Wellsprings of Wellbeing - Watery wellness when all around is maelstrom

                                                           

One thing of which I was proud as chairman of the Young Barristers' Committee in 2014 was providing a platform at the Young Bar Conference to a session on Wellbeing at the Bar.  A survey was conducted in October quizzing barristers about the their working lives and levels of stress.  Over 2,500 members of the profession responded providing the Bar Council with a broad and clear and detailed view of what is going on in barristers' lives.  There will be a session at this year's Bar Conference and a seminar on managing stress is being conducted by the YBC later this summer.

At the Bar Council meeting held this morning Robin Allen Q.C. provided a snapshot of the results of that survey and sadly but not surprisingly some of the responses illuminated the real despair some of our colleagues feel.  I am extremely pleased that the Bar Council is taking seriously the peril of stress and anxiety within the profession.  Other major institutions and companies have long been alive to the virtue of Mindfulness within the workplace and the importance of making available really effective and accessible pastoral care to employees and its about time the Bar Council followed suit.

Robin spoke of a concept the name of which I had not heard before but which which will be immediately recognisable and that is Cognitive Renewal.  Every barrister knows that this is no nine to five job and that anxieties about cases can easily pervade every waking, and when things are really bad, sleeping moment.  Furthermore no clerk in history ever suggested to a barrister that perhaps the time was ripe for them to take a holiday and yet it is only through a proper detachment from court, chambers and the papers that a beleaguered whirring brain can be properly nourished, calmed and restored.

That being said in our day to day lives there are so many things that we can do that provide even an essential moment's release from Bar fatigue.  You may have all manner of activities and mechanisms in your own life which fulfil this purpose and, for the avoidance of doubt, I am obviously not talking about alcohol.

For me that escape is swimming.  Not ploughing relentlessly up and down in some chlorinated roped off pool and certainly not neoprene wrapped triathleting but just being in water outdoors under the sun, the sky, the rain and the clouds; in and of nature.  I prefer to do this in the Serpentine (above at sunset) where membership of the Serpentine Swimming Club is £20 per year or the princely sum of 5 pence per day.  It is open to all, the facilities are almost non-existent, there is a unisex windowless changing room about the size of a beach hut, the showers are cold, the water is (obviously) unheated and untreated and yet it is paradise to all who swim in it.  And they know it too.

Even in Winter...

Hampstead Heath's three swimming ponds have forever been the North Londoner's favoured alternative to the Serpentine and South London has long enjoyed England's largest freshwater pool at Tooting Bec Lido.

However for those of us for whom aquatic angst annihilation provides an essential release London is on the brink of leading a world beating swimming revolution.  Within days the King's Cross Pond Club will be fully open to the public and I was fortunate enough to sample its delights at its grand opening on Friday evening.  Harassed commuters swarming on and off their sardine cans at St. Pancras and King's Cross now have on their doorstep an idyllic hillock based oasis cleaned naturally by reedbeds.  It has been evocatively described by Jenny Landreth in her Guardian review, a review because not only is it a swimming pond it is also a work of art! 

Most excitingly of all though is the prospect of being able to saunter out of the Embankment gates of the Temple in swimming trunks and have within yards the Thames' first swimming pool.  An inspired trio of young men are looking to construct, just meters upstream of Thomas Heatherwick's Garden Bridge, a floating lido of filtered, heated Thames water.  On 22nd May a Kickstarter campaign to raise £125,000 towards the Thames Baths closes and you can help them over the finish line here.

Whatever your escape is make time for it, never give it up and lifelong wellbeing will be your reward. And very cold feet.

The Wages of Sin - Making Criminals Pay?

It is difficult indeed to elicit much outrage or public sympathy at the news that one of Mr Grayling’s last acts in office was to introduce a ‘menu’ of court charges for convicted defendants.  On the face of it most would think it perfectly reasonable that those convicted of criminal offences should pay a contribution towards the costs of administering the criminal justice system.  However this is a classic example of where political PR and grim reality come into direct conflict.

Most criminals are poor people.  Poor people don’t have much money and criminal poor people are disinclined to hand over such money as they have.  Compelling criminal poor people to hand over money costs money and if the ultimate sanction of imprisonment is deployed it costs an enormous amount of money, almost always vastly more than the sum that is owing.  The effect of all of this is that any sensible person hesitates before imposing financial obligations upon defendants, even more so when they are imprisoned the result of which, of course, is that they are unable to earn any money to discharge their financial obligations.

