What Children Need

The thing about the Spanish Inquisition is that it did not just inquire it acted. Its actions may have been bloody and merciless but nobody subjected to its inquiries could be in any doubt that its findings would follow immediately with swift and decisive action.

Not many would say the same about English Inquiries. They are slow, they are expensive and often the result is a profusion of very well intentioned words but precious little action. Over 2 years ago Professor Jay concluded a 7 year inquiry into child sexual abuse in England and Wales. She made 20 recommendations and, as the BBC helpfully summarises, not one of them has been implemented: https://www.bbc.co.uk/news/articles/c0mvmy3dwe1o.

Anyone who suggests that any child will be better protected by the commencement of a further inquiry before those recommendations are acted upon either does not know what they are talking about or is speaking in absolute bad faith. All the riches in the world will not permit that binary analysis to be refuted. And it may be that when you're trying to send rockets to Mars you don't have much time to read into what has already been inquired into and what already recommended.

On the other hand, if you're an elected UK politician who served in the government that received the recommendations of that Leviathan of an Inquiry you might want to explain how you can have the gall to put about the canard that what the most vulnerable children in our society really need is more talking and more words.

The way that you protect children is keep them from the clutches of evil men. If they fall into those clutches you extricate them, prosecute the evil men and send them to prison. It's extremely easily said; it's much less easily done. Despite what some might believe, and a malicious few would have many believe, no race, colour or creed has a monopoly on the supply of evil men. Unfortunately, men who are intent on sexual harm to children can and do come from anywhere and everywhere.

The way that you don't protect children is run social services into the ground, police forces into the ground, the CPS into the ground, the courts into the ground and prisons into the ground. And yet for years that is exactly what has happened. Rape gangs have operated with impunity because insufficient money has been spent on identifying them, breaking them and taking them before the courts. 

The power of the state to act in the defence of the most vulnerable children in our society has never, at least in my lifetime, been as diminished as it is now. If it wasn't so obvious why it would be worth inquiring into that. No child was ever protected by a report they are protected by adults able, equipped and funded to do their jobs. Elon Musk knows where his mouth his, if he cares anything for children he can put his money there too.

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.

In Defence of Jury Trial

When you are slogging your guts out trying to bring some minuscule level of function to an essential but collapsing system it is wearing, to say the least, to watch people call into question a part of it that not only actually works reasonably well but is, in fact, essential. 

 Juries are not infallible. Juries are not trained. Juries are not expert. Juries do not give reasons. Juries are private. Juries don’t read The Guardian or The Telegraph, or maybe they do but you’re not allowed to know. 

 If you ask me as a barrister of 20 years’ call (and God knows, some days it feels like 40) why I think juries are so great I can’t point to an unimpeachable academic study that demonstrates incontrovertibly that they are more likely to get decisions right than judges. And no, the irony is not wasted on me that as a foot-soldier in a profession that exalts evidence over assumption, cold facts over hot opinions I can’t show my workings for my belief that juries work. 

 What I can say is that, in my experience at least, juries do work because they do the work. By that I mean juries ask questions that so often reveal that they’ve been paying attention, turning over in their singular and collective minds the evidence and how they should apply the judge’s legal directions. And it is so important to emphasise that our most serious cases are not tried by juries alone but by judge and jury. Yes, the result is in the hands of the jury but the shepherding and the guiding is in the hands of the judge. 

 I wrote recently why I felt Channel 4’s ‘The Jury’ was, at best, a misguided experiment and at worst an actively harmful distortion of the reality of jury trial (full disclaimer I’ve still not actually seen it). Since its broadcast a truly aggravating article by Simon Jenkins was published in The Guardian which, paraphrasing somewhat, denigrated trial by jury as being justice by the thick, the prejudiced and the idle. It was a piece that did him little credit, not least of all for his completely bogus claim that rape and other offences are not even tried by juries. 

