Taking the temperature - Cab ranks and the climate

If I had the time or the inclination I would quite like to write a radio play about Edwardian advocates returning from a long day in court prosecuting suffragettes and sitting down to dinner with their wives. Those conversations must have been fascinating. I imagine three types of wife. The first patting her husband on her back while fetching him a tumbler of whisky. The second saying nothing but privately seething. And the third I see as a kind of Mrs Banks loudly rooting for the defendants over the lamb chops. I say wives because the first woman barrister was not called until 1922, 6 years before the vote was extended to all women. I wonder whether any briefs were quietly declined. 

It may seem astonishing in 100 years time, when London may be under water and the climate migrations are measured in the millions, that there was a time that we prosecuted and imprisoned those who sought in desperation to compel radical preventative action, however annoyingly, vexatiously and illegally. It is not given to any of us to know the future but for every climate protester prosecuted and imprisoned there is a police officer arresting them, a lawyer prosecuting them and a judge sending them to prison. They also have friends, families, loved ones and children. They watch the news, read books, see the temperatures too. 

They are also all bound to apply the law as it is, as it is now, not in the future, and as it is now without application of private moral exceptions. The CPS does not force barristers to prosecute, on the contrary it requires those wishing to do so to jump through many hoops before permitting them to do so. But once on their lists if you’re offered an instruction you’re expected to take it. 

Barristers in criminal practice are not much given, in reality, to worrying much about the Cab Rank Rule. There are many who, as a matter of principle, refuse to prosecute. Some rarely if ever defend. Some avoid instructions in sex cases. Most of them are far too worried about making their next mortgage payment or tax bill. The news, therefore, that a number of lawyers were signing up to an undertaking to refuse to prosecute climate protesters was greeted with curiosity and some confusion among many criminal barristers. 

Who was it going to be? Grade 1 prosecutors, or Grade 4, or perhaps a selection from all levels. Or, as it transpired, not a single person that I’m aware of ever having prosecuted a case in the criminal courts. The Criminal Justice System is too important and too central to the functioning of society for those that practice within it preciously to declare ‘Nothing about us without us’. Likewise, the Millennial slap-down ‘Stay in your lane’ is high-handed and unbecoming. Criminal practice and policy is there to be debated by all; even barristers. 

But there’s a good reason why most criminal barristers think long and hard before making public comment, still less formal declarations, about traditional chancery cases, charterparties or abstruse points of patent law. I’m always happy to engage with fellow members of the ‘One Bar’ as the Bar Council likes to call us whether they’re on £2 mill a year or £20k. But I won’t mind admitting that if they want to weigh in on matters criminal they might want to help us point out that it is taking years for rape cases to come to trial and many criminal courts are literally falling apart. 

It's also worth reflecting why people protest. They want themselves and their cause to be noticed and nothing gets you noticed quicker than getting banged up.

Porridge off the menu?

Nothing new under the sun. You practise in criminal law long enough you find that what got abandoned 5 to 10 years ago as being hopelessly outdated is suddenly the great innovation. For example the foundation of the Crown Prosecution Service was all about putting prosecuting on a statutory footing thus creating a clear demarcation between the police as investigators and Service lawyers as prosecutors. And yet it was recently suggested (by some police officers unsurprisingly) that a potential solution to the backlog would be returning charging powers to the police, at least for some offences. Not a good idea in my opinion but also not the theme of this blog. 

Instead the theme of this blog is the backlog and is an evolution of my last post which is that if a solution to the backlog is to be found it is in sentencing policy. It has today quietly been revealed that magistrates’ sentencing powers are being reduced from 12 months imprisonment to 6 months. Which was the height of their powers for all the time I’ve ever been in practice until only a year ago. It was made plain by barristers individually and collectively in the form of the Criminal Bar Association that doubling magistrates’ sentencing powers was a very bad idea and for very good reasons.

A huge amount of the ‘churn’ in the criminal justice system comes about because of low lever offending and short prison sentences. Short prison sentences provide almost no rehabilitative prospects due to the lack of time for any meaningful programmes, education or training. Consequently offenders get banged up for a short unpleasant stay where they get to associate with other criminals and criminality on the inside. Then they get out with their personal relationships fragmented, their family ties frayed, their employment prospects diminished and their likelihood of offending almost certainly increased. 

