A Judge’s Tribute to Nicky Gatto

Some of you will have read my blog about my colleague Nicky Gatto. The day after the news was announced HHJ Tom Gilbart, a former member of our chambers, said a few words in open court at the start of the day. Tim Storrie KC responded on behalf of the Bar. A largely impromptu tribute and HHJ Gilbart has asked me to share his words with a wider audience than was in court and I am more than happy to do so. You will note that we both recall the same anecdote!

It was announced yesterday that Nicky Gatto passed away.

I know that something more formal will take place and I do not want to step on anybody’s toes but I was in Chambers with Nicky for my entire time at the bar and I wanted to say something very briefly in open court this morning.

She was, I think, one of the funniest people that I have met. A natural raconteur. My first reaction yesterday when I heard the news – after the sadness – was to share some of stories about her with my son and laugh about them. A personal favourite was when she walked into Court without her glasses on. Seeing the usher on the Judge’s bench preparing his papers, Nicky asked – unable to see properly – what time is Ratface getting here?

It was, of course, the Judge. “Ratface is already here” came the reply.

She was also an absolutely first rate barrister – tireless; fearless and well prepared. Whenever I covered one of her cases as a barrister, I would be astounded by the number of conferences she had had and the whole wealth of issues she had explored.

We defended a trial together for about a month at Preston Crown Court. The case was overwhelming against both of our defendants. Witness after witness would come and give apparently devastating evidence about her defendant and I would sit there and think “What on earth will Nicky ask him?”. But every time – she would stand up; gown a bit dishevelled; wig not quite straight on her head; papers falling from a pile onto the floor – and produce killer question after killer question. It was obvious that the jury loved her and at the end of the trial – she gave the best defence speech that I have ever heard.

She also appeared in front of me once I was appointed as a Judge and, of course was just what was expected – a powerful advocate; immensely well prepared; an expert on the law and fearless in putting her case. 

Her death is a sad waste of all that energy and talent and the Northern Circuit and 9 St John Street Chambers and the staff at Bolton will miss her terribly but the real loss, of course, is suffered by Mark and her family. All of our thoughts are with them today.

Thank you

HHJ Tom Gilbart

Nicola Gatto

The way we work as barristers is a deeply personal skill. We all find ways of doing it which suit us. From the way we go about preparing something to the way we ask a question or make a submission.

Nicky’s way of doing it seemed to involve making copious notes in almost indecipherable handwriting on every blank space on the witness statements and then shoving the entire bundle into the washing machine on spin cycle. You would look across at her at court and she would seem to be scribbling away in the lines between the notes already made, with the papers now carpeting every spare inch of the table before her.

And that method produced a mighty fine advocate.

Often when you praise an advocate’s tenacity and industry it can seem like less of a compliment than when you praise someone for their intelligence or eloquence. I want to make it clear that Nicky had both eloquence and intelligence in spades. She allied those skills with the aforementioned tenacity and hard work, and that made her a truly formidable opponent. A complete pain in the backside to be against, but for good reason.

I had the experience of being against her on both sides of the courtroom, I have co-defended with her and we have swapped many a return between us. I briefly led her, before I had to return the case. From that I am well placed to sum her up with this simple phrase. She cared.

She cared about every case, every client, every victim. She cared every single day of her working life. She cared about every result. She cared about doing her very best.

She once said to me that she “gave good speech”. I have no idea how she translated the notes she had made on pages ferociously torn out of a blue notebook into such well crafted closing speeches but she did, she gave good speech. Every one different. Every one a gem.

And so it is that when Nicky tragically passed away this week, the legal profession lost a really, really good barrister. More than once in recent times I had said to Nicky “come on, apply for Silk”. She would shrug me off, but she should have done. When my pupil supervisor met her for the first time over twenty years ago he came away from their conversation and predicted she would take Silk. In my estimation she had all the skills.

