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.

Prima Facie - What Next?

Looking back on nearly 10 years of blogging I've noticed that a topic that I've written about even more than underfunding of the criminal justice system is serious sexual offences:

2014 - prosecution of rapists

2016 - saluting the courage and remarkable eloquence of Brock Turner's victim

2017 - expressing concern about video recorded cross-examination

2017 - reviewing Nina Raine's National Theatre play 'Consent'

2018 - calling for immediate transcription of witness testimony for juries

2019 - explaining why mobile telephone downloads are so important

2020 - reviewing the utterly extraordinary 'I May Destroy You'

2021 - expressing concern (again) about video recorded cross-examination

I keep coming back to it because it is one of the most sensitive areas of the criminal justice system and because it's an area where I believe many victims are seriously let down.

The simple part of the problem relates to funding and its lamentable shortage. In an underfunded system the following things go wrong:

i. Victims encounter inexperienced or insensitive police officers

ii. There are delays and shortcomings in forensic scientific testing

iii. There are delays and shortcomings in the consideration of mobile telephone and other digital media evidence

iv. There are delays and shortcomings in the gathering of 3rd party material (records not held by the police)

v. There are delays and shortcomings in the provision of case files to the CPS

vi. There are delays and shortcomings in the charging process

vii. There are (massive) delays in the court process

viii. There are shortcomings in trial advocacy

In a properly funded system there is a sufficient supply of SOITs (specialist sexual offence officers) so that victims don't have to interact with police officers who have no knowledge or understanding of sexual offences. Comprehensive scientific evidence is swiftly analysed. Such mobile phone analysis as is proportionate and necessary is conducted promptly with phones returned immediately to victims. 3rd party material is rapidly accessed and scrutinised. Files submitted to the CPS are ready to charge upon first submission. The CPS has enough specialist prosecutors that charging decisions can be made within days of receipt of a new file. Trials (and not video recorded cross-examination) take place within a few months at most of charge. All advocates involved in the trial are experienced specialists in serious sexual offences.

These are all issues that money can solve. But the more complicated question is what shortcomings there are or might be in a perfectly funded system. Last night I watched in the cinema a broadcast of the hit West End play 'Prima Facie' starring Jodie Comer. If I was a secondary school head teacher I would be campaigning for it to be shown in schools and indeed the production has partnered with an excellent charity Schools Consent Project which goes into schools to explain and discuss consent from a legal perspective.

You can read any review you like for a full analysis of how utterly transfixing Jodie Comer's performance is. This post is not intended as a review. Suffice it to say it is a play of real significance. It also does something I have never seen on stage or screen before which is show the backstage of cross-examination. Its opening is a riveting real time commentary on a cross-examination while it is taking place. This play really lifts the bonnet on how (some) barristers think and how they service the criminal justice system.

One recurring theme is the concept of legal truth. The truth that emerges in court and how it's got at. The adversarial process is about identifying weaknesses in the other side's evidence and exposing them. Inconsistency often lies at the heart of that process. Where inconsistency is the product of deceit or an advertent desire to mislead then that exposure serves justice. Where inconsistency is the product of trauma then it may have the opposite effect.

Anyone who has prosecuted or defended serious sexual offences for a long time will have been in at least one case where the defendant has walked out of the dock at the end of the trial leaving behind a nagging sense that they should have left court by a different exit altogether.

The burden and standard of proof really bites in sex cases. When something has occurred between a complainant and a defendant in private it does not suffice merely to believe the complainant, the jury has to be sure that their account is the accurate and truthful one. It is not difficult to see how quickly a doubt becomes a reasonable doubt in such circumstances.

For a genuine victim of a serious sexual offence that means, at best, being called mistaken about their trauma in public and, at worst, a liar. Critiquing that process, as 'Prima Facie' does so devastatingly, is a legitimate exercise. But if it is not to be a redundant exercise realistic proposals for improvement need to be made.

We could:

i. Shift the burden of proof - defendants would have to prove consent was given

ii. Shift the standard of proof - juries would need not be sure to convict, they could be satisfied on the balance of probabilities (more likely than not)

iii. Abandon the adversarial trial process entirely and replace it with an inquisitorial process.

