Thinking About Feeling

A million words have already been written about how the 21^st century has killed privacy.  The rigid demarcation between public and private so instinctively understood and assumed by our forebears is as alien and bizarre to the Selfie generation as the typewriter or the pen as a means of communication.  However an irony inherent in this tsunami of self-publicity is that the masks that society enjoins us to wear are as oppressive as they ever were even if they are not so clearly understood or limited in number.  It is for good reason that Facebook has no dislike button. 

Other than acting the Bar is in many ways the ultimate mask wearing profession.  It is interesting that the number one question criminal barristers face is: How does it feel to defend someone you know is guilty?  Almost no barrister ever answers that question as phrased.  We reply that the Rule of Law entitles every accused person to a defence and our duty is to present that defence without fear or favour leaving our feelings about a case to one side.  As a result it is possible to progress through an entire professional lifetime leaving our feelings to one side.  We rarely wonder, let alone discuss, whether such studied detachment is a good thing for us as individuals.

Barristers, like soldiers, firefighters, police and doctors, see and hear some horrible things.  Emotional self-preservation and dispassionate professionalism demand that our feelings when confronted with such horrors are silenced or contained.  Humour rarely comes darker than in conversations that take place every day in robing rooms up and down the country in a bid to draw the sting from the grimness of the day’s work about to start or just concluded.

An unspoken assessment that occurs in interviews for criminal pupillage is whether the candidate is emotionally robust or detached enough for the work in the years to come.  A thick skin and a fine mind are the qualities sought: can this person suppress their feelings.  As a consequence many barristers appear exceptionally capable of mastering or masking their feelings.  So much so that when the Bar Council announced last year its backing for an investigation into Wellbeing at the Bar (http://www.barcouncil.org.uk/for-the-bar/wellbeing-at-the-bar/)  there was some, thankfully isolated, dissent to the effect that this was a wishy washy waste of money far removed from the proper remit of our professional body.

Something that I have learnt recently however is that attempting to master your feelings is a Sisyphean task.  It is not like learning to play the oboe or speak German because feelings are always there no matter how deaf one tries to be to them.  Of course one can choose to mask feelings but this is a certain road to inauthenticity and estrangement from oneself.  No career is worth this and no profession should demand it.

Of course the vast majority of barristers are emotionally grounded people more than capable of leaving their professional mask safely packed up with their wig in its tin at the end of the day and I know that I can only speak for myself but the truth is a time came when I felt in danger of becoming not the man I am.

Thankfully for me I discovered that it is possible to learn how to feel, absurd though that might sound, and I learnt that during an astonishing week long course called the Hoffman Process.  Others have written much more eloquently than I can as to the benefits it can bring and I don’t propose to describe its methods and means here.  However if you also think you can think but think you can’t feel you might just want to think about it. 

You can find out more here: http://www.hoffmaninstitute.co.uk/

 

Or you can ask me about it directly: maxhardy@hotmail.com

'To Anyone Will We Sell Justice' - The Repudiation of Magna Carta

This morning the Lord Chancellor trumpeted Magna Carta as one of Britain’s greatest exports.  In one word the failure of the Global Law Summit (GLS) authentically to celebrate the legacy of that seminal document was encapsulated.  English law and its attractiveness as a commercial commodity is what this Summit is all about not the genesis of the Rule of Law and fundamental principles of fairness before the courts.

If England processed foreign defendants through its criminal justice system at a price you may be sure that the GLS would be thronged with criminal lawyers.  But of course any and every country’s conception of sovereignty entails retaining responsibility for administering its own criminal justice system.  And so criminal lawyers and other publically funded practitioners are not welcome at this jamboree because we are a cost, a drain; not an asset susceptible to pricing and selling to the highest foreign bidder.

UK PLC does not profit from trying French thieves, Spanish swindlers, Belgian burglars or Russian robbers.  Because we can’t flog our criminal justice system the Government has no interest in celebrating it.  What the Government is extremely interested in is welcoming the moneyed of the world to litigate in London at vast expense no matter how unconnected their disputes are to this jurisdiction.