Once we were against each other in the Court of Appeal. We got the train together and were chatting about the case. She kept referring to something that had been said in evidence. I was adamant it had not featured in the case. She dug out her annotated transcripts. She pointed out the passage of evidence to which she was referring. I had to break it to her that she had been sent the transcripts of the trial where the jury had been discharged, not the one that led to the conviction that was being appealed.

The colour drained from her cheeks. I gave her my copies of the correct transcripts. We were about 45 minutes outside of London. She hurried off to a table on her own. There was furious note scribbling. When she returned the transcripts to me, she had miraculously found a washing machine with a vigorous spin cycle, despite the fact we were on a train. When she stood up to address the court, she gave a faultless performance.

I found out she had passed away when I was in the midst of a case dinner. Counsel who had strived hard over the previous weeks enjoying the camaraderie of the Bar. It was so apt that I was at an event where Nicky would absolutely have been in her element. I am not suggesting that Nicky necessarily liked hanging out with barristers, but on such occasions she would absolutely be the life and soul of the party. Not by anything else other than being a teller of hilarious tales.

If you ever read a book by someone like Bill Bryson you sometimes wonder how so many interesting and funny things can happen to one person. At the Bar, that was Nicky. Things happened to her and around her that she forged into brilliantly told stories. Always told with a laugh sown through her words and eyes wide with mirth.

I will share one with you, one which is a circuit legend. One day, part heard in a trial, she wandered into court without her glasses on and saw the court clerk at the front of court. She asked the court clerk if the Judge was in the building yet. Except she asked it in a colourful way by enquiring “Is Rat Face in yet?”

“I am Rat Face”, came the reply. It wasn’t the clerk. It was the Judge who had wandered in to find something, still in shirt and tie rather than robes. These things happened to Nicky. And we loved listening to them.

In the days since her passing I have been sent or seen so many messages that refer to her presence in a robing room. She will be sorely missed by this Circuit and beyond. She will be missed by my chambers. I cannot quite believe that I am going to walk through the conference room corridor and not see the explosion in a photocopier paper tray that was Nicky sitting at a table, spinning a dozen different cases.

Of course none of us will feel the loss as keenly as her family. Her husband Mark, a fellow member of chambers, and her two sons. As ever, all our thoughts are with them.


Imagine that year upon year have passed and there has been no increase to the remuneration that you receive for the work you do. And I mean not even 1% here or 3% there.

Imagine that year after year has passed where you have been warning anyone that will listen that the lack of increases are playing a significant part in your colleagues leaving and not being replaced. Imagine trying to tell anyone that will listen that the exodus is causing real problems in getting the job done.

Now imagine that those who are responsible for what you receive half listen and ask someone else to look into it for them, to let them know if you are right in what you say. Then imagine that this person comes back and says “yep, they are almost spot on, so spot on that you need to increase the rates by a minimum of 15% immediately.”

Imagine how relieved you would be to finally be listened to.

Now imagine that you get told this good news in November 2021. And you wait, and you wait, and you wait. You wait for the 15% minimum that is immediately required. And you are still waiting in July 2022. Meanwhile people are still leaving, the cost of living is going up.

Then imagine that the people responsible for paying for your services and your labour finally acknowledge that the immediate increase you have been arguing for and waiting for is, in fact, necessary.

Now imagine being told that the increase is only going to be implemented in a way that you will receive the increased rate in a year or more from now. Imagine that you are told that the “immediate” increase that you are awarded in July is not going to be paid for any of the work you do that month. Or in August. Or even in September. Imagine that you are told it is not going to be paid on the majority of the work that you do in October and November.

Imagine being told that most of the work you do in November 2023, two years after the minimum amount was recommended immediately, will not be paid at the increased rate. Imagine being told you are likely to still be doing work in November 2024 which will not be paid at the increased rate.

If you have imagined all of that, you do not have to imagine why it is that criminal barristers have voted by an overwhelming majority to say “no more” and stop work from 5th September. This is not a “strike” as such, this is the profession saying “you know what, most of us just aren’t prepared to do it any more.”

