Tuesday, 23 April 2019

Pay Prosecutors Properly - Justice Demands It

When was the last time you heard a prosecution barrister speak in public? If you're struggling to recall a time, don't worry, they almost never do. A notable exception to this is the BBC's 'The Prosecutors' which is a documentary series following the work of CPS lawyers and, in a few cases,  the barristers that prosecute for them.

In the public mind English and American criminal justice are essentially one and the same thing hence English lawyers decrying the presence of gavels in English media (we absolutely don't use them) and reference to witnesses taking the stand (always called the witness box). One ubiquitous feature of American criminal cases is the running commentary and ready interaction with the media provided by District Attorneys. This does not happen here.

Occasionally in very high profile cases a CPS lawyer may make a media appearance to announce that charges have been brought before solemnly reminding viewers that the defendant is entitled to a fair trial. There will then be an embargo on talking to the press until either there is a conviction when the same lawyer will announce that justice has been served or there is an acquittal and a terse announcement made that the jury's verdict is respected. These media appearances are carefully prepared or even scripted and focus on the facts and absolutely do not function as commentary or an opportunity for opinion.

You will never, ever hear from the barrister that actually prosecuted the trial in court. There are a number of reasons for this:

1. The vast majority of prosecution barristers are independent, self-employed lawyers that belong to a chambers. They are not employed lawyers of the CPS. The CPS does employ advocates but they are comparatively few in number and when they prosecute in court there is almost always a reviewing lawyer responsible for progressing the case but not presenting it in court. Barristers like me act as agents or hired guns. It therefore stands to reason that when the media are spoken to it would be by an employee of the state's prosecution agency and not by an agent.

2. Another reason why you never hear from prosecution barristers is that most of them take their self-defined role as ministers of justice very seriously. This slightly precious concept is encapsulated in the maxim: the Crown suffers no losses and wins no victories. In other words when you prosecute you're not in it to win it you are there to ensure that justice is achieved and if that results in an acquittal then you have done your job. There is a concern on the part of many that engaging with the prurient interest of the media in some way taints justice with a result that is at best unseemly and at worst puts convictions in jeopardy.

3. There is also a clear understanding that, as a prosecution barrister, it is what is said and done in court that counts. You learn early on in pupillage never to express an opinion in court, it is why barristers should always say 'I submit' not 'I think'. Anyone who prosecutes regularly at a reasonable level of seniority can expect to see their name in the papers, often misspelled, especially if the case involves a celebrity or a scandal but when the judge rises the shutters come down with the journalists.

This post is no plea for prosecutors on primetime but it is a cautionary note. Just because you don't see prosecution barristers and just because you don't hear them doesn't mean they aren't there doing a very serious and vital job. Unfortunately the importance of that job is not reflected in the pay. If you have been reading this and thinking it weird that the CPS uses outsiders to prosecute the majority of its cases you would be right to think that, but there is one simple reason: money.

When I am sick the CPS does not pay me. When I am on holiday the CPS does not pay me. When I am caring for my child the CPS does not pay me. When I need training the CPS does not pay. When I need to buy law books the CPS does not pay. When I need a laptop with which to present evidence at trial the CPS does not pay. When I need to buy a replacement wig (!) the CPS does not pay. When (if) I retire the CPS will not pay.

If I screw up the CPS can stop instructing me tomorrow. If I annoy the CPS can stop instructing me tomorrow. If I embarrass the CPS can stop instructing me tomorrow. In short what the CPS loses by not employing me it gains in savings and flexibility.

It won't surprise you to hear that prosecution barristers are not, in the main, a radical and militant bunch. Accordingly they have tolerated an unacceptable situation in which fees have been frozen for many years and a significant amount of work goes unpaid. The Criminal Bar Association has sent a list of its most immediately pressing demands to the CPS and a review of fees for prosecution barristers is underway. It must result in meaningful improvements in rates of pay.

The new DPP Max Hill QC is a highly distinguished and accomplished prosecution barrister himself who as a former chair of the CBA is acutely aware of the Bar's discontent over remuneration. Obviously the CPS wants and will demand value for money but when people are not paid properly quality suffers and justice is imperilled. In the hardest and most serious cases the CPS must instruct the most able barristers not just the ones prepared to work for the money offered.

Quality costs but when murderers and rapists might be roaming the streets it's a price worth paying.

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