You may think though that when you sell something that it is extremely important to know exactly what you are selling.  Of course oligarchs are intimately interested in the incorruptibility of the judiciary sitting in the Rolls Building.  But it is short sighted in the extreme to pretend that the integrity of the Bench sitting at Highbury Corner Magistrates’ Court and the quality of the justice they dispense conversely is of no interest.  England is still, mercifully, a country in which people do not randomly disappear from their streets or their homes.  Defendants are not detained without trial and even now those that require representation are entitled to it.  None of those things are enshrined by Magna Carta but they are an important part of the reason why the money of the world has flooded into London in the last decade.

It would be an immensely foolish minister or civil servant that assumed that the Commercial Court matters and the Crown Court does not when foreign litigants engage in forum shopping.  It is lamentable to characterise the dissemination of the principles of Magna Carta around the world as an export as though a price can be placed on it like a crate of bananas or a container full of cars.  Especially because exported commodities and goods are usually fated for consumption and using up.  The day that the Rule of Law is used up in England is the day that we shall have to export ourselves.

Old Charter Young Barristers

My powers of clairvoyance are no better than the next man’s but I would be willing to wager £46.50 (mention hearing fee) that whatever else happens on Friday 8^th May 2015 The Right Honourable Chris Grayling MP, Lord High Chancellor of Great Britain & Secretary of State for Justice will no longer hold those offices.  During my term as Chairman of the Young Barristers’ Committee a great deal of attention and ire was focussed on the person of Mr Grayling.  Not surprisingly politicians in office become lightning conductors for dissatisfaction when things go wrong and bad reforms are implemented.  I was and continue to be wary, however, of expending too much energy on personalities.  Systemic shifts often owe a great deal more to entrenched institutional views than the fleeting intentions of come and go politicians.

And it is extremely difficult to escape the feeling that for many in the Ministry of Justice the Bar, and particularly the Criminal Bar, is a nuisance and a headache.  This is by no means true for all but the diffuse nature of the Bar and its idiosyncratic membership, from a Civil Service perspective, no doubt, makes it a very awkward supplier base to contend with.  Most barristers would observe that inherent in that awkwardness lies the Bar’s greatest virtue: its independence.  Magna Carta was a keystone in the foundation of a state and society where that independence could subsist.

Where it is difficult to absolve Mr Grayling of any blame however is in the timing and composition of one of the centrepiece’s of this year’s 800 year Magna Carta celebrations.  The Global Law Summit in London is scheduled for 23^rd February even though Magna Carta was sealed on 15^th June 1215.  Not to mince words this event has been deliberately timed to attach kudos and attention to Mr Grayling and the Conservative administration in the run up to the election.  Although notionally celebrating and examining the Rule of Law those most at risk of falling out of its beneficent reach are dismayingly absent from its programme as Peter Oborne justifiably excoriated in The Telegraph: http://www.telegraph.co.uk/news/uknews/law-and-order/11331353/The-hypocrites-have-jumped-aboard-the-Magna-Carta-bandwagon.html

What would have been truly interesting and relevant would have been a drafting of a Magna Carta for 2015 and a conference inviting those who would most benefit from such a revision.  But of course such an event would highlight how precariously the fate of the Rule of Law for all hangs in the balance.

One truism that attaches to the leadership of the Bar senior and junior is that there are no easy years and I would like to take this opportunity to pay tribute to my predecessor and my successor as chairman of the Young Barristers’ Committee.  Hannah Kinch of 23 Essex Street was an indefatigably cheerful leader during 2013, better known as the year of consultations.  Her endless good humour was a real inspiration and lesson to me during 2014 when the long anticipated and much vaunted ‘action’ actually occurred.

The Young Bar could not hope for a steadier captain in 2015 than Daniel Sternberg of 9-12 Bell Yard who has an old head on young shoulders and was constantly at my side in the year past when I needed succour, counsel and an amanuensis to ensure I cast no hostages to fortune.