No matter what you may read about levels of income, no matter what you imagine barristers earn, the independent report by Sir Christopher Bellamy makes the case that the junior criminal bar need paying more and paying it immediately. The data makes it clear. Logic makes it clear.

The only answer that the Government have is to mislead. They mislead about the cause of delay. They mislead about average increases. They mislead about their “generosity”.

If the Government had listened to the junior criminal bar through the years, we would not be here. If the Government listened to the recommendations of the independent report, we would not here. If the Government had listened when the disruption to the system was less dramatic, we would not be here.

The Government still have time to listen and time to talk. We have a Lord Chancellor. We have a functioning Treasury. They have the relatively small sums available to them to settle this. The Bar have a willingness to work with them that is, perhaps surprisingly, undiminished despite the Government’s previous cavalier and callous attitude.

Imagine if the Government did the right thing, starting with applying the fee increase to the work in progress so that junior criminal barristers feel the benefit of the increase on work they are doing now? If they did, I imagine the criminal justice system will survive. If they do not, imagine the chaos that lies ahead?

Brave New World

In H.G. Wells’ War of the Worlds the narrator meets an artilleryman who has also survived the initial onslaught of the invading Martians and their walking machines equipped with heat rays. The artilleryman explains to the narrator that he has already decided the Martians cannot be defeated and that the only chance of survival for the human race is to start a whole new world underground, away from the deadly heat rays.

The artilleryman describes a society living in a network of sewers and other tunnels. He talks of areas big enough to play cricket, of schools and universities. He tells the narrator that he has started work already on the scheme and takes him to where work has commenced.

For those of us born in the seventies, the next words will always be spoken in the voice of Richard Burton as the narrator observes

In the cellar was a tunnel scarcely ten yards long, that had taken him a week to dig. I could have dug that much in a day, and I suddenly had my first inkling of the gulf between his dreams and his powers.

That short passage and the notion of crazy ideas obviously falling short of reality was immediately brought to mind when I read a short article penned by Lucy Frazer MP about delays in the criminal justice system and her solution to the problems that was published in the Daily Telegraph.

Her solution was to make sure cases were listed more quickly. This is a solution in the same way that a doctor telling a diseased patient to get better is a cure.

When I read on to what her plan was, I was a little surprised. The answer did not lie in more courts, judges and advocates being available to clear the backlog and progress cases. The answer, it seemed, owed more to the science fiction of Wells and Asimov. The answer was artificial intelligence.

Apparently AI could replace the judicial function of listing. When counsel have been unable to obtain a date from a Judge that fitted in with our diaries we have often joked that “the computer says no” when back in the robing room. This MP wants to make that the reality.

Anyone with any experience of MoJ and HMCTS computer based schemes would immediately foresee millions and millions being wasted on a system that would end up listing a trial for a case in Manchester in the court at Maidstone. Last week.

But it is not an instinctive mistrust of the ability of government to have an effective IT rollout that caused me to observe that there was a gulf between her dreams and the power of AI, it was the sheer ludicrous nature of the suggestion.

Listing is intrinsically a judicial function. It involves competing interests, at the heart of which is often the competing interests of a myriad of different cases. It is central to the issue as to how long defendants wait in custody for their trials. An algorithm may be able to identify how the production line in a sausage factory can best work, it cannot decide on whether the 12 year old complainant or the defendant that has been in custody for a year should have their trial heard first. And an algorithm cannot hear the submissions that would speak of those competing interests.

Lucy Frazer prayed in aid her understanding of the criminal justice system. I cannot countenance how anyone with experience of the system could suggest this as a solution. It is as realistic as playing cricket in a sewer. And probably contains as much in the way of BS.

The criminal justice system needs no more amateur observers with their ideas of reinventing the wheel when what the system needs is just more air in the tyres.