English criminal lawyers balk (with good cause in my opinion) at all of those possibilities. I've yet to read a really constructive list of proposals as to what changes could and should properly be made that doesn't amount to a (generally unevidenced) assertion that juries are habitually resorting to myths and stereotypes or that barristers are engaging in the kind of demeaning and bullying cross-examination that was forbidden years ago.

I think there is a useful debate to be had about the propriety or benefit of an increased use of expert psychological evidence in such cases. A combination of funding constraints and the impermissibility of expert commentary on the ultimate issue (is the complainant giving a truthful account) has militated heavily against the use of such experts hitherto. But an analysis of the complainant's conduct, demeanour and responses to an incident and its aftermath seems to me to be a proper matter for expert opinion.

I hope that 'Prima Facie' will prompt such a debate that transcends simply the demand that something must be done.

An Appeal to the Lord Chancellor

It is a marker of privilege to have the opportunity to reflect upon why it is you do what you do. And by that I mean literally how you earn your living. The vast majority of the world's population have little or no say or choice in the matter; they do what they must to feed, heat and shelter themselves and their family. If, however, you are granted that privilege, if you have a choice, it is often not an easy choice. What is your motivator - money, meaning, travel, flexibility, development, connection?

In the main we don't spend much time reflecting upon the motivation of others for doing what they do. That's a matter for them. The glaring exception to that general rule is politicians. Politicians spend their entire lives having their motivations questioned, doubted and scorned. So much so that starting with an assumption that politicians act in good faith and in accordance with their conscience seems the outlook of a child or a lunatic. I can only begin to imagine how wearing and depressing being the object of such second guessing must be.

Being at the receiving end of that torrent of cynicism must make it very difficult for politicians to avoid sinking into the quagmire themselves. Such musings lead me to The Rt Hon Dominic Raab MP, Deputy Prime Minister, Lord Chancellor, and Secretary of State for Justice since 15 September 2021 and Conservative MP for Esher and Walton since May 2010. What motivates this man of many jobs? What gets him out of bed in the morning?

If his proposed revamp of the Bill of Rights is anything to go by it would seem that the preservation of jury trial is one such thing. A totemic cornerstone of Britain and British values. How then does one reconcile that avowed aim with the reality on the ground in the criminal courts. It's easy to forget that Mr Raab has only been in post since last September. Or should that be posts because, as his job titles suggest, he is a very busy man. Now is not the time to query whether the Lord Chancellor and the Secretary of State for Justice should be the same person nor whether being the Deputy Prime Minister is more than enough of a job in itself.

It is, however, the time to query and perhaps try and predict what the Lord Chancellor (as a barrister my preferred of his job titles) is going to do about the crisis in the criminal courts. And believe me they are in crisis. A backlog running to 60,000 cases in the Crown Court is a symptom not of a system sclerotic but of a system shattered. Contrary to what you might hope or believe or assume we do not currently have a functioning criminal justice system in this country we are pretending at one and barristers have, I regret to say, been participants in that pretence.

In 2014 we striked (struck?). In 2014 I was also chair of the Young Barristers' Committee which gave me a ringside view of Bar politics coming into direct conflict with Politics politics. It will not surprise you to hear that behind the public pronouncements there was substantial and ongoing dialogue between the CBA, the Bar Council, the Circuit leaders, the solicitors' profession, the judiciary and the MOJ. Mercifully, for my sanity and any vestige of what passes now for my family life, I am after a decade or so on the Bar Council and Criminal Bar Association well out of it. I remain, as every barrister should be, endlessly admiring of those that have entered the fray on our behalf.

That means I have no idea now what dialogue is taking place off stage. However I have a very disquieting sense that it may be much less than it should be. Many, if not most criminal barristers are nonplussed at the apparent lack of harmony between the pronouncements of the CBA and the Bar Council. As our trade union the Bar Council, in my personal opinion at least, needs to be much, much more vocal in spelling out to the government what the consequences of a collapsing criminal Bar will be for society.

But back to the LC. He has publicly regretted the action taken by criminal barristers. There is certainly no word of acknowledgement that any of our concerns are well founded, still less has there been a public offer to sit down with the leaders of the profession to discuss those concerns. I am going to assume that he acts in good faith. That his reason for being an MP is that he wants to do right by his constituents and by society more widely. He owes a duty to taxpayers, of course, to spend their money prudently and without waste. Insofar as he is responsible for the administration of the criminal justice system that appropriately entails getting the best value for a functioning system that he can.