2015 will be a difficult year, very difficult, but Daniel will be more than a match for anything that comes his way.  I will, of course, continue to champion the interests of the Young Bar and any barrister, pupil or student who wants my help is welcome to it: max.hardy@9bedfordrow.co.uk.

Justice is performed not a performance: appearance and reality in English justice.

Legal blogging is an arduous business.  Turn your back for two minutes and such a succession of events occurs that even the thought of mustering the time and energy to comment on them induces paralysing lethargy.  That being said the passage of time permits a wider view to be taken and a joining of the dots.

Since last I posted many things have happened both great and small some of seeming significance and some of actual significance.  Most of them have a bearing on the theme for the year of the Young Barristers’ Committee and of its Conference on 18^th October (tickets here: http://thebarcouncil.sym-online.com/YBC14/): Justice in Jeopardy.

In no particular order the events I have in mind are: loss of catering facilities in Crown Courts; International Weekend; Leveson and Rivlin; creation of a ‘Victims’ Information Service’; Conservative proposals regarding the Human Rights Act; prison suicides; and the Opening of the Legal Year.

I recently returned to practice in chambers following a six month secondment at the Financial Conduct Authority.  Like almost all junior criminal barristers I have been seeking to diversify my practice away from total reliance on courtroom based advocacy work.  This is simple common sense in a world where there is less and less traditional criminal work coming to the Criminal Bar.  It also allowed me to attend to a number of duties arising out of my work for the Young Barristers’ Committee.  These duties include meetings with ministers and the senior judiciary ensuring that the Young Bar is heard.

It is hard to describe the sense of dislocation wrought by a move from the 26^th floor of Canary Wharf’s gleaming tower to my 18^th century basement room in Bedford Row.  Far more than Westminster Canary Wharf feels like the power in the land and it is not just the address of the Ministry of Justice that makes it seem small by comparison.  My perception from my brief stint with the FCA is that it is an organisation that functions and it functions because it is properly funded.  I hope it is not controversial to observe though that it is not just bankers that require or deserve justice.

What more telling contrast then could be imagined than arriving for my first day back at St Albans Crown Court to find that the canteen had closed and that catering facilities had been quietly and unceremoniously withdrawn from courts up and down the land.  I’m not aware of any full explanation for the circumstances behind this development but whatever the details the fact is that this is indicative of failure.  The Ministry of Justice is not capable, it would seem, of running a functioning catering contract.  If the supply of sandwiches at court can’t be guaranteed what other, perhaps more essential supplies, are being jeopardised?

It was thoughts like that which preyed heavily on my mind during the events of International Weekend annually organised by the Junior Lawyers’ Division of the Law Society with input from the Young Barristers’ Committee.  It was commendable that Andrew Caplen, President of the Law Society, addressed the assembled young lawyers drawn from across Europe and beyond about how the Rule of Law is only preserved if there is Access to Justice.  How apt it was that his address was followed by Sir Robert Worcester setting out the celebrations for the 800^th anniversary of the sealing of Magna Carta next year.  It has taken 800 years of hard fought progress won by death, blood and endless endeavour that we can enjoy the freedoms and rights preserved by the Rule of Law today.  Constant watchfulness is required to ensure that those freedoms are not lost, diminished or eroded.  Mr Caplen’s note of caution was echoed in the anxieties of William C. Hubbard President of the American Bar Association speaking about a country where Access to Justice can be even more impeded than it is here.

Two extremely important reviews taking place at the moment are being chaired by Lord Justice Leveson at the behest of the Lord Chief Justice and His Honour Geoffrey Rivlin QC at the invitation of the Bar Council.  The proposals made by these two wise and experienced men have the potential to radically reform the working practices of the criminal justice system and the lawyers that administer it.  These could be changes of real substance increasing efficiency, reducing waste with significant savings for the Ministry of Justice and hard pressed lawyers desperately trying to make a living from publically funded criminal work.

Change of substance is to be welcomed and worked at; window dressing by contrast is a deplorable waste of time and money and I for one met the announcement of the creation of a Victims’ Information Service with a heavy heart last month: http://www.theguardian.com/law/2014/sep/14/chris-grayling-victims-rights-law. Anybody with any knowledge of the criminal justice system will know that there is already in place the Witness Service that attends to the needs of all witnesses whether for the prosecution or defence.  It is very hard to see what this new body will do that the Witness Service, with proper funding, is not already capable of doing.