Dealing with the current backlog and improving the efficacy of the system requires less money than would be wasted on some I, Robot listing officer but it needs funding on the things that every single Judge and criminal lawyer would be able to identify. It is time the government started to listen to people whose only ambition is to improve the system, not gain a promotion.

The article speaks of front loading case preparation and all the usual stuff. Part of the solution is in more work being done as soon as possible. That requires more funding for the police, more funding for the CPS, more funding for lawyers to be paid to do the work, more lawyers with time to do the work. Ally that to more judges to hear the trials and more courtrooms open for them to sit in and the problem is solved.

It doesn’t take daft ideas to improve things. It requires honesty and investment. It’s simple. Whilst Lucy Frazer is ten yards along a tunnel that will lead to nowhere, there are countless men and women who know the answer. Engage with them, not science fiction

HH John Dowse

Last week we learned of the passing of HH John Dowse, retired Circuit Judge who sat in the North East and former Deputy Head of Chambers at 9 St John Street, Manchester. A distinguished and successful career.

For many of us, it is not the judicial initials that went alongside the His Honour title that we knew John by, but simply “JD”. And when the world lost JD, we truly did lose a fabulous man.

JD taught me what it meant to be a part of, and contribute to, the success of chambers. It is only through the hard work and excellent judgement of people like JD that chambers can work as a business. It is by JD’s example that I realised that chambers is also a family.

Shortly after I joined chambers he became the first Deputy Head of Chambers. He had recently organised the move from our previous premises to 9 SJS. I served with him on a management committee that dealt with moving our former senior clerk from a percentage to a salary, worked with him when he drafted the basis for the chambers’ constitution and assisted him as he transformed the way that chambers was run. He laid the foundations for the success that chambers was to enjoy as a business for the twenty years after he left to go on the Bench.

But he would never have wanted chambers to be “corporate”. On the day that I was offered tenancy in chambers, after I had called my mum and dad to let them know the good news, my pupil master told me that JD wanted to speak to me in his room about some work I had done for him. Back to reality. I wandered down the corridor to JD’s room, knocked on the door and went in. He was in his usual position at the head of a boardroom style table. In front of him was a bottle of champagne, half a dozen glasses and the same number of criminal practitioners standing around. He popped the cork and welcomed me to the family.

I was to spend a lot of time over the next eight years or so in that room, talking to JD. And laughing with him. John was a master of deploying pantomime-esque feigned ignorance to comic effect. His eyebrows would pop up, his voice become that little more Southern, giving him the every appearance of one of Fagin’s boys, overacting their innocence. I imagine that most people would have the word “mischievous” in their descriptions of John.

He had photos of his children in that room. It was always obvious that the photos were not there as mere decoration, nor were they there because that is what people do, but because JD wanted his family with him in some way at all times. Whenever I saw John after he went on the bench, it would not be long before he gave me an update on something in the life of at least one of his children. Never in a boring way. Never in a boastful way. Just out of irrepressible pride in his kids.

He was the pupil master of my contemporary and friend Rachel Wedderspoon (now Employment Judge Wedderspoon). Rachel and JD were as close as family to each other, and in many ways she has followed in his career footsteps. He would have taken no credit for her success but basked in pride.

When I was asked to be the Deputy Head of Chambers my first thought was of JD. I had big shoes to fill. If I did half as a good a job as he did, I will have done well.

Whenever I saw JD he would greet me with a hug. A man that I had only spent seven years or so with in chambers, a Circuit Judge, would give me a big hug when he saw me. Almost as if we were family…

My thoughts are very much with his family. His wife Elaine and his children, Francesca, Philippa and Jonathan. I hope it will be some comfort to them to know that mischievous, irrepressible JD will be missed by many of us.

The Unacceptable Tweet

When I was interviewed during my QC application I was asked why I thought that “Diversity” was one of the attributes that was required in aspirant Silks. Part of my answer was that, as a junior, I had looked to Silks to provide an example. That Silks were not just leading counsel but are, more often than not, the leaders in the profession.

