Education is unquestionably chief among them.  The education you provide your child in your home is, universally, a matter for you as its parent whether you live in Hull or Honolulu.  Conferring privilege upon them in that regard is entirely contingent on how much time, energy and interest you take in cultivating their interests and developing them as a human being.

Some people are so financially disadvantaged that simply providing for their child's basic needs allows them no time for this domestic development.  Some people are so financially advantaged that they outsource what should be domestic development to outsiders and to institutions.  Either scenario is liable to produce a person lacking the benefit of a parent or parents who have been able or willing really to focus on that child and who that child might be.

Every single one of us is born with talents.  Some of those talents are highly marketable, a natural affinity for coding by way of example, some confer a negligible financial advantage, such as being really good at whistling.  Talent is innate but skills are learnt.  The privileged are remarkably adept at ensuring that their children become skilled in a marketable way irrespective of their talent.  Top jobs go to the privileged because the skills they require have been drummed into their occupants from a tender age.  If talent is not nurtured it will never blossom, like the seeds sown on stony ground in the parable, equally if sufficient skills are taught to the untalented they will bear a fruit of sorts like tomatoes forced in English greenhouses.

The privileged understand all of this implicitly.  It is why they spend so much money ensuring their children pass the right exams at the right schools to get into the right universities so they are at the front of the queue for the right jobs.  This is all done whether the talent is there or not.  The counterpoint to all this is that an unprivileged child may be blessed with all the necessary talent but, denied cultivation of the necessary skills, they will pass no exams, go to no university and not even know about the jobs.  Take a moment to imagine, for example, what the world would have lost if Shakespeare had never learnt how to write or Mozart how to read music.

Wanting the best for your child is not wrong.  Being able to give the best to your child is not wrong in the same way that it is not wrong to win the lottery.  However we don't need to look far to see lives ruined by huge payouts.  What you do with your privilege is what counts.  And privilege is not necessarily the same as wealth.  It has always been an odd feature of the British class system that it was possible to be privileged and yet not actually very well off.  Increasingly, however, money does now mean privilege and its lack denotes its absence.  While charity does begin at home when you concentrate privilege solely in your child you inflict a small concomitant harm on society.

The Criminal Bar is, unquestionably, a profession that requires talent but it also requires many skills.  For a majority of barristers gaining access to the Bar entailed some connection to privilege.  A huge resource of raw talent alone is unlikely to propel an aspirant through all the countless hoops that precede entry to the Inns of Court.  This is where those of us who have benefitted from privilege, thereby enjoying the privilege to practise, owe it to other people's children to provide a helping hand.

The Bar Council runs a mentoring service for students in Year 12 & Year 13.  There is no good reason not to volunteer for it.  The student I mentor is so brimful of enthusiasm and he knows that he will have to make the connections that for some of us were provided on a plate.  It costs me nothing but a small amount of time to be a resource and a guide.  The Kalisher Trust has for many years provided concrete financial help to embryonic criminal barristers but also undertakes outreach work teaching children how to construct an argument, conquering their fears of public speaking.  These are the sort of soft skills that the privately educated sometimes don't even realise were inculcated in them and therefore look askance when promising youngsters don't present with the polish of privilege.  Kalisher is always in need of funds so if you're cash rich and time poor why don't you support its work: (and yes that is me modelling a fetching pair of pink trousers).

I remember balking the first time I heard the expression 'check your privilege'.  As time has gone by I have realised that anyone who has been the beneficiary of privilege needs to undergo their own truth and reconciliation exercise.  It's not enough merely to check privilege we need to fully survey and delineate it because unless we understand how we have been advantaged it's highly unlikely we will be motivated to advantage others.  

Ultimately it goes without saying that I want the best for my child but only so that he can give the best of himself.

This is the second part of a post that I have published on both my legal blog Counsel of Perfection and also my parenting blog The Paternity Test because it touches on both my professional and personal interest.

Sunday, 19 August 2018

Privilege Part One

The Bar Council is running a successful social media campaign at the moment titled #IAmTheBar. Barristers from across the country are recounting the adversity they overcame, the long roads they travelled, the deterrents they fended off to be called to the Bar.  The tales make for inspiring reading and hopefully the young and not so young seeing them are persuaded that not all barristers are people like, er, me.