Furthermore ‘Victim’ is a loaded word for criminal lawyers.  Many trials, particularly of sexual offences, purely contend with the question whether the complainant is or is not a victim of a criminal offence.  Without question the victims of crime should be provided with full and proper support before, during and after the trial process.  During sentencing they should, of course, have a voice although affording them the right to be heard from the witness box is a proposal to be considered with care.  Sentencing, particularly in sex and death cases, is already an emotionally fraught exercise for all involved even judges and lawyers who must conduct themselves with the most dispassionate professionalism.

In particular I balk when politicians talk of justice ‘for’.  Justice is not for anybody it is for everybody.  Victims don’t receive justice unless defendants also receive it.  The public does not receive justice if the criminal does not.

This proposal, though, is as nothing to the alarming policy announcement made in the aftermath of the Conservative Party Conference: http://www.theguardian.com/politics/2014/oct/03/tories-plan-uk-withdrawal-european-convention-on-human-rights. It is very hard to see that this policy is born of anything other than a fit of pique over two particular judgements concerning prisoners’ voting rights and the deportation of Abu Qatada.  Every lawyer, although perhaps not the Lord Chancellor, is familiar with the time worn maxim: hard cases make bad law.

The damage to Britain’s international reputation as a beacon and guardian of the Rule of Law would be incalculable if a Conservative government in 2015 even contemplates withdrawing from the European Convention of Human Rights (the drafting of which was largely in the hands of one of Mr Grayling’s Conservative forebears as Lord Chancellor!), just as Magna Carta is being celebrated.

The shoddy dismissal of the Attorney General Dominic Grieve, a man of clear principle and, as an aside, an assiduous attender at Bar Council meetings, for expressing his misgivings about this ‘puerile’ policy is a stain on the Prime Minister’s reputation.  I have yet to meet his successor and have previously blogged about the folly of attacking him with undue haste but it is alarming in the extreme that Mr Grayling referred to having received ‘strong legal advice’ as to the propriety, workability and, most importantly, the lawfulness of his proposal without having the courage to publish that advice.  All professionals, but doctors and lawyers most of all, will be familiar with those that ignore their professional advice choosing to dispense with their services: their fate quite often is death or imprisonment.

The sense that the Ministry of Justice has not one eye but both fixed mesmerised on the concocted and inflammatory outrage of the tabloid press is only forebodingly confirmed when one considers the alarming jump in prison suicides that has occurred in recent months: http://www.theguardian.com/society/2014/sep/11/prisons-suicides-inmates-ombudsman. Every prison suicide is a realised action contemplated by scores of other prisoners who, while considering such an irrevocable and desperate action, may very well be self-harming in the interim.  Mr Grayling appears to shrug off the concerns of Frances Crook, Chief Executive of the Howard League for Penal Reform, as being politically motivated rather than the urgent counsel of a woman who has devoted her life to ensuring that criminal punishment is decent, worthwhile and proportionate: http://www.howardleague.org/francescrookblog/.

And so finally to the ‘celebrations’ for the Opening of the Legal Year.  It is amazing how many criminal practitioners are completely unaware of this event with still fewer participating in it.  Since time immemorial the commencement of Michaelmas Term has been celebrated with a procession from the Temple to Westminster Abbey where God is enjoined through prayer and hymn to grant the judiciary wisdom in their decision making.  Of course the criminal courts have no conception of university based terms as criminals don’t tend to repair to their villas in the South of France for the Long Vacation.

Like all British ceremonial it involves the wearing of the most extraordinary clothes conceivable.   Needless to say the foreigners love it and the service is packed to the gunwales with chairmen and presidents of Bars from all over the world come to London to be shown that the Brits know how to do things properly.  It is, in the truest sense of the word, a majestic spectacle embodying the confluence of God, Crown and Justice.  But as I sat tucked away in Poets’ Corner I could not help thinking that all this pomp and the soaring anthems rang rather hollow if back at court the next day I couldn’t even buy a cheese sandwich, also, it is perhaps not by chance that QCs carry gloves when wearing full ceremonial dress because the gloves are well and truly off in the fight for criminal justice.