 In England & Wales we have juries of 12. From time to time there are murmurings from the Ministry of Justice pondering why that number is so sacrosanct. I will venture an opinion. If you drag 12 random people off the street, which is essentially how jurors are summonsed, you would be immensely unfortunate not to have at least 1 person actually prepared to listen to the evidence, willing to take account of the judge’s directions and steer the deliberations with a proper, reasonable and reasoned consideration of the competing arguments. All it take is 1, is my genuine belief, and rare is the jury that has to make do with only 1. 

 A bad juror has to do a hell of a lot of work and damage to turn a jury of 12 bad. A bad judge doesn’t have to turn anyone and, even worse, they’re bad today, tomorrow, next week and next year. And it doesn’t even need a judge to be actively bad, a judge beaten down by the system, by the unrelenting conveyor belt of cases, shattered by the sheer grind. Where is the freshness? Where are the new eyes and the one-time application? 

 Jury duty is a very weird and novel and generally unrepeated experience in most people’s lives. And most importantly it is a duty and here I’ve saved the most important point to the last. 

 There was a time when duty dictated all our lives and, when it came to World Wars, for many of us our deaths as well. We don’t do duty any more. 

 ‘Don’t fancy it? Then don’t bother.’ 

 ‘You can’t tell me what to do!’ 

 And so it must be a shock for many when that summons arrives. Sure, you can defer, but not indefinitely. This is the state saying put your life on hold, sit in a box with your fellow citizens, not your mates, not your colleagues, not your family, not fellow Gunners, Dog and Duckers or disco dancers: 11 total strangers selected by the state. And in a few days (or weeks, if you’re unlucky) you’ll be sitting privately in a room with those strangers and asked to make a decision that could see another stranger sitting in a prison cell every single day for the rest of their lives, or see someone who was raped weekly between the ages of 10-14 finally have that abuse recognised and acknowledged, or maybe you will see that the police did cut corners and got the wrong man. 

 Whatever your decision this is your buy in. This is you making good on a social contract that you may have never thought about or thought didn’t apply to you. Voting is not obligatory in this country but the smallest manifestation of democracy, sitting in judgement of your fellow man or woman, is. Prosecutions are brought in the name of the Crown in England but justice is done by YOU for US and it is done by US for YOU. The day that you wish justice is done by them instead is the day you abandon that contract and surrender your freedom.

Why I'm not watching The Jury

 

There are increasingly few places that remain unviolated by TV cameras. Papal conclaves and jury retiring rooms are two that spring to my mind. You may struggle to name that many more. Is it for the best that we don't get to see the horse trading and strong arming that precedes the puffs of white smoke? What about murder verdicts: is it right that we should trust to blind faith that juries faithfully follow judicial directions and bring to bear sober and dispassionate analysis of the competing cases?

You can forget about Vegas it's what goes on in jury rooms that really stays behind. I've been at the Bar for 20 years and involved in literally 100s of trials and can't say with certainty what persuaded the jury in any of them. Like any barrister worth their salt I've obviously wondered what goes on, what gets said and what, in the end, counts.

So on the face of it Channel 4's 'The Jury: Murder Trial' ought to be an absolutely tantalising prospect. But unfortunately I can't bring myself to watch it. A real life murder trial restaged in front of two juries of ordinary people. Both hearing the same evidence. All deliberations filmed. Will they reach the same verdicts? In the absence of cameras filming the Real McCoy isn't this the next best thing? Well no, unfortunately it's not.

In any serious criminal trial there can be moments of real drama. But the purpose of the proceedings is not entertainment and nobody in court is under the illusion that it is. As anyone who has served on a real jury can attest large parts of the criminal trial process can be almost mind-numbingly dull. Try sitting through even 30 minutes of mobile phone cell site schedule evidence, sometimes this can go on for a whole day or even longer.

It is because real lives at stake and the jeopardy is real that attention is maintained. If you filmed that ratings would be through the floor. A criminal trial unfolds to a set sequence. Prosecution opening, prosecution evidence, defence evidence, legal directions, prosecution speech, defence speech, summing up, deliberation. There is a reason for that sequence and it is not entertainment.

