Wednesday, 13 May 2020

Justice Calls Family Enthralls


I've never been handcuffed. An unsurprising statement from a barrister you might think but more than you may guess have seen the back seat of a police car. Often people fight violently when being arrested but very often they go quietly. I've often wondered what it must feel like experiencing that immediate loss of liberty. The first time, as for many things, must be frightening and unknown but I can easily imagine how quickly 'here we go again' sets in. The sensible thing, no doubt, is to surrender. The state has taken over and you'll have to navigate the river as best you can rather than perish trying to swim against the tide.

Lockdown is not, in important and obvious respects, the same as being locked up but it is nonetheless the case, for the vast majority of people, that their liberty has been constrained in a way they will never have known before. In my case I have had the good fortune of experiencing this with my wife and children. 

It is often said of the early years that they go so fast and it has been an unexpected bounty for me that I have been able to be present all the time for these days, weeks and months with my children. But sometimes serving the sentence is not the hard part, the hard part is release and the obvious question: What now?

I am both fortunate and unfortunate in my profession. Being self-employed I am not eligible for furlough I also, however, fall outside the government's scheme to assist the self-employed. Lockdown has essentially rendered me unemployed BUT barring total cataclysm my job is not going anywhere. The administration of justice is part of the key work of society even if contempt and indifference has often felt like its reward.

Practice as a barrister is to live your life to a constant drum beat. That drum beat represents the pressure of your caseload. Sometimes it's a gentle tapping on the snare, other times it's a relentless pounding on the bass drum keeping you awake half the night or worse. The thing is it never stops but since March it has. And suddenly there was bird song and breathing and children's laughter.

The announcement of the resumption of jury trials represents a liberation from lockdown. It is extremely unclear at the moment whether this will be a meaningful return to work in the near future or months of a trickle of carefully selected cases. There are literally thousands of cases and victims, witnesses and defendants waiting to see their day in court.

It is going to be essential that the courts have careful regard to listing cases in such a way that barristers with caring responsibilities can make themselves available. The courts may also have to hope that barristers who have been fully present in their family's lives, often for the first time, want to make themselves available.

Wednesday, 6 May 2020

Barred from the Bar - strait is the gate and narrow the way to pupillage


The Bar is not for everyone and not everyone is for the Bar. Ostensibly it should be heartening that there is such a profusion of candidates for pupillage but sometimes when I see the metaphorical queue round the block I feel like one of those soldiers in a war movie trudging dead eyed from the front line past springy recruits straight out of basic training.

It is a grim reality of many mini-pupillages at the Criminal Bar that as much time is spent in warning off as in pointing the way. A useful maxim for any barrister, as for anyone wanting to walk through life with clear eyes, is cui bono. In the case of the BPTC providers the answer is simple: they do. Every year they recruit vastly more students than will ever win pupillages.

For many of those students it's not just that they aren't in the race they aren't even in the stadium. And whose job is it to tell them that? The answer is it's ours. In the sift. When there are 100 applications per place there are going to be many, many disappointed people. A proper chambers will have a marking scheme (I am very much in favour of that scheme being made available to applicants) and a proper chambers should be ready to provide a rejected candidate with the result of that scheme. 

But nobody can or should expect fully fleshed career advice from that exercise. The barristers marking those applications are doing it for free in whatever time they can carve out of their practices and their domestic lives. Applying for pupillage is a very stressful experience which, at the time, may well be the most stressful experience of a candidate's life. However its stresses are but a fraction of those that bear down on you in the cells of the Old Bailey advising a client looking at decades in prison or prosecuting a multi-handed case against Silks on the war-path.

When you apply to join a criminal chambers imagine you are looking to step on board a ship in a storm from which the last lifeboats were cut away some time ago. The interview panel sitting opposite you is not screaming in your face because they've been weathering that storm for a long time and because they are professionals and because the ship isn't going anywhere without new crew. But don't be fooled by the languid elegance of the Inns of Court or anything you've ever seen on television. The Criminal Bar was in crisis BEFORE Covid turned up, God knows what it's going to look like in the aftermath.