Hearing women's voices

 As a child (just) of the pre-Internet age I remember as a teenager walking through Hyde Park at the weekend and wandering through the good natured melees that used to congregate at Speaker’s Corner.  In the past there were Speakers’ Corners in parks all over London and as long as Hyde Park has been around it has been a place for crowds to congregate with the Chartists using it as a meeting place for workers’ rights demonstrations.

The Parks Regulation Act 1872 enabled the park authorities to supervise public meetings in Hyde Park.  Some mistakenly believe that the freedom to say anything at all at Speakers’ Corner is unfettered; this is not so and Public Order Act offences and offences of incitement apply there as much as anywhere.  That being said it is exceptionally unusual for a speaker to be arrested at Speaker’s Corner and the police generally adopt a benevolently laissez-faire approach to it.

Marx, Lenin and Orwell are among Speaker’s Corner’s most famous visitors.  Even today at the weekends 20 or so speakers are regularly to be found standing on their soapboxes expounding usually on politics or religion, though less so on the other topic that is so frowned upon at dinner parties.  The crowds that these speakers draw are not huge but often a few hundred people can be seen listening in approvingly or frowning in disagreement.

One thing which has not changed much since I was a teenager is the scarcity of women speakers.  This may be because most women have better things to do than inflict their political opinions on indifferent randomers.  Indeed one could reasonably ask what the point now is of Speaker’s Corner if not only for narcissistic self-promotion of the most obvious sort.

It occurred to me on a recent visit that before the Internet encountering women’s voices in public discourse was still very much an exception not the rule.  Only a handful of women were in Parliament, there were few women newspaper columnists, almost no editors, few women television and radio presenters, token newsreaders and weather forecasters set aside.  Women like 19^th century children were seen and not heard.  Even by the time I arrived at university and debated at the Union there were always more men speaking than women creating a cock fighting atmosphere in more ways than one.

Of course another reason why women may now be eschewing the chance to wear an anorak in the drizzle in Hyde Park holding forth to milling tourists is that the Internet now allows communication to but, more importantly, with millions.  At Speaker’s Corner you might see a bit of heckling but in truth it is not a place for dialogue and conversation but a place of ‘Look at me’ and ‘I am right’.

The role of social media and particularly Twitter in facilitating the Arab Spring is already much commented upon but the thing that I have found so amazing about it is immediate access to discourses and voices which I would never have heard before the Internet.  And by discourses and voices I primarily mean women’s voices.  One of the dangers of Twitter (other than its boundless capacity to waste time and its incitement to self-promotion) is that users choose the voices they hear.  Accordingly mindless, misogynistic racists can choose only to follow like-minded morons in a bid to affirm the commonality of their opinions.

However the regrettable prevalence of trolling suggests that this is not a universal approach to the service.  Men can be the victim of trolling but very often it is women who are subjected to vile, personal and threatening abuse.  This can be criminal and there is a danger that some women will be dissuaded from participating actively on Twitter.  However the very existence of trolling as a phenomenon means that women’s voices are being heard regularly by people who historically would not have heard them which I feel must be a good thing.  Furthermore there are millions of users prepared to call out the unacceptability of abusive tweets.  Twitter is a community and connection with like-minded people inspires the courage necessary to participate in public discourse.

No longer is having a public voice a privilege conferred only on the few and the vast majority of that few being men.  I have learnt so much from Twitter about the lived experiences of women and heard narratives which a generation ago were just not shared with men.  Anybody who listens to these experiences could only be acutely conscious that the struggle for equality in society and in the wider world is as fraught, contested and necessary as it ever was.  The richness that comes from exposure to plurality of experience cannot be quantified and whatever Twitter’s shortcomings are providing a soapbox for the world has improved all our lives.

