Gisèle - An Acclamation

 

France is a different country, they do things differently there. You can tell a lot about a country from how it addresses allegations of sexual offending. If you were to look at England you would see a country that takes months, sometimes even years to bring sexual allegations to trial. You might think that suggests England does not attach much priority to investigating, prosecuting and trying serious sexual offending. You would be right to think that; whatever empty assurances politicians offer to the contrary. 

Something the very different French and English criminal trial processes have in common is an automatic right to anonymity for complainants. If Gisèle Pelicot had not waived that right there is a very real possibility that you and I would never have heard of her case and the appalling offences done to her.

Sexual offending within families can be extremely difficult to report because of what is known as jigsaw identification: establishing the identity of the victim because the defendant’s name and crimes are known. It would have been almost impossible to report Gisèle’s case without her identity being discerned. 

That meant she was confronted with a terrible decision. Endure a trial lasting weeks under a veil of secrecy protecting her but at the same time concealing from France and the world the enormity of what her husband and so many other men, known and unknown, had done to her. Or subject herself to international scrutiny and the exposition of intimate indignities of the most terrible kind. 

The public gaze is an unpredictable thing and rarely noted for its compassion. But the courageous decision she made could not have been more fully vindicated. The world looked on and the world was appalled. But even more importantly than that the world was educated. There endures a disconnect between the perception of what sexual offending is so often thought to be, shortly summarised as stranger danger, and what is so often the devastating reality, that it is the men in whom the most trust is reposed who far too frequently do the most to abuse that trust. 

Pelicot and his accomplices committed their crimes in darkness assuming their actions would remain shrouded and concealed. But for Gisèle’s courage and heroism they would have been safe in that assumption. Instead, the shame they sought to foist on her without regard for her humanity and bodily integrity has well and truly changed sides. Their exploitation of her stupefied powerlessness has metamorphosed into countless millions standing figuratively by her side and many literally doing so as she has walked through the fire of a public trial and emerged a figurehead of dignity undimmed and undespoiled. 

Any man who has followed this case without engaging in serious soul searching most likely cleaves to the empty and disingenuous cliché: not all men. Of course not all men but what Pelicot and his ‘regular guy’ accomplices have shown is that it can be any man. This is a man problem and not one for Gisèle or any woman to solve. Gisèle means pledge and by standing up for herself her example will, I hope, act as a promise to victims everywhere that bad deeds brought to light bring shame only to perpetrators.

Tolerating the Intolerable

There was a point during the barristers' strike when I realised that Dominic Raab simply would not relent, whatever the consequences to him, to us, to justice. We were playing chicken with someone who was not only prepared to crash the criminal justice system but actually seemed determined to do so. It's a little observed point but Liz Truss' pettish dismissal of him and replacement with the 1 month Lord Chancellor, Brandon Lewis, saved us from something genuinely cataclysmic. The truly sobering question is whether, in fact, being dynamited from the foundations up might have been preferable to death by a 1,000 agonising cuts. If it's to be oblivion there's at least something to be said for immediacy.

There have been so many 21st century Lord Chancellors that being able to name them all in order would probably qualify as a Mastermind subject. Justice is supposed to be immutable and enduring; those charged with supervising its administration have been anything but. Indeed, if you were to measure ministerial prestige by the longevity of Cabinet office holders it would be fair to say that, in political terms at least, justice is about as inconsequential as it gets. Not so much 'always the bridesmaid never the bride' as NFI to the wedding in the first place.

I'm certain I'm not alone in being slightly embarrassed at how absurd my forlorn hope was that a change of government might have heralded even the slightest prospect of improvement. Instead, less than 100 days into a Labour government we were told that court sitting days would be cut. If you don't know what a court sitting day is it will suffice to say that the Lord Chancellor's main job is ensuring there are sufficient courts open to ensure that we have a criminal justice system rather than a criminal justice swamp.

One might have thought that having a former Director of Public Prosecutions as Prime Minister would mean that a power hose would be turned on the Augean Stables that passes for our criminal justice system. Instead, as The Who sang in Won't Get Fooled Again, it's 'Meet the new boss. Same as the old boss'. The Independent, The Daily Telegraph and The Financial Times have all in the last few days published articles shining a light on how dire things have become. There was once a time when that would have caused Westminster to sit up and take notice. Now it's chip paper before the day's even out.

