Counsel of Perfection
Monday 14 October 2024
Tolerating the Intolerable
Wednesday 25 September 2024
Proper prosecutors and Independent advocates
When I was a child we moved into a new house and piled all the boxes into a first floor room. Shortly after that there was a sound like the end of the world followed immediately by a cloud of dust. The ceiling of the room below had quite literally collapsed. And the thing about a collapsed ceiling is that it requires immediate attention. Whatever strains, stresses and priorities were otherwise distracting you it goes straight to the top of the list.
Therefore when criminal lawyers talk about the collapse of the criminal justice system it's actually a bit of a misnomer (although in the case of the structural integrity of some court buildings it in fact is not). We haven't reached the point of literal lawlessness (yet). As the riots showed some cases can still be investigated, charged, prosecuted and sentenced with startling speed when the political and judicial will is there.
But for the rest? Wait a year or four for a charging decision and another two or three for a trial date. And the rest includes some exceptionally serious offences such as rape. Offences which the new government rightly states are a priority. Although in practice they are as much a priority as speedy boarding is for some airlines when it means you'll be first onto a bus that won't leave the departure gate until the last idling passenger has climbed on board.
At the risk of stating the obvious it is unacceptable when a police complaint of rape is made for it to take months for that allegation to be investigated. It is completely unacceptable for it to take years. And yet when lawyers talk about the collapse of the criminal justice system what they actually mean is that the completely unacceptable is accepted, without demur or redress, EVERY SINGLE DAY. The NHS talks about 'Never events'. In the CJS it feels increasingly as though 'Never events' are increasingly becoming 'Every events'.
One thing the new government has made abundantly clear is that there is no money. In that respect they are indistinguishable from their predecessors. Whether that assertion is accepted or acceptable (clue: it's not) any politician that states that position should rightly consider themselves under especial scrutiny for how they choose to spend such inadequate sums as the Treasury has deigned to make available to their Ministry.
Turning therefore to an announcement made by the new Lord Chancellor at the Labour Party Conference:
From next year - this Government will begin a national roll out of independent legal advocates for rape victims. The first step to delivering our manifesto promise of having independent advocates for rape victims in every part of the country.
More support for rape victims. Who in their right mind could argue against such a proposal? The short answer would seem to be only a wicked person or some kind of sexual offences apologist. Does that mean that such an announcement should be warmly applauded without question? Regrettably the answer to that is no.
A rape victim should be entitled, as a matter of course, under the current system, to consideration of their allegation by a proper officer, with proper training and proper experience. Once that officer is satisfied that there is sufficient evidence for prosecutorial decision making they should be entitled to consideration by a proper prosecutor, in a proper timeframe, with a proper charging decision made. Thereafter they should be entitled to proper consideration by the Court, in a proper timeframe, of the case with proper representation on both sides. It goes without saying that at every stage of the process the victim should be entitled to have it explained what is happening and what will happen next.
If that is not happening at the moment in every case, and only a wildly unrealistic person would say that it is, then that is indicative of problems with the system that require rectification. Where money is required to rectify those problems then money MUST be spent. Where the problems are not money then there must be rectification by other means.
I am intrigued by the word 'Independent' in relation to this proposed brand new breed of advocates. Independent from what? The police? The prosecution? The judge? If there is a need for such a cohort is the government therefore admitting that there is currently a lack of independence? If that is so then what is the government doing about it?
In the English system it can conceptually be very difficult for some complainants in serious sex cases to understand, or accept, that the prosecutor is not 'their' lawyer. That can, no doubt, have an alienating effect that might engender a feeling of being disenfranchised. Other countries do it differently, our way has always been an adversarial process between the state and the defendant. This can, and I would be inclined to accept, does run the risk that complainants can feel like mere observers to 'their' trial, notwithstanding that it is the defendant that is on trial.