 

An Open Letter to Lord Justice Leveson & HH Geoffrey Rivlin QC

It is incumbent upon anybody with even a passing interest in the proper functioning of the Criminal Justice System (CJS), and frankly that should be all of us, that they do not miss the opportunity to provide their views and opinions on how the CJS could be improved.  You can feed into Lord Justice Leveson's review here:http://www.judiciary.gov.uk/the-president-of-the-queens-bench-divisions-review-of-efficiency-in-criminal-proceedings/your-chance-to-contribute/ and HH Geoffrey Rivlin QC's review here (barristers only): https://www.surveymonkey.com/s.aspx?PREVIEW_MODE=DO_NOT_USE_THIS_LINK_FOR_COLLECTION&sm=n5kCNpCBOsglF4YkHndAG%2biUlkQaNoUx1mWrgWzrddE%3d


This is the letter I have drafted:

These are my suggestions in bullet point for potential ways in which the efficiency of the Criminal Justice System could be improved.  I offer them in a purely personal capacity conscious that many others will have made similar suggestions and acknowledging that many of these ideas are not new and that some may be quite controversial.

Underpinning my observations about improvements to the trial process is a belief that advocacy is the art of persuasion not administration and that if advocates are not in court seeking to persuade a judge or a jury then it is difficult to discern the purpose of their being in court.

 

Pre-Charge

1. Police Bail – this may not strictly be within the purview of your review but prolonged periods of police bail are capable of bringing the CJS into disrepute and of course are capable of building in delay before a case even comes before the courts.  It is unclear what mechanism there is properly to scrutinise why suspects are bailed for as long as they are on a case by case basis.
2. Police Cautions – there has been in recent years occasional media reporting expressing disquiet about the apparent proliferation in the use of Police Cautions and again it is unclear who or what body is responsible for scrutinising whether policies regarding the use of Police Cautions are being properly and consistently applied across the country.

Charge

1. Case ownership – the Crown Prosecution Service appears to have reversed a policy it introduced a number of years ago of dispensing with allocated lawyers.  My perception is that this policy encouraged a problematic abandonment of responsibility for cases.  The CPS requires sufficient resources that every case it prosecutes is ‘owned’ by a lawyer whose name, email address and telephone number is clearly identified to the court and all lawyers in the case.  The same should also be true for the officer in the case and the CPS caseworker.
2. Selection of charges – again this is not strictly a question of efficiency but concern has been expressed that as well as over-zealous diversion from the courts some cases that come before the courts are undercharged in circumstances, for example, where injuries that properly amount to grievous bodily harm have resulted in actual bodily harm prosecutions or where an incident that could properly be charged as robbery is charged as theft from the person.
3. Response to charge – the very recent past has seen a concerted effort to apply Early Guilty Plea schemes across the country.  Might there not be further efficiencies to be derived from inviting suspects at the point of charge to indicate whether they are willing to tender a plea on the spot?  Almost all custody areas have the benefit of CCTV recording which would be a safeguard against any abuse of such a scheme and it would enable magistrates’ courts to dispose of cases even more quickly if defendants appeared before them having already pleaded guilty.

Magistrates’ court

1. Summary trial – others may be better placed to offer suggestions about accelerating the process in the magistrates’ courts and observations I will make about increased use of video links in the Crown Court apply as much to the magistrates’ courts.  Certainly the need for identifiable case ownership by individual lawyers within the CPS would ensure that contested trials in the magistrates’ court proceed much more efficiently.
2. Sending for trial – the abolition of committal proceedings seems to confer a negligible saving if every Crown Court trial now requires a Preliminary Hearing.  Magistrates’ courts should be able to make all necessary directions regarding service of the Crown’s case and the defence statement at the point of sending cases for trial.