When I started at the Bar I did a little extradition work and one of the arguments sometimes advanced against extraditing to a particular country was that its system was so bad and its prisons so appalling that it would be a fundamental breach of human rights to permit extradition there. That argument was successfully deployed in Germany in 2023 against extradition to the UK. The envy of the world...

Here is a list of things I now regularly encounter:

1. Trials being listed in 2026 and 2027

2. Bail applications with no instructions

3. Cases listed for PTPH with no indictment or evidence served

4. Startlingly inexperienced officers investigating serious cases

5. Cases removed from the list administratively with no new date which then become zombie cases

6. Fixtures which become floaters

One was a time that any one of those scenarios would have been as unthinkable as it was unacceptable. Now the intolerable is tolerated, every day, and the unacceptable is utterly unexceptional.

I am starting to wonder whether the situation is actually capable of remedy. Only a fantasist could imagine that vast injections of cash are waiting around the corner. But are we passengers on a plane that is already in a terminal nosedive which no sum of money can arrest? 

Any country can pretend at justice and I don't doubt that people can be found that will sign up for the pretending. I'm just not sure I'm one of them.

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.

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

The Disease Not The Cure - Andrew Malkinson & The CCRC

In the world of criminal appeals a ‘DNA case’ is an open goal. By that I mean when a convicted prisoner proclaims that their conviction was wrongful the discovery of relevant DNA from another at the crime scene is as gold plated an opportunity to right that wrong as can be conceived of. 

Anyone involved in a criminal trial process will seek to play out the crime in their mind’s eye in a bid to determine what actually happened. With the proliferation of CCTV it is becoming more and more common that criminal trials involve seeing, at least to an extent, what actually did happen. 

In Andrew Malkinson’s case there was no helpful CCTV. Ring doorbells had not been invented in 2003 and we were still some way off having a camera on almost every street corner. The case against him therefore relied upon one of the most unreliable ingredients in the criminal trial process, that is human beings. Some of those humans were civilian and some were not. 

Time and again advances in DNA technology have proved unambiguously and unequivocally that humans can be just wrong, whether advertently or inadvertently. If there is no trace of a convicted person’s DNA in a crime specific place and it’s not attributable to the victim, police or other identifiable innocent then even a child is capable of inferring the significance of such a discovery. 

That kind of DNA evidence is a wrapped present, a cake with the cherry on top and an easy, easy win delivered on a silver salver to any appeal body. Although I pause on that word win. Criminal justice is not football. Prosecutors that become fixated on wins and losses are in real danger of caring about results at the cost of the integrity of the process. And if the process is flawed the results are worthless, however glittering they may appear. The same is true for a statutory body charged with examining the safety of convictions. 

In plain English Andrew Malkinson’s DNA was not found ANYWHERE in the samples taken in his case. The DNA of ANOTHER man was. That DNA was found in an obviously crime specific location and yet the CCRC took the view, for years, that the human evidence leading to the conviction was safe and sufficiently safe such as to render the DNA evidence irrelevant for the CCRC’s one purpose, which is to decide whether to send a case back to the Court of Appeal to look again. That decision was as inexplicable as it was wrong as it was enraging. You do not need to be a lawyer to discern that. 

When I was asked to advise in Malkinson’s case in 2020 I was specifically asked to bring to bear my experience of prosecuting and what I found was the wrongest case I have ever dealt with. Chris Henley KC’s uncompromising report on the CCRC’s handling of the case makes plain that there were many people that clearly did not share that perception. Strip the fresh DNA evidence out of this case and I would bet my house and every penny I have earned in 20 years of practice that Andrew Malkinson would remain convicted still. 

And yet it was not DNA evidence that led to Malkinson’s conviction. One of the charges levelled against the CCRC is corporate incuriosity. I would suggest that if your job is scrutinising whether convictions are arguably wrongful curiosity is the most fundamental of necessary qualities. An enquiring mind, a preparedness to drill into the prosecution case theory to see whether under the surface it’s pure gold or a rancorous cesspit of unreliable evidence, a willingness to take the police and prosecution to task and hold them to account is the least I would be looking for. At least look at the police files! 