But the system is not functioning and it has not been for some years. Even before any action commenced trials were being listed with no advocate available to prosecute them or sometimes defend them. A few years ago such a situation would have been absolutely inconceivable. Defendants in custody now spend months beyond what used to be the statutory time limit for pre-trial detention awaiting trial. Trial listings are now an unholy amalgamation of a tombola and the hokey-cokey. The ever shrinking court estate is constituted of collapsing, stained, shoddy and frankly disgraceful buildings.

That is why I describe it as pretending at a system and barristers as (however creditably) aiding and abetting that pretence. If you're not a participant in that system all of this will have been happening out of your sight. But ask yourself this - When did you last get to have a face to face GP appointment? Something seismic has happened in the provision of family health services and that will be obvious to you. That same something is happening to the criminal justice system and barristers are desperately trying to stop it.

Many criminal barristers have already or will vote with their feet. And that is to just stop. Whatever drew them to the Bar is no answer to the implacable financial reality of not making a living. Of course new recruits still come. The Bar, justice, jury advocacy still appeals and always will. But when barristers leave in droves before 10 years call there is no progression through the ranks, no development, no emerging cadre of skilled and experience advocates to prosecute and defend properly the murderers, rapists and terrorists of 10 years' time.

The Lord Chancellor is perhaps not especially concerned about 10 years time. He should however be very concerned about right now because it is right now that criminal barristers are saying just stop. Stop pretending we are making a living. Stop saying the system is functioning. Stop pretending that the Rule of Law is not in serious jeopardy.

I'm going to assume (perhaps in naivety) that Mr Raab is in fact in good faith and that the scale of the crisis he is presiding over isn't wholly understood by him because he is still a relative newcomer to the justice brief. That's why I'm writing this: to make it clear. If he inclines to the view that the outrage of criminal barristers is confected or not in earnest it is vital that he be disabused of that.

The criminal Bar is genuinely livid at what has happened to the profession we love and the system we struggle to uphold. Almost all of us endured a pandemic without any financial support of any description, an unexpected and, for must of us, an unwanted free sabbatical. I queried at the time what the contingency planning was for the criminal courts for disruption such as a pandemic and to this day I have never seen an answer to that question. There is definitely no contingency plan for no criminal Bar. If this action sets in the pretending will have to stop because the courts will literally have stopped.

It is always unwise to try and negotiate with someone with nothing to lose. It's possible that the threat of regulatory sanction or costs figures in the government's calculations as to how criminal barristers will be brought to heel. But if a dog is kicked repeatedly in the head eventually it just wants to be put out of its misery. If a job becomes intolerable and an outside force tells you that you may no longer tolerate it that is a blessed release not a punishment.

So as an appeal to the Lord Chancellor. You make the law in service to democracy. We practise the law in service to justice. Our common aim is service to society. Your office is deserving of our respect and our profession is deserving of yours. Let's do what politicians and barristers alike do best - speak.

Institutional Decline

People embody a nation but institutions make it. Some British institutions are so ancient and unchanging that many people give little to no thought as to their creation and evolution and even less to their future. They were there when they were born and they assume they will be there when they die. For that reason it will be a psychological shock to many when Prince Charles ascends the throne because the Queen is, uniquely in British terms, a person and an institution. 

Optimists slip easily into complacency and cynics into fatalism. When it comes to the safeguarding and preservation of institutions both types can cause a lot of damage. Optimists assume that all will be well because all was well and cynics assume all will be awful because all always was. 

There are many countries in the world that know either no meaningful institutions or such institutions that exist totter on the shakiest of foundations or are riven with corruption. When the Soviet Union ceased to be so too did the institutions of Communism. We in the West, so relieved at its extinction, failed to pay much heed to what succeeded them. 

Indeed, Britain’s move to a service economy left us sitting pretty to offer our venerable and incorruptible institutions to newly rich Russians looking for a reliable place to conduct their business and litigate their disputes. Many commercial lawyers have had their second homes and children’s school fees paid for in this way. 

The reason why rich Russians used our courts and our banks and had their homes here was not our concern. And now it is. The events of the last few days could not more clearly illustrate how utterly extraordinary it is that we permit foreign political donations. How was this allowed? Why was this tolerated? What was expected in return?

 

Russia is not like here. It’s not necessary to have been there to know that. But the extent to which its citizens can become the arbitrary victims of the state is something that alarmingly few British people understand, it being so far outside their experience and comprehension. 