Learning to overcome the sting of rejection in applying for pupillage is in fact a key learning experience for practice where every day someone is telling you in public that you are wrong on the facts, wrong on the law and where every case has a loser. Few boast about this on their chambers websites or in public but many barristers and judges endured multiple refusals on their way to practice. It took me three attempts to obtain a tenancy.

However saying it's a tough job for tough people is no answer. Resilience can be learnt, it can be taught and it can be fostered. Likewise nobody is immune from mental health setbacks and suffering a bout of mental illness is no disqualification from the job at all. Indeed it is likely to make for a more empathetic practitioner given the family circumstances of so many of our clients.

If you think a chambers that has rejected you is falling short don't be shy about saying so. However think carefully whether the solution is expensive and difficult or free and easy. If the former there's your answer if the latter perhaps, in missing out, you didn't miss out after all.

Wednesday, 22 April 2020

Demand a New Normal - Sort Out England's Courts

When I started as a barrister, in the 21st century, I along with the other newbies received a pep talk on dress and appearance. Except this wasn't a pep talk it was the 10 Commandments. Highlights were that pupil barristers were only allowed to wear white shirts, if we wore trousers with belt loops we had to wear a belt (that is if we HAD to wear trousers with belt loops), waistcoats were essential with double breasted jackets a just about tolerable alternative and, most firmly of all, we were never, ever, ever to be seen public without the collar on our shirt.

Barristers wear expensive and uncomfortable starched wing collars in court that attach to their shirts with collar studs. In the robing room off comes soft collar and tie and on goes the stiff collar and bands. If you ever see a man on public transport wearing a suit and shirt with no collar that is a barrister (although one that would have been drummed out of my first chambers). When I started there were still barristers that wore stiff collars even out of court. These cost at least £2.50 to have specially laundered and starched and should be changed every day. Over a tenner a week just to keep your collar clean.

Appearance mattered because justice is a solemn business, it's why we have clung onto the wigs all these years. Appearance also matters because as a barrister you are your shop window. When the client sees you, when the judge sees you, when the jury sees you they are all making a judgement. Can I rely on this person?

Justice in lockdown is basically on ice. The planes are still taking off but with no jury trials taking place there is nowhere for them to land. Instead there are Skype for Business hearings in which the judges are still in full court dress but, mercifully, advocates are required only to be suited rather than sitting in their kitchen in their wig. It's a month since I went to court and a month since I saw a court building.

My memories are not happy ones. The Crown Courts of England & Wales, certainly the ones I frequent, are in an absolutely shocking state. Leaking roofs, cracked tiles, worn linoleum, collapsing seating, stained carpeting, deranged central heating, sadistic air conditioning, out of order lifts, broken toilets. The list of their deficiencies goes on and on and on.

After witnessing their degradation over years and years I have, to a wearying extent, become inured to how shameful it all looks. However, I often wonder how it must look to jurors, witnesses and even the defendants seeing it all for the first time. If this is what the building looks like what on earth can be the quality of what takes place inside it?

If the last few weeks have taught us anything it is that without proper funding the National Health Service can not, in fact, provide a service. To say that shortcomings brought about by years of austerity have been laid bare is like saying a streaker at Twickenham is a little underdressed. This is just as true for the Criminal Justice System. 

When jury trials eventually resume even the most hardened barrister will be seeing these buildings with fresh eyes and it will not be a welcome remembrance. We have to ask ourselves, when it comes to English justice, whether people should be judging a book by its cover.

Friday, 6 March 2020

Corona Caught to Crown Court - Sick Criminals?


It is surely only a matter of days before the various ministries start to reveal their contingency planning for the full viral onslaught and, ominously, probably only a short period thereafter before they start having to implement them. The sacrifice of sporting events, concerts and museum trips is bound to be something we will all literally have to (hope to) live with.

Other ministries have an entirely different prospect on their hands. We can only imagine how the NHS is going to cope. Justice will not be the first thought or concern of most but one confirmed or even suspected case in a court centre is likely to see court proceedings come shuddering to a halt. It may only be a few weeks before the entire criminal justice system is in a state of total paralysis.