The criminal justice process to an outsider can seem bewildering, frightening, labyrinthine, unfeeling. Complainants habitually do not meet prosecuting barristers until the day of trial, this is like awaiting major surgery and only meeting the surgeon minutes before going under. I don't think this is acceptable. There are reasons why it happens to do with lawyers' diaries, uncertainty around the identity of the advocate who will actually prosecute the trial, how such meetings would be paid for. They do not seem to me to be good reasons. It may just be that a proper lawyer having a proper meeting with a complainant could do much to reduce entirely many of the concerns complainants have about the trial process and therefore a belief that having a lawyer of their own would add anything to the process.
Monday 5 August 2024
A Tribute to Paul Darling OBE KC
When I was considering a career at the Bar a good piece of advice I was given was have a look at everything, as it's only when you've had a look at everything that you will know what's really for you. I dutifully followed this advice and had a look at clinical negligence, personal injury, property law and even spent a day in the Technology and Construction Court. And, with all due respect to those that practise there, it was 5 hours I can still count even now. I realised, many years later, that the mistake I had made was not to shadow that day Paul Darling KC, a man who could bring humour and life to a reading of the telephone directory.
Being a barrister is in lots of ways a very strange job. One of the things that is strange about it is that all barristers bear the same job title but, like doctors, they can spend their working lives doing utterly different things. As different as an astronaut's job is to a deep sea diver's.
Because of my instant awareness that I was neither technological nor especially constructive I never encountered Paul in court. Nor can I claim that I knew him especially intimately on a social basis. Where I did know Paul was charitably. The charity in question is the Kalisher Trust and if you read the opening paragraph on its website you'll see that its aim and purpose does not obviously dovetail with Paul's professional expertise and specialism:
We believe talent comes in many forms and from all backgrounds, and that the criminal bar should reflect the society it serves. A properly diverse criminal Bar offers independent, critical thinking; the knowledge that difference should be embraced as a source of strength; and that a shared vocation for justice is a powerful impetus, uniting all those who seek a career at the criminal Bar.
However, just because Paul did not practise in crime did not mean that he failed to grasp the critical importance of having a criminal Bar that commands the respect of all because it contains the best of all, wherever they come from. Communicating that message to generation after generation of young people requires organisation, energy and money and Paul brought all three to Kalisher.
There may seem to an outsider nothing very much remarkable about a barrister lending their support to a barrister charity but I can assure you that it is not every barrister in the well-heeled reaches of the Bar that demonstrates such concern for the future of their publicly funded brothers and sisters and their commitment to the administration of justice.
That commitment to public legal education is something that Paul really devoted himself to this year in his role as Treasurer of Middle Temple and while those of us that knew him have seen a friend cut down suddenly at no age at all there is no doubt that his Inn and its members will be feeling his loss especially keenly, so too all his colleagues at 39 Essex Chambers.
My particular link to Paul was through Dr Camilla Darling, his wife and long time linchpin of Kalisher, she can be a very persuasive lady and as the daughter of Dame Anne Rafferty that is no wonder, but Paul's devotion to the charity owed nothing to mere uxorial loyalty but a profoundly held belief that here was something that mattered and here was something that could be a real force for good. I think especially of Camilla in sharing my thoughts and so too all his family, including his brother Judge Ian Darling, who have lost a good man suddenly and unfairly.
If, as Paul Darling so profoundly did, you care that justice for the people of this country is done by those who look and sound like the people of this country you might care to make a donation in tribute to his work and memory: https://www.thekalishertrust.org/donate
Thursday 18 July 2024
The Disease Not The Cure - Andrew Malkinson & The CCRC
Saturday 22 June 2024
Blowing our own trumpets - Barristers and social media
There is a not insignificant part of me that longs to have a chambers profile, sans photo and text, that simply states:
If you would like to instruct Max Hardy please telephone his clerk.
Chambers' website photographs are a very good source of entertainment if you have a lot of time to kill on a wet weekend, like a model agency's roster of talent but generally with rather less physical perfection on display. At 2004 Call I don't quite pre-date chambers websites but they were very rudimentary affairs back then and I definitely grew up schooled by barristers who themselves regarded touting as worse than blasphemy and treason rolled into one. Advertising one's services was, not all that long ago, a serious disciplinary offence and, more than that, it was just not done.