I know, without watching the programme, that sequence is not maintained, I know that the jury's opinions on the case are filmed throughout, in a real trial juries are specifically expected to await the end of the summing up before commencing their discussions and deliberations. And there is no director or producer watching on anxiously hoping for controversy and dispute.

12 Angry Men is a classic drama precisely because Reginald Rose sat down and plotted the give and take of the jury room with that end in mind. If those behind the Channel 4 programme were faithfully and absolutely intent on verisimilitude then they would need to gamble upon the experiment making for turgid television. When money and ratings are at stake who is going to take that gamble?

And there's the rub. If this show is to entertain it will need to shock or subvert our hopes and assumptions about juries weighing evidence carefully and objectively. If this show is to reflect real life it has to be bold enough to bore. What it can't do is both and the danger that lies in making good entertainment is doing bad damage to the credibility of a system that works.

A paean to pupils and pupillage

 

To outsiders it may seem that it's our horsehair wigs and Victorian starched collars that are the most unusual thing about the barristers' profession. As a member of that profession I would actually suggest it's our training. We call it pupillage. Securing one can sometimes seem to law graduates as unattainable as the Holy Grail.

It's a peculiar term and for a pupil barrister their job description can seem strangely redolent of childhood. Yet more so for those undertaking work experience with a barrister, who are referred to as mini-pupils. Those instructing pupil barristers were known, until very recently, as pupil masters or pupil mistresses. Now, prosaically and colourlessly, they are known as pupil supervisors. It's a term for which I feel little affection because you master an art or a skill but you supervise a process or a production line.

Periodically it is suggested that trainee barristers should be called, well, trainee barristers. That, of course, is a term that would be familiar to anyone in or out of the profession. It does not however do justice to quite what an education it is to be a pupil barrister. And what a mighty privilege and burden it is to have a pupil.

Most barristers are self-employed and most barristers belong to chambers. We don't earn a salary. We don't have a boss. When we are not in court we work when, how and where we like. If we do our best case prep up a valley without WiFi in Cumbria in the middle of the night that is where and how we will prepare a case.

Preparing cases is a very personal exercise and barristers have to work out what works best for them. But they also need someone to show them how to do it. That is where pupil supervisors come in. In taking on a pupil a supervisor is giving their pupil the most intimate access to their professional life and working practices. If you are an intensely private person or don't enjoy having your working habits scrutinised then pupil supervision is not for you.

It was not that many decades ago that pupils paid their masters or mistresses for the not insubstantial work involved in showing a complete beginner the ropes. Quite rightly that practice, representing as substantial a barrier to the profession as purchasing commissions in the army once did, has fallen into desuetude [that's a lawyer's term]. Pupils are now paid, in fancy commercial chambers substantial six figure sums, in criminal sets rather more modest amounts.

Supervisors, on the other hand, get absolutely nothing for training the next generation of barristers. And there you were thinking all lawyers are venal and grasping, for shame. In fairness that isn't actually true at all because a good pupil can make all the difference between a practice bursting apart at the seams and a well oiled machine of prompt advice and immaculate preparation. I always say a good pupil can halve your workload, although I have heard that a less good one can double it.

It has never, ever felt like work to me. If you care about the profession and you think what it does is important then having a hand in shaping its future custodians feels an almost sacred obligation. Having a pupil certainly keeps you on your toes because your every written and oral interaction has an audience and a witness. And not merely a passive spectator but someone who is looking at your professional conduct as a template for their own.

I had a number of pupil masters all of whom taught me valuable lessons about life at the Bar but the first necessarily always leaves the biggest imprint. I was fortunate that mine was Edward Henry KC who by my estimation is one of the most powerful advocates I've encountered in my 20 years at the Bar. Since parting ways he has led me on a number of occasions most notably in the appeal of Andrew Malkinson. The teacher/pupil dynamic has become one of colleague and collaborator.

