What about the judges?

When I started in pupillage we had a session on dress and appearance. This was extremely prescriptive. Pupils could only wear white shirts. Suits had to be double breasted or three piece. Braces were preferred to belts: 'If you wear trousers with belt loops you MUST wear a belt, that is if you MUST wear trousers with belt loops'. I also read 'The Devil's Advocate' by Iain Morley which was very emphatic about the importance of polished shoes.

When you're a barrister you and what you wear are your shop window. And of course it shouldn't matter how you appear but contrary to what we were taught to do as children far too many people do judge a book by its cover. I used to care so much about this that when I started at the Bar I had my suits made by a genial Greek tailor in a Euston basement. Nearly 18 years down the track I now regularly buy them on ebay.

Over the last few years I've thought regularly about appearances, in particular upon my arrival at court. How is it and why is it that so many courts now look so utterly appalling. Stained carpets. Filthy walls. Broken lavatories. Exposed wiring. Collapsing furniture. Even the Old Bailey, when one looks past its initial marble splendour, is in parts startlingly shabby. The obvious answer is money and not enough of it.

That, however, is not what intrigues me. What I'm interested in is how it was that the court estate was allowed to deteriorate from a state of proper functionality and seemly appearance to the embarrassing squalor that is now almost universally tolerated. Plainly the Ministry of Justice was the cause of this state of affairs and therefore is to blame. But who tolerated and permitted it? I regret to say that the answer to that is we did but so too did the judiciary. 

I can only begin to imagine the contents of communications that have gone from various court centres bemoaning (accurately and legitimately) the wholly unacceptable state of the buildings. But it is plain that such communications have fallen on deaf ears and that must be so or the buildings would not look as they now do.

Most courts purposefully ensure that the parts of the building occupied and used by the judges are kept very separate to those used by jurors and other court users. That makes it possible, I suppose, that some judges don't see quite how embarrassing many public parts of the court building look. But I certainly see it and I wonder what jurors, victims, witnesses and defendants must think. If that's the quality of the building how poor must be the quality of what goes on in the building?

We are now some weeks into the Criminal Bar's action and the government's response to it, other than tersely lamenting that it is happening, has been to ignore it. It is clear that the intention is to ride the action out until the Bar capitulates and returns to court with its tail between its legs. If that is the outcome it will be a disaster. The Ministry of Justice is clearly paying no heed to the patient but firm warnings the Bar is giving about attrition. This is a profession in a state of serious ill health and many barristers, I have no doubt, are weighing their personal futures in it on the basis of what happens next.

If the Bar does not prevail barristers will be a victim of that failure. Expertise garnered from years of practice will be lost to the Criminal Justice System and to justice itself. That will see victims and defendants suffer worse outcomes in criminal cases. Ultimately that is corrosive to societal cohesion and the wellbeing of society at large.

But there will be other victims too: judges. An adversarial Criminal Justice System only works when and because the judge is the impartial arbiter of proceedings. Any proper judge recoils from a situation in which they're in danger of entering the arena. If the prosecution advocate knows what they're doing and if the defence advocate knows what they're doing then that should never, ever happen. And rightly so.

But what must it be to preside over a trial and discover by degrees that one side or the other is being represented by someone who just isn't up to it. They haven't got the experience, they haven't got the knowledge, they haven't got the basic ability. That for a judge presents a very troubling prospect. How can they referee a fair match if one side is Liverpool and the other a non-league team? Then the judge has to start second guessing what is being said and done in court. That is both difficult and it is dangerous.

What if the defendant is unable to source any representation at all or is so dismayed by the quality of representation they are receiving they decide to make a go of it themselves. Then the judge becomes an air traffic controller trying to radio instructions to a passenger trying to fly a plane for the first time or a surgeon explaining over the phone to a member of the public how to conduct open heart surgery. An adversarial system simply does not work without equality of arms and smashing the Bar risks recasting the judiciary as midwives to repeated miscarriages of justice.

My personal view of the government's stance in relation to the Bar is that this is not about cost, this is not about trying to do more with less, this is not about running a functioning system at the cheapest possible price to taxpayers. This is about sending a message that you'll get what you're given and if the whole ship is steered onto the rocks in the process who will notice and who will care. Not the newspapers and certainly not the voters. But judges will notice and judges will suffer in trying to salvage justice from the wreckage.

I've commented before that those outside the law don't sometimes have a full grasp of quite how extraordinary it is that barristers should be striking. It is not one of those things, it is not normal, it is not something that always happens. And of course our self interest is engaged and of course we all want to make a living from practice. But we are trying also to save English justice and the right to fair trial by jury, something which even this government professes (however hollow the declaration) to hold dear. The only thing more extraordinary than barristers being on strike would be if the judiciary joined them: maybe they should.