Institutions require unceasing support and vigilance. Those peopling them must understand their history and their processes and commit to their renewal. They do not exist by chance nor by goodwill. Money represents the biggest threat to institutions. Too little of it and the functioning of institutions deteriorates until they fall into chronic dysfunction. Existing in name only. Too much money from the wrong sources and institutions also start to fail but they fail in a different way. They succumb to a cancer of impropriety and vested interest which eventually leads to a stripping of legitimacy. 

Sadly, there’s nothing we can do at the moment to improve Russia’s institutions but there’s everything we can do to improve ours. That will require not accepting money from the wrong places and ensuring that we spend enough in the right places. Otherwise my institution, the Criminal Justice System, will lose any claim to justice and what would be left behind would be just criminal.

The Romance of the Robing Room

 

When I was a young barrister I would sometimes appear at Bow Street Magistrates' Court (now, as for numerous former courts, an eye-wateringly expensive hotel) and when the hearing was over I would wander across the road and watch the Royal Ballet in rehearsal. Back then I knew many of the dancers and eventually I was invited to watch a ballet from the wings. Being backstage for Romeo and Juliet or Swan Lake was an utterly intoxicating experience. The dancers would pirouette off stage smiles beaming and collapse exhausted as soon as they were out of sight. The transition from private preparation space to performance arena is, for obvious reasons, not something that many performers want witnessed. The dressing rooms at Wembley and backstage at Glastonbury must have a very similar feeling.

So too barristers' robing rooms. I occasionally think that the best argument for the retention of court dress is that if we didn't wear robes we wouldn't need robing rooms and if we didn't have robing rooms what then? Robing rooms can be very, very indifferent spaces. Poorly furnished, poky, strewn with defunct case papers. Notoriously one of the robing rooms at Snaresbrook sported a pair of mislaid dentures for months on end.

And yet, irrespective of the quality or dimensions of the physical space, robing rooms are special. It's where barristers don their armour and while that armour may be less substantial or menacing than that worn by gladiators in the Colosseum these are no less adversaries preparing themselves for battle. And, like the locker room at Wimbledon, one of the key features of the robing room is mutual respect for those others that have chosen this strange life of competitive public speaking.

Robing rooms are surprisingly fun, often fun in a way that is bewilderingly at odds with the subject matter of the day's work. They are usually ringing with laughter, or at least they were. The last few years have been very hard on the Bar and hard therefore on the camaraderie of the robing room. Long before Covid arrived the government's relentless austerity drive hit the courts particularly hard. Sitting days were driven down and many court rooms sat empty. The furniture got yet more threadbare and buckets proliferated to capture drips from leaking roofs. 

When Covid did turn up in March 2020 the robing rooms literally fell silent as courts were closed. Since then courts have reopened but are not functioning anything like they did before. The courts are struggling with an almost impossible backlog and individual barristers are swamped with their own personal mountains of unresolved cases. The difficulty of getting trials listed, up and running and completed means that cases, even the most serious cases, are consigned to a purgatory of waiting.

Robing rooms now have the feel of dugouts behind the front line with harried and fretful barristers hoping that their trial actually makes it to a verdict or skittering resentfully out of the door wondering why they've been made to attend court in person just for some dates to be set.

These are spaces where the esprit de corps of the Bar was forged, where some of the most important work on cases took place, crucial negotiations on pleas and the admissibility of evidence were resolved, it's where pupil barristers really learned the job watching their supervisors interact with opponents, friends and colleagues.

Being a barrister is an intensely lonely occupation. You are solely responsible for the decisions you make in and out of court and those decisions can weigh very heavily, sometimes for years after they have been made. The robing room has always been an antidote to that loneliness. A safe space where you don't have to explain the stresses, where everyone else in the room just gets it.

The Bar is in the midst of a financial negotiation with the government to try and safeguard its future and the future, therefore, of English and Welsh justice. The vast majority of us are self-employed and qualified for no furlough funding. Indeed 2020 was for me, and for many others, an unsought for unpaid sabbatical. If robing rooms are to revive the government is going to have to ensure that practice as a criminal barrister remains a viable occupation. Otherwise barristers will continue unrobing in droves and justice will be stripped naked.