Crown court

1. Abolition of Preliminary Hearings – as adverted to above it is unclear why it is necessary for these hearings to take place if all orders could be made by the lower court.
2. Abolition of PCMH – This is a bold suggestion.  However if the premise regarding oral advocacy being the application of persuasion holds true then it would seem there is scope in many cases to avoid a court hearing.  If a defendant wishes to plead guilty following the sending of his case for trial then the onus should be on him and his legal representatives to communicate that intention to the CPS and court at the earliest possible moment to enable the guilty plea to be offered.  If a defendant is resolute in a not guilty plea then his case can be fixed for trial with arraignment occurring at the start of the trial.  A huge amount of the business of a PCMH could and should be resolved electronically and time spent by judges administering cases from their computers rather than the Bench could enable a huge saving to the public purse and to the time of advocates, court staff and defendants.
3. Sanctions – the reason why the abolition of PCMHs sounds such a far-fetched proposal is that the judiciary has learnt from long experience that often the only means of ensuring that judicial directions are adhered to is to compel the parties into the courtroom.  However the existence of a meaningfully applicable costs sanctions regime against the CPS and defence lawyers could well prove to be a much more effective remedy than expressions of judicial wrath from the Bench.
4. Identification and selection of advocate – echoing the earlier observation about case ownership there would appear to be more scope for judges to oversee more definite identification of the advocates for a case at the earliest possible juncture.  Both the CPS and defence firms, much more often than they ought, return cases for trial to the self-employed Bar at a very late stage in proceedings.
5. Video links – when a defendant is in custody it is unclear why pre-trial hearings should not be conducted by video link by default.  Furthermore if advocates have appropriate facilities it would seem to save a great deal of time and money if they were to be able to appear before the court electronically from their homes or workplaces.
6. Warned Lists – it may be that there has been substantive analysis of the savings that have accrued from the operation of a warned list system but it is something that comes as a shock even to barristers practising in the civil law that criminal cases are listed in such a nebulous way.  The warned list system can do a great disservice to victims, witnesses, defendants and, of course, advocates.  A hospital would not, I venture to suggest, countenance saying to a patient that his or her surgery may occur on any given weekday over a fortnight and it is unclear why the CJS believes this is an appropriate way to treat victims of sometimes very serious crimes.  Furthermore case ownership and preparation by litigators and advocates is cemented by the knowledge that a case is fixed in their diary for their availability.  The all too common phenomenon of defendants being absent for trial because they claim they were not warned that their trial had come into the list would be ended.  A number of courts systematically list cases for mention following warned lists in which they have not been reached.  This seems to be a particularly unnecessary use of court time.
7. Trial in absence – defendants are clearly warned that their trials may proceed in their absence and yet this seems to occur only in a very small minority of cases where the defendant does not present himself for trial.  Again in the civil jurisdiction judges would be extremely slow to adjourn proceedings because one of the parties did not present themselves for trial on the date and time appointed.
8. Internet access in courts – I hope the need for this is self-evident.  However beyond the facilitation of communication there are often evidential matters that arise that could be resolved on the spot in the courtroom.  For example in robbery and assault cases when accounts are given of the movements of the parties rather than laborious recourse to maps and printouts a properly equipped courtroom would enable a street view tour to be given to the jury.  It is conceivable that in some cases this could obviate the need for hugely expensive and time consuming site visits.
9. Reviews of the evidence – American judges find it extremely surprising that their English counterparts are called upon to summarise evidence to juries.  Is there not an argument to be made that summings up should be reduced in all cases to writing without evidential reviews?

Sentence

1. Presence of defendant – in cases where judges agree to an application by the defendant to be sentenced by video link would this not save time and money.

Judge a man by his actions not his website - Reflection on the Attorney General

Of many of the appointments made in the Cabinet Reshuffle this week two of the least publicised and celebrated have been those of the new Attorney General and the new Solicitor General.  Dominic Grieve QC MP (58), who was Attorney General, was called by Middle Temple in 1980 and specialises in health & safety law, he became a Bencher in 2005 and a Silk in 2008 when shadow Attorney General.  He was elected in Beaconsfield in 1997.  Oliver Heald QC MP (59), who was Solicitor General, was called by Middle Temple in 1977 and practised at the Bar from 1979 until 1995 when he became a minister.  He was elected in North Hertfordshire in 1992.  They were sacked on Tuesday, apparently without much warning, as it would seem they were due to attend a press briefing later that day.