This weekend I have spent a lot of time reflecting how best to react to a Tweet from a fellow member of the Bar, Jon Holbrook. I have debated with myself whether referring to it is amplifying the original Tweet and adds to the issues created by the original post. I have also reflected over issues surrounding free speech.

After that period of reflection I am quite satisfied that I have no choice other than to respond to the Tweet. And to make it clear that it is reprehensible and thoroughly unacceptable.

The context is that Mr Holbrook Tweeted about a case where a schoolchild and her parents challenged a school’s rule about hair which had seen her excluded from the school for periods of time. Her argument, ultimately successful, was that the rule was discriminatory.

His Tweet stated “The Equality Act undermines school discipline by empowering the stroppy teenager of colour” and quote Tweeted a short film about the original complaint.

I repeat – this Tweet is wholly unacceptable coming from a member of my profession.

I have no difficulty at all with Mr Holbrook seeking to debate the rights and wrongs of the Equality Act. I suspect he would be very wrong, yet it is an argument he can try to advance. But this Tweet has three very significant issues.

The first is that it is linked to the story of the young woman in the video. The implied criticism is, contrary to the fact that the school ultimately settled her complaint, that this was a frivolous and unfounded complaint borne out of caprice and not due to direct or indirect discrimination. Mr Holbrook, from the comfort of his keyboard, has implied that the young woman has “played the race card”.

In the BSB Code of Conduct core duty 5 states that “You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.”

The BSB have issued guidance about the use of social media and the interaction with CD 5. For my part it is difficult to see how the Tweet of Mr Holbrook does not demean the complaint made by the young woman. He has portrayed her not as a victim of some form of discrimination but as nothing more than a stroppy teenager who played the race card.

That is not acceptable.

Secondly Mr Holbrook’s Tweet links his perception of the Equality Act being used to undermine school discipline to one protected characteristic and one only. Race.

There are 9 protected characteristics. He does not complain that disabled students undermine school discipline by utilizing the Equality Act. Or students who follow a particular religion. Or male teenagers. It is “a….teenager of colour”.

Race is the one protected characteristic which is singled out as being misused by those bringing complaints under the Equality Act. We circle back to that phrase “playing the race card”. A phrase used to undermine those seeking to redress an injustice.

That is wholly unacceptable.

And finally it is the use of the phrase “stroppy teenager of colour”. It instantly sets the non-white teenager as being different. It sets them as having an advantage over their white peers by this legislation. It makes the accusation that the challenge to an unfair and discriminatory rule is based not out of legitimate complaint but a desire to cause trouble. It instantly diminishes any such complaint.

But it is so much more. “Stroppy”. It almost says “uppity”. It resonates with “know your place”.

It is simply unacceptable.

So what? Why does it matter?

I have read the Tweets that support Mr Holbrook. One of them came from someone who Tweeted that the Equality Act also facilitates BAME candidates being promoted beyond their competence, a view Tweeted by a man who also sought to justify a comparison between people of Afro-Caribbean heritage and primates. Just typing that sentence made rage creep through my body.

Mr Holbrook is not directly responsible for the views of others. His Tweet gives encouragement, however, to those who see the vital protections afforded by the Equality Act as nothing more than an unfair advantage to the undeserving. It is a fuel of racism.

Words matter. How we express ourselves matters. That an advocate should Tweet something which emboldens such a racist to add their support to the Tweet is appalling.

It is not acceptable.

And how would the teenager who is visually different from Mr Holbrook, the “teenager of colour”, who wants to be a barrister feel upon reading Mr Holbrook’s Tweet? Would they feel that this was a profession for them?

That is why it is vital that I, amongst so many others, say that this is not acceptable.

But saying is one thing. It is an important thing. But I feel that more needs to be done. Mr Holbrook has had more than enough time to reflect. He has had plenty of people point out the issues with what he has said. And yet the Tweet remains.