Harm Intended v Harm Caused - Sentencing Sexual Offending

 'Let the punishment fit the crime' is a maxim that doesn't take much explaining nor much justifying. We don't sever limbs in this country preferring instead the deprivation of liberty as a more bloodless way of protecting the public with the hope that offenders can be returned to the streets as useful members of society.

What a crime was worth in terms of porridge used very much to be at the discretion of the judge provided he (invariably was a he then) didn't go beyond the maximum sentence or fly in the face of gentle and sometimes not so gentle pointers provided by the big wigs in the Court of Appeal.

Since the advent of the Sentencing Council all that has changed and now anyone can go online and type the crime of their choice into https://www.sentencingcouncil.org.uk/crown-court/ and get a good sense of what the going rate is.

Because every case turns on its own facts there is still some latitude allowed to judges as to where within the guidelines cases should fall and there is always the discretion permitted to them to depart from the guidelines if they can satisfactorily rationalise a basis for doing so.

For most offences the key questions are what's the offender's culpability and what harm has he caused (again, more often than not, it's a he). The public, reasonably, gets very exercised about the harm side of the equation. A killing represents the ultimate and most irrevocable harm. After homicide, sexual offending is generally considered to involve the greatest infliction of harm. When it involves children that is especially so because a. children are more defenceless and b. the development of a child can be irreparably poisoned by sexual offending.

There are many, many sexual offences relating to children to encompass harm actually done to children and harm intended towards children. Before the Internet most child sexual offending related to harm actually done to a child with harm intended to children being a harder offence to detect and investigate.

Since the advent of the online world there have been two main types of offending relating to devices. The creation, acquisition and distribution of indecent images of children. Then there is communication with children for sexual purposes or as a prelude to contact sexual offending.

Indecent images of children fall into three categories for sentencing purposes with Category A images encompassing the most serious level of abuse (penetration and/or sadism). Real children, real abuse, real trauma. Possession of Category A images has a starting point of 1 year with a range of 26 weeks to 3 years in prison. What is significant, from a legal perspective, is that prison sentences up to 2 years can be suspended. What this means, in practice, is that very many men (again, usually men) caught with the most serious images of child sexual abuse do not go to prison, at least the first time they commit the offence.

A disturbing reality is quite how many men view images of child sexual abuse online, the police are only able to investigate and prosecute a fraction. If every offender received an immediate custodial sentence the prison population would be significantly increased. Obviously many judges will imprison a first time offender but, in my experience at least, many more will not.

Turning to the communication offences, communications either inciting sexual activity by children or in preparation for contacting offending unsurprisingly attract, in numerous cases, substantial prison sentences. Much turns on the age of the child and the man (I won't keep including this caveat), and the nature of the activity incited or intended. A 17 year old boy soliciting a topless photo from his 17 year old girlfriend is a crime (yes, even though the of consent is 16) but that will generally be treated much less seriously than offences relating to children under the age of 16, especially where the offender is in his 20s or above. Offences involving children under the age of 13 are treated very seriously because a child under the age of 13 is in law conclusively deemed to be unable to consent.

In the last 10 years there has been a massive proliferation of cases involving vigilante groups posing as children on social media platforms waiting for men to make contact and, if communications turn sexual, then those men will be confronted and the police informed. Often this is a consequence of the man in question making arrangements to meet the 'child' and upon apprehension they are sometimes found with condoms, sex toys, toys and hotel bookings.

In such cases there can be no doubt whatsoever that, in the mind of the offender at least, he was anticipating a meeting with a real child for the purpose of real sexual abuse. The Court of Appeal has made plain (R v Privett (2020) EWCA Crim 557) over the last 18 months that such offenders should be sentenced by reference to the harm intended and not without a focus on the fact that there was no child to be harmed.

However, sometimes the offender makes no arrangement to meet and the vigilantes have to establish who the man is and where he lives or works and they will come to him. Depending on the nature and content of the communications these men too can be in jeopardy of substantial prison sentences. Such cases often attract media attention and the vigilante groups are generally anxious to publicise their activities and case outcomes. Many of the offences are susceptible to the Attorney General's Unduly Lenient Scheme whereby sentences can be referred to the Court of Appeal if considered to be much more lenient than they should be.

The men who engage in these communications are not deserving of much if any sympathy but, in my view, a distinction can and should be drawn between offenders who make arrangements to meet and betray, in the clearest terms, their intention to move offending offline and offenders whose online activity is definitely inappropriate and demands careful judicial examination and rehabilitative intervention but which is more a reflection of psychological immaturity or inadequacy rather than a determined intention to harm an actual child.