If I have had half the effect on any one of my pupils that Edward had on my sense of what a barrister should be and stands for I will count myself a very fortunate person.

Anything you do say may be given in evidence.

The end of the prosecution case in England and Wales is conventionally the moment when the defendant’s interview under caution is adduced in evidence. At the time of the interview the defendant will have been a suspect and it is the opportunity of the police to glean the suspect’s version of events and the opportunity of the suspect to give theirs. Or not give it. I have no idea what the statistics show but many interviews under caution are met with no comment either in response to legal advice given or because the suspect of their own volition has decided it would not be in their interest to answer questions.

The caution is as follows: 

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.” 

I’m getting so long in the tooth that when I started practice the interviews were recorded on tape with an annoying backing track to ensure that nobody could interfere with the contents of the recording. They continued to be recorded on tape until remarkably recently, I was given to understand to some degree because the police had one of the largest stockpiles of cassette tapes in the country. 

Briefs would come tied up in pink (defence) or white (prosecution) tape with an envelope containing a cassette tape so that the accuracy of the transcript could be checked against the recording. This resulted in a colleague having an absurd experience once when no tape was included in their brief, a request for a copy of the tape prompted a photocopy of the cassette. 

The recordings of interviews are almost never played in court before juries. Instead the prosecution barrister and the investigating officer have to engage in a moment of am-dram by reading out the transcript. I say am-dram but ‘doing the voices’ is seriously frowned upon. I only discovered recently that the Southern practice of having the barrister read the defendant’s part and the officer reading the police part is reversed in more Northern parts of the country. 

Mercifully the tapes have finally gone the way of fax machines and recordings are now digital and immediately available as digital links. No comment interviews are not adduced in evidence to save juries the brain numbing tedium of having an entire unanswered interview read to them. Instead an agreed fact informs the jury that the defendant made no comment and, where significant questions went unanswered, what they were. 

When answers are given the parties have to scrutinise the transcripts to make sure that anything irrelevant, inadmissible or prejudicial gets edited out of the interview: references to previous convictions, the officer’s opinion that the defendant is bang to rights, lengthy discussion about what the defendant had for lunch. 

When I started if such edits were not resolved in good time before the trial edits had to be done with Tippex, black marker pen (never desirable) or, especially fiddly, with scissors cutting out the offending passages so that the transcript could be photocopied on top of a blank page. I don’t miss any of it. Now edits are track changed, commented, highlight and implemented at a touch of a button. 

However, the transcript reading remains and now that we’re in the digital age it seems to me absurd that juries don’t automatically get to hear the defendant’s own voice and, where video recorded, see their own face in the police interview room. Everybody knows that often in life it’s not what was said but how it was said. It seems to me that if the police interview under caution is of evidential significance, which it obviously is, juries should at the very least actually get the chance to see and hear it. 

So many improvements to the criminal justice process require money or complicated reform. This seems to me to be basic and immediately capable of implementation.

Counsel of Despair

 I recently tweeted the following observation:

It’s important to say that the message that there’s no point in reporting sexual offences to the police is a counsel of despair. There are many police officers, lawyers and judges that make it their life’s work to take such allegations seriously and have them tried properly.

And it would be fair to say that, to some readers at least, it was neither an important nor welcome message.

A very niche benefit of Twitter to criminal barristers is that it's a reminder that when you address a jury what you think you're saying, or what you want to say, is not necessarily what the jury are hearing you say. Because juries don't provide feedback other than through their verdicts this is not a reminder often given in court.

For the avoidance of doubt here is a list of things I did not mean in that tweet:

1. That all victims of sexual offences must report to the police.

2. That if victims of sexual offences do not report to the police then they are not victims.

3. That if victims of sexual offences report to the police they are guaranteed to see their attacker convicted.

4. That all police officers are perfect. Or lawyers. Or judges.

5. That I do not think there are very serious problems with the criminal justice system, particularly in relation to sexual offences.