This costs the taxpayer exorbitant sums of money and means that prison cells are occupied by a vast number of ‘see you next time’ offenders who pose a nuisance to society but not necessarily the threat of serious harm and whose potential to be encouraged, cajoled and educated away from a life of crime is never explored or given up on at the first sign of a setback. 

In ‘normal’ times that is pointless and expensive but it’s tolerated. In the midst of a stuffed prisons crisis this poses immense systemic difficulties. When police cells are being repurposed to house prisoners we have a problem and it’s a problem that requires a solution. And, as I have argued before, it requires a sentencing solution. 

Returning magistrates’ sentencing powers to the status quo ante collapse of the whole crumbling edifice is a small step in the right direction. But it does not connote vision or boldness of the kind that is required to keep HMS Criminal Justice afloat and the HMPs manageably occupied. 

One way of achieving that would be not to halve magistrates’ sentencing powers but to remove them entirely. Sentencing is a difficult part of the criminal justice process. It is part that seasoned lawyers of decades of experience get wrong even with the assistance of Sentencing Guidelines. It might reasonably be asked why we confer the power on enthusiastic amateurs to deprive offenders of their liberty. 

After all it is not English criminal justice practice to give juries a say in the sentencing process so why is this power conferred on the lay magistracy? It would be perfectly possible to reserve powers of imprisonment to District Judge carrying out a specific sentencing role in the magistrates’ court. Or to have a system whereby any offending convicted in the magistrates’ court in jeopardy of immediate imprisonment is committed for sentence to the Crown Court, a court of record in which only professional lawyers are involved in the sentencing process. 

Some might argue that this would be bureaucratic and procedurally burdensome. But would it really be more burdensome to society than the cost of incarcerating thousand of prisoners on short prison sentences when in reality those sentences provide no long terms solution to the risks posed by those offenders. 

We’ve tried most things before but we haven’t tried this. Maybe it’s time we did.

A sentencing solution to the backlog?

Now that barristers are back at work following the end of the action the casual observer might be forgiven for thinking that all is well and returned to normal. If your conception of normal is a backlog running to the scores of thousands and trials being listed with nobody to prosecute or defence them turning up then you would be absolutely right. And these are not speedings trials they are Crown Court cases where the most serious offences are tried by judge and jury.

Ten years ago if a barrister did not turn up for a trial because they were stuck in court elsewhere judicial enquiry would be swift and it would be serious. Letters to the Head of Chambers, the Senior Clerk, in the most egregious circumstances a complaint might be raised with the Bar Standards Board, the profession's regulator.

It was something that simply did not happen because whatever the general unpredictability of a barrister's diary might be the prospect of a clash could and would be identified and something could be done about it. Now if a barrister is double booked trying to find a replacement is like trying to establish the whereabouts of the Scarlet Pimpernel. 

There are far, far too few of us to attend to the thousands of Crown Court cases awaiting trial, many of them having waited literally years. There are reports of retired judges being pressed back into service. More judges and more sitting however is no solution at all if there are not enough advocates. More money, more than was secured by the strike action, is still necessary to grow the supply of criminal barristers (this being especially true for the prosecution Bar which has received no guarantee of parity with defence fees). But barristers, like oak trees, take years to reach full maturity. 

This means that, money or not, the dizzying backlog is going to be with us for years to come. Chaos and delay are now built into the Criminal Justice System and the solution that will solve this crisis needs to be inventive and it needs to be bold.

You don't need to be a barrister or work in the Criminal Justice System to know what is politically palatable when it comes to criminal justice and penal policy. Prison works and more prison works more. That is politically palatable but it is also ruinously expensive and it is the prospect of immediate imprisonment that ensures that many defendants will take their chances with a trial, especially if that trial is months or even years in the future.

It is for that reason I believe that the only way out of this mess is by way of a temporary sentencing solution. There are many crimes that have an immediate and identifiable victim: rape, robbery and murder are obvious examples. Other offences, such as drug dealing, have a negative societal impact but there is no victim named on the indictment. The sentences for such offences can nonetheless be severe and of a sort to deter many defendants from making a clean breast of their wrongdoing.

In my view a workable scheme could be devised whereby for offences such as street level drug dealing or less serious public order offences, for a time limited period, suspended prison sentences could be guaranteed for guilty pleas entered at whatever stage proceedings have reached. In other cases sentence discounts of up to 50% could be offered with an extension to licence periods making up the 'shortfall'.