Now, however, the baby has well and truly followed the bathwater. True it is I have never encountered a barrister with personalised branded pens like those of a flamboyant Floridian defense attorney I met on the SEC Criminal Advocacy Course which boasted: 'YOU RAISE CASH. I RAISE DOUBT'. And I suppose one should be grateful that no barrister has yet resorted to advertising via sky-writing, flash mob or Oxford Street sandwich board man (although I do dimly recall some bus stop ads a few years back).
But, my learned friends, we need to talk about tone and about content also. Let me immediately acknowledge that those that live in glass houses should not throw stones and, as an occupant of a veritable crystal palace of self-promotion, perhaps I'm not best placed to sound off on this particular topic. Nonetheless, just as our journalistic friends are expected to adhere to style guides, surely the time has long since passed for the profession to discuss and agree comme il faut and how it very much is not.
When I talk to law students about pupillage applications one of my mainstays for advice is sit down with the form, identify every adjective, and then delete them. Adjectives are the friend of the estate agent but the sworn enemy of the advocate. If we boast on social media about a 'stunning acquittal' what message are we communicating to the reader - That we, in fact, had no faith in the case and were therefore astonished by its outcome? That, in our opinion, maybe the jury reached the wrong verdict? Of course those aren't the interpretations we intend, what we mean is, this result could only have been achieved by a barrister as wondrous and uniquely gifted as ourselves.
Because we never receive feedback from the primary recipients of our advocacy, namely juries, it is possible for barristers to complete a practice of 40 or even 50 years with some absolutely fundamental misapprehensions about how our routines go down with the 12 good folks and true. (By way of an aside it's why the Keble Advocacy Course is such a godsend). It is also why I balk, recoil and grimace at what has regrettably become an industry standard expression. Why is it that we have all decided to announce with fanfare on LinkedIn, Twitter and the rest that we SECURED an acquittal or we SECURED a conviction? You secure a mortgage on a tiny flat in Zone 5 because that's all Legal Aid stretches to these days. You secure your framed Certificate of Call to the wall in your downstairs [only] loo. But is it really us securing the convictions? Might it not be, instead, the evidence. After all we don't say to juries: 'You may be sure that Mr X is guilty because I have addressed you with elan, panache and brio'. Judges don't direct them to listen to the advocates and choose whose words were most beguiling and bewitching.
Maybe it's just me but if you've been in a case that has had a result that you think worth bringing to wider attention why not plainly inform your audience what the case was and that you appeared in it. And if you really have to you might add what verdict the jury reached based on their careful assessment of the evidence and the law.
Sometimes it's not just how we say it but what we say that perhaps requires a second, third and even a fourth thought. As a youngster when I was still gauche enough to talk about the day job to friends and relations they were often tolerant enough to raise a weak smile at yet another prolonged anecdote about a scallywag shoplifter. As the years have progressed I have mercifully outgrown talking shop to outsiders unless they evince a really genuine interest. But also the cases rapidly lose any sense of roguish charm. Any RASSO practitioner learns very quickly that their daily diet is quite rightly the stuff of nightmares for most people.
With that thought in mind could it be that there are certain categories of case that require especially sensitive consideration when it comes to publication on social media? We tell juries that nothing less than sure will do but there is quite the sliding scale below sure from a finding of flagrant and malicious concoction to an agonised and agonising decision that the benefit of the doubt must properly be given to the defendant even if the not guilty verdict is delivered with a genuine sense of hesitation and misgiving. Is an acquittal for a serious sexual offence in those circumstances really something to crow about?
I'm a realist, this is the world we live in now, and I wouldn't want any forensic scrutiny or even casual flick through of some of my 'announcements' held against me but if we're going to be blowing our own trumpets it's worth thinking about what tune we're playing and when.