A procession from Eton to Oxford to the Inns of Court misses only a stint in the Guards and a safe seat to avoid giving me the institutional royal flush.  I am the Bar people expect because I am the Bar as it always was.  In fact, as the Bar Council's campaign correctly demonstrates, today barristers are a much more diverse bunch than people and the media give the profession credit for (at least on the publicly funded side).  This is thanks to a short-lived purple patch when Legal Aid was rightly widely available and rightly properly funded.  As the tide has gone out faster than the sea at Weston-super-Mare many commentators have predicted a raising of the drawbridge and a return to the privileged Bar of old.

In one important respect they are wrong.  And they are wrong because of the way in which privilege operates.  This blog is not about the funding of legal aid, I have written about it until I am blue in the face, and the Secret Barrister continues to do so to much more public and beneficial effect than I ever have.

We hear a lot from the privileged.  One of the biggest benefits of privilege is that it gives you the biggest stage.  You don't have to fight to be heard and you assume, by your privilege, that when you speak people will listen.  One topic that the privileged rarely talk about, however, is privilege.  When they do it is often, absurdly, to insist that they don't have it; like a child covered in spots claiming not have chicken pox.  You will no doubt remember the extraordinary claim that Benedict Cumberbatch had been 'held back' by his Harrow education.

I obviously can't speak for Harrovians but the thing about having been to Eton is that you just can't, with a straight face, deny your privilege.  It's like a marquess claiming to be middle class.  That isn't to say that some don't try.  If you live on privilege island you will only meet privileged people and that is a very comfortable place to live, it's surprisingly easy to pretend that there isn't the rest of the world out there.  For the moment you acknowledge your privilege you have to acknowledge the absence of privilege and that provokes some uncomfortable realisations.  Like how you got a bloody great big head start in life.  Like how maybe it wasn't just hard work and brains that got you into Oxbridge.  Like how maybe you weren't the best man (or woman) for the job: just the most advantaged.

And on the subject of women you don't get to be privileged only by going to Eton.  You just have to be a man, or white, or heterosexual, or live in Western Europe, or have a roof over your head.  Every single one of us has some privilege over the next worse off person and there are many, many worse off people.  However, because the conveyor belt of social mobility is only supposed to go in one direction, many of the privileged don't want to know about, still less care for, those less fortunate than them.  You might be in the 1% but unless you're in the 0.1% you're still a worker, still struggling, keeping it real because you only have a Range Rover not a Lear jet.

Have a think about who does the complaining when tiny incremental changes are suggested to reduce the number of trampolines given to privately educated men trying to reach the top jobs.  Quotas for women are unfair, say the men who have enjoyed a 100% quota, quite literally for centuries.  I don't know why they're complaining because they seem to have forgotten the first rule of Privilege Club which is that, like the Hotel California, you can check out any time you like but you can never leave. Privilege is not like your house keys or your passport; it's not something you can lose.  Where it is like your passport (at least until next March) is it enables you to go anywhere and do anything without the hassle of getting a visa, of obtaining permission.

I don't see privilege like an island I see it like a wall.  On the privileged side the sun is alway shining, there is always enough to eat, everybody knows everybody and absolutely nobody wants to be on the other side of the wall, many pretend there is no other side.  On the unprivileged side the weather is very changeable, sometimes there is food sometimes not, there are many strangers some of them hostile, most want very much to be on the other side of the wall and are abundantly aware of how extraordinarily difficult it is to scale.  Think The Wall in Game of Thrones and double it.

On the top of the wall there's an 'I'm Alright's Watch' keeping an eye on the masses but preserving privilege for the few.  From time to time they might dispense the occasional scholarship pour encourager les autres but like a bouncer at Studio 54, ensuring that only the right sort are let in.  Noblesse may sometimes oblige but never forget the divine ordination of the privileged child's favourite hymn: 

The rich man in his castle,
The poor man at his gate,
God made them high and lowly, 
And ordered their estate.

As a privileged person working in criminal law I ascend to the top of my side of the wall (there's a lift) and see what life is like for the unprivileged.  At the end of the day I go home and when I'm being my better self I reflect on my good fortune and wonder at how I can pass some of that privilege on.  When I'm being my worst self I worry about how I'm going to adhere to the second rule of Privilege Club, which is how I'm going to pass some of that privilege on - to my child.