No doubt there are some rightly convicted people making applications to the CCRC but if the corporate attitude is to assume convictions are safe then the wrongly convicted won’t get a look in, as Andrew Malkinson did not for such a disgracefully long time. They say hard cases make bad law but a corollary of that should be that bad cases should lead to hard action. If we sit by and shrug at what happened to Andrew Malkinson we accept that the CCRC is part of the disease and not part of the cure. 

Here are some links for those with an interest in the case and miscarriages of justice generally: 

First, watch the powerful BBC documentary about the case The Wrong Man: https://www.bbc.co.uk/iplayer/episode/m001zywl/the-wrong-man-17-years-behind-bars

You can listen to Seventeen Years, the podcast about the case: https://shows.acast.com/seventeenyears

You can watch the entire appeal proceedings here: https://www.youtube.com/watch?v=0lCRwDv8scs

You can watch a lecture that James Burley, investigator at APPEAL, and I gave on the case: https://www.youtube.com/watch?v=nR53-0FePWs

Read Emily Dugan’s reporting in the Guardian on Chris Henley’s findings: https://www.theguardian.com/law/article/2024/jul/18/catalogue-of-failures-watchdog-missed-chances-to-help-andrew-malkinson-report-finds

Finally, equipped with that information, read the report itself: https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/5/2024/07/Integrated-Report-Response-Redacted-Copy.pdf

Very lastly if you want to support the work of APPEAL you can here: https://appeal.org.uk/donate/#:~:text=APPEAL%20is%20a%20small%20and,a%20fair%2C%20accountable%20justice%20system.

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.

Tales of Tenancy

Nobody likes job interviews. A lifetime of education, training and experience distilled into a 30 minute salvo of ‘What would you say is your worst quality?’ and trying to glean what a ‘competitive salary’ actually means in pounds, shillings and pence. 

Imagine then a job interview that lasts 12 months, or 18, or 2 years, or 3 for that matter. For that is how long it took me to obtain a tenancy in chambers. On the almost endless list of ways in which criminal barristers jobs are different and weird the way we recruit must feature prominently. 

If you’re not a barrister the word pupillage is very unlikely to appear much in your lexicon. If you’re aiming for the Bar it will occupy your every waking thought and most of your sleeping ones too. Every year significantly more candidates apply for pupillage than there are pupillages available. There are Pupillage Fairs, websites, Inns of Court advice sessions and a plethora of resources available to guide and advise students in the process of applying for pupillage (barrister speak for an apprenticeship/traineeship). 

Apprenticeship doesn’t really do justice to the reality of the pupillage experience which is more of a knight/squire relationship than almost any job setup I can think of, although it’s not lances you’re lugging around it’s lever arch files and you’re learning to battle with wit and words not blades and a mace. 

The intensely personal professional relationship that is engendered between supervisor and pupil gives way to exposure to chambers relationships with clerks, clients, solicitors and judges. And as the year or year and a half of pupillage unfurls like the Bayeux Tapestry the moment comes when the pupil is examined by the Tenancy Committee which decides whether they’re ready to spring from their chrysalis for addition to the Chambers butterfly collection. 

If a job interview with complete strangers feels stressful and awkward then an interview with people who’ve become friends and colleagues and who might in moments determine that you’re ‘not one of us’ after all is a singularly daunting and excoriating prospect. 

Perhaps the most extraordinary thing about applying for tenancy is that chances are those determining your fate will likely never have seen you actually doing the job for which you’ve spent all those months sweating. Certainly, any half-way decent chambers will have in-house advocacy training and this may even stretch to a showdown mock trial against another chambers. But even at its most evolved and considered this is still tennis on the practice courts, cricket in the nets, battle training with blanks. 

After 20 years on the job I’ve been involved in tenancy decisions where I’ve seen people move to other sets and shoot like rockets into the sky and others where people were considered a sure bet for a flourishing career at the Bar who within a year or two decided it wasn’t for them. Barristers are experts in many things but recruitment is rarely one of them and because of the oxymoronic possibility that something referred to as a tenancy actually denotes lifelong membership of a chambers the stakes are very high. 

I always say to those intent on the Criminal Bar that this is a not a profession for those that can’t cope with losing. Every single barrister has seen jury verdicts and judges’ rulings go against them and if you can’t deal with that you’re in the wrong job. Being rejected for tenancy can feel very, very personal and if it doesn’t it probably means they made the right decision. If it smarts then that’s the spur to go on and show them what you’re actually made of not what they wrongly thought you were.