That is why I have decided to report Mr Holbrook to the BSB. This is something I have never done before. I don’t want to “cancel” Mr Holbrook. It is not for me to determine ultimately whether he has breached the Code we share. It is, however, vital that our Regulator examines this conduct.

Those of us that are a part of this profession are privileged. Mr Holbrook uses that privileged profession to be a “commentator” in publications like Spiked. He has a right to freedom of expression. But with that right and the enjoyment of that privilege comes a responsibility.

In my view Mr Holbrook is responsible for expressing a view which damages my profession and diminishes the standing of our profession. He hasn’t uttered a word of apology or contrition or acknowledgement of people’s concerns. Of course, that is not the way of the contrarian. He has not even responded to the repeated Tweets of the mother involved in the story, Tweets which contain a dignity which jars against the cowardice of silence in response.

This is why we have merchanisms of complaint. It may well be that I am wrong. That’s why others are in place to judge Mr Holbrook. But to stand by and not say anything, to not do anything, would be to abuse the privileged position that I hold.

I have no doubt that some will consider this approach as “virtue signaling”. I am not signaling my virtue. I am seeking to uphold the values which seem core to the bar taking its place in a modern society. With the privilege of our regulated profession comes responsibilities.

It is possible to debate the utility and purpose of equality legislation without implying unfair criticism of an individual and without a lazy generalised swipe at BAME teenagers.

Nick Kennedy

I met Nick when I was a young man playing cricket for the Circuit. From that first meeting we were mates. Well, I say we were mates, I certainly felt like he was my mate. I have no idea whether he thought of me as his mate. But that was one of Nick’s great talents. He made you feel like you were mates. Not in a false, bonhomie kind of way. In a “he is my mate” kind of way.

And it is always very sad to lose a mate.

When you walked into a robjng room that contained Nick Kennedy, the robing room was Nick Kennedy. Or Nick Kennedy was the robing room. Either way, you could sense his natural, Northern charm from the moment you walked in and he was at one of the tables, chatting away and greeting all comers with a smile.

There are not many of us that manage to be ourselves in the courtroom. Nick managed it. He prosecuted me in a firearms case a few years ago in Liverpool. Now imagine being cross examined by someone who had you believing that they were your mate? Believing that he was your mate right up to the point when the trap was sprung with you at your most disarmed. His style of cross-examination was as if he was about to let you in on a secret, the downside being that the secret was that you were lying. My defendant did not enjoy the experience, although I am fairly certain the jury did.

It was with great sadness that I learnt that Nick had passed away. He loved sport and our conversations would often revolve around cricket and the England team. Often there would be tales told of away trips to see them in foreign climes. If ever someone deserved a retirement of more trips like that it was Nick. 10 years as head of his chambers should have been followed by a time to enjoy his retirement. The only comfort is that he enjoyed life so much, and everyone was allowed to enjoy it with him.

John Broadley

I once spent a few hours in a pub with John Broadley. I should make it clear that I was in a pub with John Broadley on more than one occasion, but this relates to a specific occasion.

As I say, the pub visit was over quite a few hours of an afternoon. John spent the first hour telling stories. John then spent the second hour telling, largely, the same stories. And then the third. Those of you who did not know John might now be thinking that I am describing a crushing bore. The thing is, I am not. Because despite the stories being told on a loop, each telling of them was funny. And I mean properly funny. Freshly funny. The anecdote may have been the same but with some new punchlines dotted along the way, some new witheringly funny descriptions amongst the details.

Despite the wine causing repetition on that one occasion, John had an immense stock of funny stories and a considerable talent for telling them. Often they were about himself with no concern for the fact that he was the butt of the joke. And they were always told with the skill of a raconteur displaying a personal, natural style.

There is a large part of me that would both love to know how John would describe me, because it would be bloody funny, and also a way in which I don’t want to know because it would be frighteningly accurate. As reminded by Tom Gilbart, my friend in chambers, his description of a Judge’s court in Manchester as “Narnia – always winter, never Christmas” is a classic example.