6. That I am oblivious to a prevailing, possibly near universal, view that reporting to the police is a futile act.

When the perception is that justice is very difficult or impossible to achieve it is entirely understandable why a victim of a sexual offence might prefer to heal privately in their own way and in their own time.

The sometimes re-traumatising effect of the criminal justice process is something that is frequently remarked upon and written about. Contending with a forensic challenge to your integrity and credibility when you have been a victim of rape must be, at the very least, a galling experience, if not profoundly upsetting and destabilising.

Acknowledging that reality while reconciling it with the need to maintain a rigorous and fair trial process is something that causes any lawyer of good conscience a great deal of concern and anxiety. An inescapable if harsh fact is that the criminal justice process is not therapy and its direct purpose is not healing. Its purpose is to correctly identify wrongdoers, hold them to account and punish them when required. Another equally difficult concept is that a not guilty verdict or even a decision not to charge does not mean that an offence did not happen, it means that there was insufficient evidence to prove that it did. Obviously when the main evidence comes from and is the person making the complaint that will feel like the most personal of judgements. But a system in which the making of an allegation of itself ensured a conviction would be a dangerous thing to have.

I have not experienced the criminal justice process as a victim of a sexual offence but I have witnessed those that have on scores of occasions. People often ask me how does it feel to defend someone I know is guilty. What I have never been asked is how it feels to sit with a distressed victim in a dilapidated room at court in the aftermath of the acquittal of a man who hours before I had suggested to a jury was a provable rapist. I can tell you how it feels. It feels really bad.

I know what is wrong with the criminal justice process and to some extent I know what is required to fix it. Money plays a very large part in that. But that's not the only part. Where Twitter and other platforms are useful is that you hear tales and narratives that rarely make it into law schools and court rooms. Social media gives victims a voice. I am always listening because without listening you don't hear and if you don't hear you don't learn.

But like a beleaguered doctor hearing about troubling symptoms I would never counsel not getting them looked at. The criminal justice process is not what it should be, too many victims are let down by the police and the courts. But disengagement from the system does not provide alternative recourse. If we don't use the system and make it work there is no other. There are people that care about it and the victims that have no choice but to use it and I should know because I see them every day.

Not every rape that gets reported to the police results in a conviction but no convictions result from rapes that are not reported.

Just One Of Those Things - Defending Andrew Malkinson

Miscarry at one time meant merely mistake. In its modern usage it means the tragedy of a lost pregnancy or the tragedy of a wrongful conviction. Those who have had the misfortune to experience either of those utterly dissimilar tragedies may be united in one fervent desire and that is to know why. And sadly, all too often, when a pregnancy is lost there is little more doctors can say than it was just one of those things. Medicine cannot discern the why. It is also the reason why I privately wince when I hear the expression miscarriage of justice. Because there is always a why, it’s just a question of whether there is the time, resource and will to ensure the why sees the light of day. 

I prefer and endorse the expression wrongful conviction. For few things are more full of wrong than the conviction of an innocent person. And few are the wrongful convictions caused by mere mistake. At the heart of almost every wrongful conviction there is a failing, either deliberate or negligent. The hallmark of a healthy, functioning justice system is a desire to expose and root out that failing. By dissecting the wrong and holding it up to the light justice is vindicated in unflinching scrutiny. 

An analogy that resonates for me is that the dispensing of justice is the love in action of a society for its people. Those that love you care for you and when wrong is done to you they seek redress for you. When a government assumes that responsibility and discharges it properly it is exhibiting, on a societal level, exactly that kind of love writ large. Conversely, when wrongful convictions are tolerated and lie unexposed the government demonstrates disdain not just for those immediately affected but for all of us.

But it would be absurd to suppose that such disdain affects us all equally. To say that those directly affected by wrongful convictions experience devastation does not come close to describing the impact on the wrongfully convicted, those that love and care for them and the victims of the crime giving rise to the wrongful conviction. On one side of the equation is a person who has known from the moment the guilty verdict was delivered that an injustice had been done and on the other is someone who from the very same moment thought justice had been done. Both of them cruelly cheated of justice. 