Replacing them are Jeremy Wright QC MP (41) who was called in 1996 and specialised in criminal law until 2005 when elected to his seat in Rugby and Robert Buckland MP (45) who was called in 1991 practised in crime, is a Crown Court Recorder and was elected to Swindon South in 2010.  Much has been made from legal commentators and practising barristers in the hours that followed their appointment of their comparative obscurity.  Some of the commentary has been sneering and scornful; the wisdom of publicising that scorn is perhaps worth reflecting on.  The principle anxiety that has been articulated is that the Prime Minister has deliberately appointed two very young and comparatively inexperienced Law Officers for their pliability particularly in regard to undefined and as yet unannounced Government plans to renegotiate Britain’s membership of or submission to the European Court of Human Rights.

It has been reported that Dominic Grieve and others  counselled the Prime Minister about embarking on such a course.  If this is indeed the intention I will add my voice to the swiftly swelling ranks of those who are illuminating and delineating some obvious perils that lie ahead.  Obvious to lawyers it is perhaps not so clear to politicians that if you as an individual, entity or country submit to the jurisdiction of a court then you agree to submit to its rulings.  That, of course, pertains whether the court rules in your favour or against you.

If as a country you choose that you no longer wish to submit to a supra-national court’s rulings then you have one option: leave.  The Prime Minister will not propose such a course for two reasons.  The first is that he lacks the political courage for such a stark and bold move.  The second is that he will be well aware of the withering international reaction to a mature democracy, supposedly with the highest regard for the Rule of Law, announcing to the world that because of pique over a few court rulings it wants to withdraw into its shell.  Such a withdrawal would be a repudiation of the notion that the safeguarding of human rights is something that transcends borders and small-minded concerns over sovereignty.

This is an opportune moment to pay tribute to Dominic Grieve who was an assiduous attender at Bar Council meetings even when he was the lightning conductor for the Bar’s anger over cuts to Legal Aid.  He took his role as Leader of the Bar extremely serious as he did all of his responsibilities in the office of Attorney General.  Some have remarked on his voting record which accorded with the Government’s legislative programme.  There is no question that in some quarters it was felt that he could have been even more vocal in warning and working to stop some of the Government’s disastrous reforms in their tracks.  However it is difficult conceive how uncomfortable it must be to have a representative role in the legal profession while at the same time attending Cabinet when the Government and lawyers are at loggerheads.  Necessarily the most important persuading and cajoling takes place out of sight.

If reports of the background to his dismissal are correct then nobody should doubt that he is a man of integrity who, when called upon to sanction heedless political opportunism over hard won safeguards to the Rule of Law, showed his true colours. 

Thus one turns to the newcomers.  Youth is not a synonym for inability.  It would be crass of me to observe that as chairman of the Young Barristers’ Committee I have more practising experience than the new Attorney  General because of itself that proves nothing.  Obscurity is no bar to achieving repute and respect.  Much mockery has focussed on the new Attorney General’s chambers profile and his self-professed familiarity with video links.  The day a barrister’s worth is judged by the hyperbole of his self-publicised qualities is a truly bleak day.  A barrister of genuine integrity ought not demean himself with puffery and advertising and it is a reflection of the age in which we live that we all submit to this diminishing practice.  I judge a man on his actions not his chambers’ website.

I do not believe it to be right that with the now well established mechanism in place for Queen’s Counsel Appointments that the Law Officers should be awarded Silk as a courtesy title.  Silk is won by a rigorous process of examination and scrutiny now and it is no more right that a Government job should carry Silk as a perquisite than it would be to award a Phd.  If the Government chooses to select a junior as a Law Officer that should be clearly stated and understood.

If the Government’s reported intentions are true then this will be a fantastically fraught time to occupy these ancient offices.  Our responsibility as members of the Bar is to support the new Law Officers in their inestimably important responsibility of upholding the Rule of Law.  If they betray that responsibility through action or inaction then they can be judged, not just by us but by every human being whose worth and rights is jeopardised through political expediency.  Until that happens, as every juror should, I am keeping an open mind.