In 2007 the then Government introduced the Victim Surcharge a statutory levy applied at sentence in all cases on a sliding scale:

£15 Conditional Discharge

£20-£120 Fine

£60 Community Sentence

£80 6 months or less custody or Suspended Sentence less than 6 months

£100 6 months to 2 years custody or Suspended Sentence between 6 months and 1 year

£120 More than 2 years custody 

Many judges in my experience affect ignorance of which sum applies because the whole thing smacks of issuing a parking ticket and in a serious case can seem a farcical and demeaning exercise.  However the absurdity of the Victim Surcharge, never more prominent than when applied in relation to ‘victimless’ offences, pales into insignificance when set against the Criminal Courts Charge: ( https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336085/fact-sheet-criminal-courts-charge.pdf )

This obligatory charge must be imposed by all courts when a case ends adversely to a defendant, from the magistrates’ court to the Court of Appeal.  Interestingly it does not seem to apply to unsuccessful appeals to the Supreme Court, possibly a tacit acknowledgement by those responsible of the utter indignity of the highest court in the land charging the defendant a Ton or a Monkey for having the temerity to bother them.

I have seen some embarrassing and shaming scenes in court but few more excruciating than a Lay Bench at Harlow magistrates’ court ordering a trio of likely lads in the dock to jump and down to hear if they had any coins on them to bump up the sum they would pay on the spot towards the fine imposed on them.  Of course this kind of thing is popular with some but populism does not mean something is right.

Increasingly judge’s sentencing remarks are released in full following sentence in the most serious of cases.  Devastating homicide cases resulting in whole life sentences for the defendant and ruined lives for the bereaved will now conclude with the judge ordering the defendant to pay £1,200 towards the expense of trying him.

In a tiny concession to realism there is of course a get out for impecunious criminals as the Criminal Courts Charge states:

‘If after 2 years you have: made best efforts to keep up with the payment terms of any other financial impositions and the criminal courts charge and; you have not been convicted of any other criminal offences during that period you may apply to the magistrates’ court for consideration to write off the criminal courts charge.’

Accordingly it will not be long before a whole life tariff murderer gets a day out of prison to waste the time of the magistrates and public money for the hearing in order to state the obvious, which is that being banged up was something of an obstacle to finding the readies to discharge the Order.  It is little exaggeration to imagine a future where there will be meters on police cars and cell tariffs at Booking In.

Sentencing is a solemn affair and rightly so.  It is perhaps the point at which the dignity of justice must most vigorously be preserved.  Turning judges into traffic wardens demeans victims, the defendant, judges and justice itself.  These charges are wrong in principle and will be costly in practice.

Incitement to Racial Hatred - A little Reminder

Incitement to racial hatred is not an especially commonly prosecuted offence.  It is what is known as an inchoate offence (inchoate being one of those extraordinary legal words that is almost never encountered outside the courts), that means that it is the potential effect of the defendant's behaviour on others that is of interest.  It has been a specific statutory offence for nearly 30 years since the Public Order Act 1986 which, by virtue of section 19, created an offence triable either way:

19.— Publishing or distributing written material.

(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if—

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

(3) References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public.

Triable either way means it can be tried in the magistrates' court where the maximum sentence is six months' imprisonment or the Crown Court where the maximum sentence is seven years' imprisonment.  When the case first comes before the magistrates' court the magistrate/s will decide whether the maximum sentence that can be imposed there is sufficient in deciding whether to accept or decline jurisdiction.  Alternatively the defendant has an unfettered right to choose trial by jury in the Crown Court.

The CPS website contains full guidance on racially aggravated offences part of which I set out below (http://www.cps.gov.uk/legal/p_to_r/racist_and_religious_crime/):

Incitement to racial hatred

This offence is committed when the accused person says or does something which is threatening, abusive or insulting and, by doing so, either intends to stir up racial hatred, or makes it likely that racial hatred will be stirred up. This can include such things as making a speech, displaying a racist poster, publishing written material, performing a play or broadcasting something in the media.

One of the first things we have to prove for this offence is whether the behaviour is threatening, abusive or insulting. These words are given their normal meaning but the courts have ruled that behaviour can be annoying, rude or even offensive without necessarily being insulting.

We also have to consider whether the offender intended to stir up racial hatred or whether racial hatred was likely to result. Hatred is a very strong emotion. Stirring up racial tension, opposition, even hostility may not necessarily be enough to amount to an offence.

Sometimes it may be obvious that a person intends to cause racial hatred, for example, when a person makes a public speech condemning a group of people because of their race and deliberately encouraging others to turn against them and perhaps commit acts of violence. Usually, however, the evidence is not so clear-cut and we may have to rely upon people's actions in order to infer their intention.