Few are the students at law school intent on criminal practice who do not suppose that one day they might be involved in the righting of a wrongful conviction. In reality involvement in such cases is vanishingly unlikely. Post-conviction appeal work is extremely difficult and hard to come by and very poorly remunerated, that is if it is remunerated at all. 

Lawyers have to obtain access to the evidence called at trial, transcripts need to be applied for, unused material scrutinised, liaison needs to take place with the lawyers that appeared at first instance, instructions taken, investigation undertaken, fresh evidence sought. If preparing for a trial is like a walk in the Lake District mounting a post-conviction appeal as a lawyer new to the case is like trying to traverse the Himalayas in someone else’s climbing boots. 

It is not an undertaking that the English criminal justice system encourages or generally rewards. A defendant convicted in the Crown Court by a jury has the right to apply for leave to appeal. They have no automatic right of appeal. If leave is granted and the appeal refused or a renewed oral application for leave to appeal is refused then the conviction is affirmed. The only realistic option for a defendant in such a position is to make an application to the Criminal Cases Review Commission which has the power to refer cases back to the Court of Appeal. It is not a power which it readily or speedily exercises. 

A hallmark of the English system is certainty and finality. In other systems convictions are not final until all possible rights of appeal are exhausted. We favour a one-shot system. The expectation is that all involved should get it right first time. The problem is that the system falls desperately short when that expectation proves unfounded. 

In an English criminal case the defendant has no right to see all material in the hands of the police and the prosecution. The prosecution serves the evidence that it relies on to prove its case and all other relevant material held by the police is supposed to be listed in a schedule. That material is called unused material. If in the judgement of the prosecutor any of that material is capable of assisting the case for the defendant or of undermining the prosecution case then the prosecutor is under a duty to provide that material to the defence. This is what lawyers mean when they talk about disclosure. 

However, if material or information is known to the police but is not listed on that schedule then the prosecutor does not know about it and if the prosecutor does not know about it the defence can’t know about it, the judge can’t know about it and the jury can’t know about it. That is when verdicts turn on incomplete evidence and when they do they invariably turn against defendants. 

There is something paradoxical about genuine humility which is that proximity to it is a curiously ennobling experience. Anyone who has heard Andrew Malkinson speak on TV, radio or podcast in the wake of his quashed conviction will have heard that his is a voice of reason and of compassion too. He is acutely conscious that the injustice he has suffered on his side of the equation has also now been suffered by a victim of a terrible crime on the other. I know that many who have listened to him will have marvelled that he does not speak with the ranting recriminations and reproaches commensurate to the wrong that has been done to him. 

If you imagine for a moment a place that you really don’t want to be but you know that you have no choice to be, for example A&E with searing pain at 3 in the morning or an airport departures lounge with a 2 hour delay think about the sense of frustration you might feel that you are stuck there. Then imagine you’ve been imprisoned for 17 years for a horrible offence you did not commit. It’s a preposterous thought experiment because none of us can imagine the latter scenario. I’ve been visiting prisons for nearly 20 years of practice as a barrister and I can’t begin to conceive of how anyone could get through a week of such an experience. 

Yet Andrew Malkinson managed it. Undoubtedly it has taken a massive toll on his mental and physical health and it has cheated him of the prime of his life. But the colossal sense of anger he must feel is articulated in the most reasonable way and it is all the more forceful for that. A refusal to accept responsibility for a crime that he did not commit meant that Andrew Malkinson spent 10 years in prison beyond the tariff for his life sentence because a key requirement for being deemed safe for release is recognition by the offender of their crime. This is another invidious way in which the English system traps the innocent in a Catch 22. 