As well as great company, John was a very kind man. When I had been around the Circuit for about 3 years I had a bout of serious illness. John wrote to me. Twice. Both letters containing warm wishes and the tonic of a story or two. At that point I barely knew him.

I remember there being a stranger in the robing room one day. They were clearly new to all of this. Very new. They were trying to put their wing collar on. Upside down. Many of us hid a snigger behind our hands. It was John who walked over and said “come on son, let me give you a hand”.

When I took Silk last year John wrote to me again. By now he was suffering from significant health difficulties. The handwriting betrayed the fact that there now existed some frailty. The warmth and humour was as robust as ever. The letter was characteristically hilarious. I can’t share it with you because it was also undoubtedly libelous.

JB was a fabulous jury advocate because jurors felt the warmth and appreciated his razor sharp analysis. He had the bedside manner and precision of a surgeon. He was the advocate of choice for many a firm of solicitors in their “big”cases but he was never one of those brash and arrogant barristers about his work. He was far too busy making us all laugh.

I will always remember John as a man who loved a gossip, loved to tell a story and loved life. His laugh, often at his own punchline, was infectious. But he was not a man for whom the label “joker” is right. He was so much more than that. He was kind. The robing rooms of the Northern Circuit are diminished by his absence.

My condolences to his family and friends, of which there are so many.

108 days later

I have not blogged for a while. Lots of things going on when nothing is happening. Then today I saw a Tweet that came from the AG’s office. This was the Tweet:

Now it may be that I am just a man on the edge of an angry outburst, but if I am, this was the moment Michael Douglas’s air conditioning packed up in his car in the film Falling Down.

I am going to leave aside the asinine “the UK is a global leader in this space in Crown Courts”, I mean that is almost too stupid for words. Or the words that have been used are too stupid to actually mean anything. But I am not going to get worked up about that.

I do not find it that upsetting that the response does not even attempt to answer the question posed by Jeff Smith in Withignton. Well, not that upsetting. It is a politician’s answer. Getting the message that they want asserted, no matter what the question is. Although I remind myself that this is the office of the AG and not a party political broadcast. But I can cope with that via some breathing exercises.

It is the last part of the Tweet. “Jury trials restarted in May, digital tools have been harnessed in over 10,000 cases, and all courts will have re-opened by mid-July.”

Everything back to normal then. Or almost.

Pass me the baseball bat.

I went through every Crown Court list for today’s business. That showed 40 trials either continuing or listed to commence today. Let me put that into context for you. On a perfectly ordinary day I would expect there to be 15 trials either part heard or listed to start in Manchester alone. And that wouldn’t be a busy day. There are 70 court centres that contributed to the published lists I looked through. You can do the maths. If every single one of those buildings only had one trial listed we would improve on the 40 trials by an additional 75%.

This is a tiny fraction of the work that would normally be done. Tiny. And is considerably more than was being heard two weeks ago. The first jury trials were held two months ago and yet we are still not even at 1 for every Crown Court building.

Then I go back to the Tweet. The “look we are back to normal” Tweet. The “we have this crisis beaten” Tweet. And I seethe. Not because I am an angry young (middle-aged) man. Not because I want to be this angry. But because of the utter deceit it involves.

The Criminal Justice System was in crisis well before Covid-19 but I am going to leave this to one side for the moment. Due to the pandemic there are people who will wait in custody for over a year for their trial. There are victims who will have no idea when their cases will be heard. And this Tweet pretends that we are doing more than coping, we are the world champions of Crown Court coping.

We are not.

108 days ago, when the last Crown Court trials were abandoned at the start of lock down, every participant knew the challenges that lay ahead. 108 days later we have barely a trickle of trials. That is 108 days without a credible plan, without honesty as to the true state of the criminal justice system. Every day that goes by the situation deteriorates. We should not be at the early stages of working out how we can maximize the number of trials that can take place. Yet that is exactly where we are.