And that rule is why commentators on the social mix of the Bar are mistaken.  Privilege begets privilege or it is repudiated.  It bears its unfair fruit when one generation passes on the leg up to the next generation.  If legal aid won't pay the school fees (and it won't) the privileged won't touch publicly funded work with a bargepole.  It does rather beg the question where the barristers of the future will come from if the unprivileged can't afford to get over the wall and the privileged are scared they might fall off it.

Next week in Part Two - What to do with your privilege? (hint: pass it on).

I am publishing this on both my legal blog Counsel of Perfection and also my parenting blog The Paternity Test because it touches on both my professional and personal interest.

Tuesday, 7 August 2018

Unduly Enlarging Scheme?

Child sexual abuse is an abhorrent crime. Filming or photographing child sexual abuse is an abhorrent crime. Viewing films or photographs of child sexual abuse is an abhorrent crime.  All of these crimes cause harm to children. Not all of these crimes are as common as each other. Nobody can know whether ten times more people view images of child sexual abuse than actually engage in child sexual abuse or whether it is a hundred times more. Whatever the figure, once an image is on the Internet it is there for all who choose to view and see it. And the ugly reality is that a great many people, the vast majority of them men, do choose to find and view these images. Vastly more than are ever arrested or come before a court.

As for all sexual offences the courts have clear guidelines to follow in sentencing these offenders.  The guidelines encompass three different types of offending in an ascending order of seriousness: possession; distribution; and production of images.  The guidelines also encompass three different types of image in descending order of seriousness: penetrative sexual activity; non-penetrative sexual activity; and other indecency.

At the lowest end of the guidelines, possssion of other indecent images, a medium level community order is recommended.  At the highest end of the guidelines, production of images of penetrative sexual activity, 9 years' imprisonment is recommended.  Even a non-lawyer would, I hope, accept that is a very wide range of sentencing disposals sufficient to achieve a just sentencing outcome for almost any kind of indecent images case.

Because people make mistakes, even judges, the criminal justice system allows appeals when sentences are too severe but also when they are too lenient.  However there is an important distinction.  Any sentence for any crime is susceptible to appeal (either to the Crown Court or the Court of Appeal) if the defendant feels the sentence is too severe.  Only a limited number of offences allow an appeal if it is felt a sentence is too lenient, and it is not the victim that brings the appeal, it is the Attorney General.

The Attorney General's Office sets out the procedure here:

A press release issued yesterday reveals that in 2017 the Attorney General referred 173 sentences to the Court of Appeal as being unduly lenient with the result that 137 offenders had their sentences increased:

This is against a backdrop of an ever increasing number of complaints from members of the public about sentences being too low.  Addressing every one of these complaints costs time and money.  These are both resources suffering drought like conditions within the criminal justice system. That being said it is only right that the public have a platform to challenge and query sentences.  Prosecutions are brought in the name of the Crown but if sentencing is not for the public then there can be no public confidence in sentencing.

Unfortunately public confidence in sentencing is a very sensitive topic for those that practise within the criminal justice system.  If social media and below the line commenting is believed there are those that won't be satisfied until the noose and transportation are back on the statute books.  Hot on their heels are the prison is a holiday camp brigade and the any sentence less than 40 years is unduly lenient legion.

There are some respects in which the public are right to feel conned by sentencing.  It is very difficult to explain or justify why it is that when a judge pronounces a prison sentence that the offender will not spend that period of time in prison.  In short it is a money saving fiddle. Prison is very, very expensive and in far too many cases it does nothing to prevent reoffending. More temeperate politicians know that very well but far too few of them are prepared to say so publicly.  

Instead the party line is that prison works and there will be plenty more of it for anyone the public particularly abhors and the public abhors nobody as much as a paedophile.  With that in mind it is difficult for practitioners to welcome the suggestion that the Unduly Lenient Scheme should be extended to encompass indecent images of children:

It is difficult to welcome for two reasons.  First I am not aware of a study that suggests that judges are habitually misapplying the sentencing guidelines for these cases.  If they are not then this would be a meaningless enlargement of the scheme beguiling the public into believing that they have agency in this arena and that suddenly a lot of people who weren't going to prison will be going to prison.  Secondly if it is felt necessary that the prison population should be increased by thousands then there are more politically direct ways of expressing that policy.  The cost and effect of such a policy should also be spelled out.