If we are not able to prove that someone intended to stir up racial hatred, we have to show that, in all the circumstances, hatred was likely to be stirred up. 'Likely' does not mean that racial hatred was simply possible. We therefore have to examine the context of any behaviour very carefully, in particular the likely audience, as this will be highly relevant.

These offences appear in the Public Order Act 1986, which is generally designed to prevent acts of violence, disorder, harm or threats. Although it will often be present, the risk of commission of a criminal act of this nature is not essential to prove the commission of an offence of stirring up hatred on the grounds of race.

When people hate others because of race, such hatred may become manifest in the commission of crimes motivated by hate, or in abuse, discrimination or prejudice. Such reactions will vary from person to person, but all hatred has a detrimental effect on both individual victims and society, and this is a relevant factor to take into account when considering whether a prosecution is appropriate.

It is essential in a free, democratic and tolerant society that people are able robustly to exchange views, even when these may cause offence. However, we have to balance the rights of the individual to freedom of expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.

As these decisions involve questions of public policy, a specialist team of lawyers based at CPS Headquarters reviews the police file in all such cases and decides whether there is enough evidence. In addition, a case of incitement to racial hatred cannot be brought without the permission of the Attorney General, who is the senior Law Officer for the Crown.

The law only covers acts that are intended, or are likely to stir up, racial hatred. Whilst the definition of what constitutes "race" or "racial" is wide, it is clear that it does not cover "religious" hatred.

Incitement to Racial Hatred - Part III Public Order Act 1986 

Article 10 of the European Convention on Human Rights [ECHR] allows freedom of expression save in certain limited circumstances. These circumstances include the offences contained within Part III of the Public Order Act 1986 (ss 18-23). 

Additionally, Article 17 of the Convention states: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." Relevant case law includes Glimmerveen and Hagenbeek v Netherlands 18 DR [1987] and Kuhnen v Germany 56 DR [1988]. 

For an offence to be committed under any of these sections of the Public Order Act 1986, there has to be one of the acts described therein: it has to be "threatening, abusive or insulting", and it has to be intended to or likely in all the circumstances to stir up racial hatred. 

The words "threatening, abusive or insulting" are to be given their ordinary meaning and case law dealing with other provisions of the Public Order Act 1986 can assist with this. 

Racial hatred is defined in section 17 of the Act. The prosecution must prove that hatred was intended to be stirred up or that it was likely to be stirred up. Likely does not mean that racial hatred was simply possible. We therefore have to examine the context of any behaviour very carefully, in particular the likely audience, as this will be highly relevant. 

These offences appear in the Public Order Act 1986, which is generally designed to prevent acts of violence, disorder, harm or threats. Although it will often be present, the risk of commission of a criminal act of this nature is not essential to prove the commission of an offence of stirring up hatred on the grounds of race. 

When people hate others because of race, such hatred may become manifest in the commission of crimes motivated by hate, or in abuse, discrimination or prejudice. Such reactions will vary from person to person, but all hatred has a detrimental effect on both individual victims and society, and this is a relevant factor to take into account when considering whether a prosecution is appropriate. 

It is essential in a free, democratic and tolerant society that people are able to robustly exchange views, even when these may cause offence. However, we have to balance the rights of the individual to freedom of expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others. 

All such allegations are by their very nature highly sensitive. For that reason, and to ensure a consistent approach, any allegation under this legislation, must be referred by the relevant CPS Area to the Special Crime and Counter Terrorism Division (SCCTD). Referral means the submission of a report which is sufficient to enable SCCTD and the Area to have an informed discussion about where the responsibility for the case should lie. 

When an Area becomes aware of such a case, it should be referred to SCCTD within seven days. If it is decided that the case should be prosecuted as an offence of incitement to racial hatred, SCCTD will take over the conduct of the case from the Area. If SCCTD considers that it is clearly a case where incitement to racial hatred does not apply, the case should be returned to the Area within seven days of that decision being made. 

If SCCTD decides to deal with a case, the file is held there and dealt with there. Thereafter, cases can only proceed with the consent of the Attorney General. 

The law only covers acts that are intended, or are likely, to stir up racial hatred. Whilst the definition of what constitutes "race" or "racial" is wide, it is clear that it does not cover "religious" hatred.

One of the more recent leading cases on the section is R v Sheppard [2010] 1 Cr. App. R. 26 which concerned the prosecution of two men for publishing racially inflammatory material in which material casting doubt on the holocaust and containing abusive racial remarks had been published on the internet.

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.