At any rate it's a curious feature of current sentencing norms that often men with images of actual children being harmed don't go to prison but most men who communicate with fictitious children do.

Dismissed for want of prosecution

 

A word from 2020 that quickly set everyone's teeth on edge was unprecedented. So many experiences were unique and never before experienced. Much has been written about the unprecedented experiences of the Criminal Justice System during this time and though the novelty of appearing before a Crown Court judge in my living room has long worn off I am no less grateful that in one small way there was an improvement in our way of operating. Brutal irony it is then that this tiny silver lining is in many places at risk of tarnish by an insistence upon attendance for wholly administrative hearings.

As I'm sure any proper lawyer would I'd swap that consolation prize in an instant for an overnight eradication of the backlog. But that isn't going to happen and day by day the pile of unresolved Crown Court trials grows ever bigger. The government recently announced that a cap on sitting days would be removed but that will in no way help if there aren't the judges to try the cases and the lawyers to litigate them.

Justice delayed is justice denied is by now an exhausted cliche rather than any kind of meaningful cautionary maxim. All justice these days is delayed, by months and even years. We need to realise that just as climate change imperils all of humanity there are changes affecting the Criminal Justice System which may very well lead to a cataclysmic updating of that maxim: justice destroyed is justice denied.

If I play Cassandra for a moment I would like you to imagine the following situations. You are gravely ill with cancer requiring immediate surgery. You turn up to hospital for your much needed operation. There are nurses there, the operating theatre is got ready. You wait. Eventually someone comes to find you, the operation won't go ahead that day, there is no surgeon available.

You have family in Australia. You book expensive flights for your family to fly there for Christmas, you plan and you book time off work. You turn up at the airport. You board the plane. You wait. Eventually a flight attendant announces that everyone will have to go home, there is no pilot available that day.

If these things happened to you would be horrified. You would want a refund, compensation, you would be complaining to your M.P., writing to The Times. Now let me tell you that for the last few weeks there have been increasing instances of trials being listed in the Crown Court and no barrister has turned up to prosecute them. I've even seen an example of there being no barrister available to defend one.

This is something that never, EVER happened before. In the magistrates' court if a prosecutor doesn't turn up the defendant can ask for the case to be dismissed. In the Crown Court, a courtroom, a judge and a jury will all have been allocated for the trial and like the start of a match at Wimbledon nothing can happen if one of the players doesn't appear on the court. Unlike Wimbledon there is no bye, another date has to be found and the disrupted lives of the defendant and witnesses are exposed to yet further disruption.

You won't have seen this on the news, you're unlikely to have read about it in the newspapers and you sure as hell won't hear the government talking about it, not when they can noisily announce a new crime of pet theft because the offence of theft theft apparently wasn't good enough.

But this new and, dare I say it, unprecedented phenomenon is profoundly troubling and augurs very ill for the future of our Criminal Justice System. For no barrister to turn up to a trial the allocated barrister has to be unavoidably unavailable. These days that is generally because they are inextricably involved in another case that has over run due to the delays that are bedevilling most trials. But is also has to mean that NOT ONE other prosecuting barrister is available to pick up the case. There are reports of scores of barristers' chambers whole circuits away from a particular court being asked if they have anyone that can accept a returned trial.

In a nutshell there are too many cases and not enough barristers. And yet just a few years ago there were too many barristers and not enough work. The Criminal Bar is not growing. Although it accepts newcomers every year it loses practitioners too. Getting going in the first 5 years after call is harder than ever. New barristers arrive in chambers with levels of debt that would make more senior members of the profession faint. If that debt can't be serviced, let alone reduced, market forces will prevail. Chambers are very public when they take a barrister on and very private when one heads for the exit.

A profession that can not renew itself sustainably will die. When that profession is responsible for administering the Criminal Justice System then justice will die. A time will come when your operation can't go ahead not because the surgeon didn't turn up that day but because there are no surgeons any more with the necessary skill and experience to operate.

You can't train an Old Bailey murder prosecutor in 6 months, you can't even train them in 6 years. Undertaking the most serious and sensitive criminal work is a lifetime's work. If every new barrister bails out due to financial pressure after 5 years where will we be in 15?