Only time will tell what crime in a time of Corona will look like. But something you may not have given a moment's though to is whether Corona could be a crime. In 2018 at Brighton Crown Court Darryl Rowe was given a life sentence for deliberately trying to infect 10 men with HIV. It is a crime to deliberately infect someone with a fatal or life limiting disease. It is, also, a crime to do so recklessly and that should give everybody pause for thought.

I often link to the CPS website in providing user friendly guides to the criminal law in practice. However the Terrence Higgins Trust has an unimprovable guide to how the law applies to those who have HIV and choose not to divulge their status or take the necessary precautions. Have a read of this website: https://www.tht.org.uk/hiv-and-sexual-health/living-well-hiv/legal-issues/how-law-works

Now replace HIV with Coronavirus and you can see how receiving a diagnosis might impose legal obligations upon you that may not even have considered. You may want to self-isolate before the law forces you into isolation for up to 5 years.

Postscript: I am very much obliged to Claire Bradley who has informed me via Twitter that there is already secondary legislation in force that creates an offence in relation to isolation: http://www.legislation.gov.uk/uksi/2020/129/regulation/15/made#text%3DCoronavirus Interestingly the maximum sentence is a fine!

Thursday, 16 January 2020

The revealing lens - Let the cameras in

With the exception of members of the Royal Family few people in society have more cause to distrust the media than Her Majesty's Judges. Convention means that they have historically been obligated to ascribe to the Queen's famous maxim 'Never complain never explain.' This has applied however absurd or inflammatory have been the attacks on them. If, for example, our judges are really 'enemies of the people' one reasonably wonders who on earth their friends are.

So it is that numerous of my learned friends have reacted with groans and dismay to the news that the cameras have finally breached the citadel of the Crown Court. The media are jumping for joy the lawyers are slumped in disbelief that anyone could be so naive as to have allowed this.

At least that seems to be the party line. The Bar Council publicly has welcomed the innovation but much in the same way as John Profumo would have welcomed the editor of The Mirror into his home.

Generally I find myself in keeping with fellow members of the Bar but on this issue I seem to be in a minority. My thinking is that this is, on balance, a positive development. The pitfalls, of course, are obvious:

1. Why expose judges to television scrutiny, it could be dangerous to their safety?
2. Why expose judges to television scrutiny just for sentencing, it provides a partial and incomplete story?
3. What nefarious use could be made of the television footage online?
4. How obvious is it that there will be wilful or inadvertent misinterpretation of judges' sentencing remarks?
5. TV is a circus and the Crown Court is not entertainment.
6. What better things to spend the money on - Legal Aid, police, the CPS, Probation, Prisons, the Courts.
7. How complete will the coverage of cases be?

I'm sure there are others that I am too slow to think of but while it is the default setting of the criminal barrister to assume the worst of everything let's try and think of the advantages:

1. We've not done this before so assuming ill will come of it is just that, an assumption and barristers should not deal in assumptions;
2. The media already wilfully misrepresents the judiciary and its decisions at every turn how can showing judges actually speaking in court make that worse;
3. The criminal justice system is crying out for public attention particularly with regard to explaining itself and more exposure provides a potential platform for that;
4. The public gallery is a quaint throwback to the 19th century. With the exception of a tiny number of cases the public do not come, they do not see, they do not hear and they do not know;
5. A handful of cases will actually have the cameras in;
6. Having the cameras in or the possibility of them may encourage judges routinely to reduce their sentencing remarks to writing which may diminish the number of sentencing mistakes and sentences that need to be appealed;
7. I assume the cost of this will not be borne by HMCTS so expenditure on televising hearings is not money that would otherwise be spent on the CJS;
8. Cameras in the Court of Appeal have not brought about the end of the world;
9. TV has now encroached on almost every single part of life imaginable: sex; death; surgery; royalty; schools. It seems almost absurd for the courts to insist that they should be impervious to this.

Let justice be seen to be done - we have nothing to fear.