It is difficult to communicate in words the level of opposition Andrew Malkinson has endured in his quest to establish what happened to him and those acting for him have encountered. That basic and burning desire to know why has been met with obduracy, resistance and inaction. Evidence has been destroyed, information has been withheld, questions have gone unanswered. The fact that none of that precluded Andrew Malkinson from finally seeing his conviction quashed and not just because modern science has rendered critically significant DNA evidence that was there all along but because the jury was kept in the dark about evidence that should have ensured he was never convicted in the first place is thanks entirely to the relentless work of APPEAL, his solicitor Emily Bolton and their investigator James Burley. 

The dismaying reality is that there are many more Andrew Malkinsons languishing right now in prison cells. If you’re not prepared to tolerate that fact as just one of those things can I encourage you to consider making a donation: https://appeal.org.uk/donate

The Clink Restaurant at HMP Brixton

 

Same place different experience. It's a statement of the obvious that two people can be in the same place having a radically different experience. To give a really extreme example imagine a hangman and a condemned man both standing on the gallows. They might occupy the same physical space but their mental space might as well be in different universes.

It's also possible to be the same person in the same place having a radically different experience. The hospital doctor being delivered to their own A&E in an ambulance. The pupil returning to their old school to take up a teaching post. I've had this experience with my 'side hustle' as a TV legal consultant returning, after a very lengthy gap, to a closed Camberwell Green Magistrates' Court when it became the set for Landscapers. Everything completely familiar and utterly strange at the same time.

Yesterday I finally passed through the gates of the last London prison in 20 years of practice that I had never visited, HMP Brixton. Going on a 'Legal' never loses the strangeness of entering the 'secure estate' but the purpose is always the same whatever the type of case might be. The taking of instructions and the giving of advice. There is generally not much time to ponder the purpose of prison itself.

But I have been in prisons for other reasons. In 2009 I saw an extraordinary production of West Side Story in HMP Wandsworth. Pimlico Opera has been putting on prison production for years now and in 2024 will be in HMP Bronzefield: https://grangeparkopera.co.uk/pimlico-opera/. More recently I judged a debate about banning smoking in prisons in HMP Pentonville between a prison team and a visiting team from the Cambridge Union (the home team won and quite deservedly so). This was organised by Vocalise which is an excellent student led initiative run by Gray's Inn, my Inn of Court, taking debating into prisons: https://www.graysinn.org.uk/education/students/career-development/vocalise/.

Artistic expression and persuasion through words are both absolutely commendable and I would suggest essential endeavours to be encouraged within prisons. But in terms of concrete and immediately employable training in skills it's hard to see anything beating The Clink Charity. My reason for visiting HMP Brixton was to have lunch at their excellent restaurant.

It was an outing organised by Dolly Theis, wife of one of my closest friends, and whose passions for rehabilitation and food policy neatly dovetailed under one roof where food is made fresh with many of the ingredients grown in the gardens of other prisons in England & Wales. I'd heard of The Clink before but what I had not realised was that its activities extend far beyond the restaurants at HMP Brixton, HMP High Down near Sutton, and HMP Styal near Manchester Airport.

The group of policy makers, journalists and other interested people I accompanied was addressed by Yvonne Thomas the recently appointed Chief Executive of the charity. She is a persuasive and engaging advocate of its virtues and activities but, as the saying goes, the proof of the pudding was in the eating and in my case that was an impressively towering strawberry baked Alaska. Preceded by a heritage tomato tart and a perfectly cooked duck breast this was serious food, properly made and attractively presented. There was no call or need for patronising platitudes.

The restaurants are dry, the cutlery is plastic and the dire warnings about trying to enter without storing your mobile phone in a locker before entry mean you can be in no doubt that you're in a restaurant with a difference. But the most important difference is that the food is being cooked and served by people who have been presented with a golden opportunity to move on from an anti-social past to find employment in the most social industry of all: hospitality. Also, leaving a restaurant with a clear head where the meat has to be cooked perfectly and where you have given and received from your dining companion undivided attention is all a plus in my book.

For a birthday party with a twist, an unforgettable date night, or a work outing with a difference it can't be beaten. Book here: https://theclinkcharity.org/

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.