This would ensure that guilty defendants would still be punished and subject to sanction and scrutiny by the Courts and making such a scheme time limited would galvanise those currently content to watch the clock counting down to a trial that might never in fact take place. I'm in no doubt whatsoever that this would not be politically popular but sometimes what is politically necessary or even essential has to trump that which wins approval from certain sections of the media.

One hand clap for CLAAB

I have resolutely hated being 'on strike' and I have absolutely no doubt that is true for the vast majority of criminal barristers. The Bar is not a job it is a vocation and there is a reason that barristers are 'called to the Bar' when they come into being. A barrister going on strike is in some respects like a priest going on strike; it conflicts fundamentally with their purpose, ethos and instinct.

If I wanted to be rich I would have practised commercial law or gone into financial services. I do not derive my meaning in life from money but from human connection, human interest and human justice. However, I just like every other criminal barrister have to make a living from what I do, hence the action that has been ongoing for many weeks now and appears finally to be reaching a denouement. 

In some respects the clarity and unity of purpose that engendered the action was much easier to maintain when, reprehensibly in my opinion, the previous Lord Chancellor simply refused to engage with the leadership of the Criminal Bar in any way. The entire Criminal Justice System has drifted ever closer to the rocks as a consequence of that obduracy.

That is now the past. The present is that every individual barrister has to make a choice. Accept the MoJ's 'offer' or not. It is a yes/no ballot, it is not a checklist exercise. The CBA does not decide on our behalf, chambers do not decide on our behalf. Every one of us is free and must be free to make that decision. 

And it is not an easy decision and anyone that pretends otherwise is fooling themselves. Is this is as good as it's going to get? Will the door be slammed in our face and will be sent away like Oliver begging for more gruel? How much longer can we as individuals afford to be out of court? Will the patience of the judiciary give out? Will we be overtaken by austerity? Will the Government collapse (again)?

All I know is that I never want to go on strike again and I never want to feel like I need to go on strike again and I am anxious that this proposal leaves open just that possibility. Criminal barristers serve the public but we are not public servants and we enjoy none of the protections that publicly employed people usually expect. No pensions, no sick pay, no holiday pay, no paid parental leave. And most of all no salary. 

Our self-employed status has left us almost uniquely exposed when it comes to our incomes matching inflation and real terms cost of living pressures. Like all self-employed people we are free to walk away at any time and the grim reality is that is what criminal barristers have been doing in droves over the last 10-15 years. The Criminal Bar's leadership is constituted of barristers who give up their vanishingly little spare time to serve the interests of the Criminal Bar. They are not permanently positioned and have the unenviable task of speaking on behalf of a profession of the self-employed.

Accordingly negotiations with the Government on fees do not occur on a statutory footing, they do not occur on an annual basis, the Government is entitled to and usually does ignore requests for more funding until, calamitously, a crisis point is reached and action is taken. That action does not serve the Government, it does not serve us and it certainly does not serve those caught up in the Criminal Justice System but it is the only meaningful manifestation of our desperation.

The Institute for Government has produced an extremely helpful explainer on public pay review:

https://www.instituteforgovernment.org.uk/explainers/public-sector-pay 

It has absolutely no application to the Criminal Bar. We are paid fees per case not a salary per month. We enjoy no annual review of those fees. If the Criminal Bar is to endure let alone thrive the guaranteed establishment of a body that replicates those that exist for so many areas of public employment, not least of all the judiciary, is an absolute pre-requisite for any resolution of the dispute between the Criminal Bar and the Government as far as I'm concerned. The benefit of a percentage increase in fees today will be rendered absolutely worthless if in 5 or 10 years exactly the same fee will be payable. That is a hopeless incentive for me to remain at the Criminal Bar and it will be an absolute deterrent to newcomers and those considering the profession as a career.

We have been provided with proposed Terms of Reference for a Criminal Legal Aid Advisory Board which, in principle, is exactly the sort of body that should prevent Criminal barristers from ever striking again. However I am very concerned about two issues. The first is its proposed membership and secondly is the degree to which the Government will need to take account of its recommendations. If the board members are unpaid or unremunerated in any way there will be real difficulty in securing meaningful long term engagement from the Bar in circumstances where this will be another free call on the time and energy of barristers who have little of either. Furthermore, if there is no meaningful commitment by the Ministry of Justice to follow its proposals then it will be no more than a talking shop.

For me more than any other part of the deal this is what really counts and I'm still weighing up whether what is proposed provides the reassurance I'm looking for.

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.