There is no credible plan for getting the number of cases heard to even half of normal capacity any time soon. There is no credible plan to deal with cases involving more than one defendant in most court centres. What there is is a deafening silence about what we are going to do about it. There is an attempt to make it look like there isn’t a problem. There is little help for the practitioners emerging from lockdown to find they are still locked out of their incomes. There is £100 million for; zoos; £1.5 billion for the arts; and a tenner for everyone that wants to go out for dinner next Monday. But zero to assist the people that will be needed to prosecute and defend these cases that lie at the heart of our democracy, just as soon as someone comes up with a plan as to how those cases can happen.

This deceit, this lack of planning, this cavalier attitude toward the gravest of situations is a scandal. The fault lies fairly and squarely at the heart of the Government.

I have no idea what “but the UK is a global leader in this space in Crown Courts” means. But I do know that the current dereliction being shown by the Government means that Justice and those who serve it, are left in a limbo.

Do not Tweet nonsense. Do something.

The Gender Brief Gap

Life comes at you in waves. I wrote this blog back at the beginning of March, ready to publish the moment that I had finished the trial I was in at the time. There are ways that seems a lifetime ago. Maybe even a different life. Events big and small meant that this blog did not get published then.

Now I have come to realise that often there isn’t going to be the perfect time to do all we intend to do, that waiting can mean missed opportunities. I know we all have a host of problems that we face but this was important enough to me to have written about when we all, perhaps, were someone else. And so it is still important to me now. Important things should not go unsaid.

There is a significant issue which is prevalent in the legal world. It is something which I have always known was there but has really become apparent to me in recent times.

A little background: Before becoming a QC a significant proportion of the work I did were sex cases. My diary also contained serious violence, fraud and drugs but I was not someone who went from one “big” multi-handed trial to another. I have written before about how the legal profession seems to value some areas of work more than others, that the diary of “paper heavy” fraud trial is seen as being better than back to back sex trials. It would appear that we have forgotten that complexity is not only measured by page count and ELH.

Now I am a QC, my work has changed. And it is that first twelve months of being in silk which has really brought something home to me – there is a gender brief gap. Men are disproportionately briefed in the “serious” cases that involve murder, guns, drugs and fraud.

I can go back to November 2018. In the run up to finding out I had been successful in my application and then in the period straddling my appointment, I was the junior in a couple of cases. From March I have, with the exception of one trial that was leftover from my junior practice, done a number of cases in Silk. From November 2018 the subject matter in each trial has been; Trial A – double murder in a gang war; Trial B – conspiracy to murder in a gang war; Trial C – a grooming gang; Trial D – murder by strangulation; Trial E – joint enterprise murder; Trial F – joint enterprise murder with a firearm. Interspersed amongst those trials have been other cases but I want to just focus on the trials. These are the cases where judges have granted certificates for the instruction of a QC due to the seriousness and complexity of the case.

Let’s now look at each case in turn:

Trial A – 7 counsel in total, 3 QCs and 4 juniors. Total number of women? 0

Trial B – 21 counsel in total. 7 QCs and 17 juniors (3 of whom took Silk during the case). 4 women. That’s 19% of counsel in the case were female.

Trial C – 7 counsel in total, 1 QC and 6 juniors. 3 women. That’s 42%.

Trial D – 4 counsel in total, 2 QCs and 2 juniors. No women.

Trial E – 10 counsel in total. 5 QCs and 5 juniors. No women.

Trial F – 17 counsel in total. 8 QCs and 9 juniors. 1 woman. That’s 6%.

In the cases trials I have conducted in the last 18 months, only 12% of other counsel have been female. Notably, if you take out the one sex case that I did, this falls to 8%.

None of the cases have featured a female QC who was instructed in that capacity (one of my fellow new Silks was in Trial B with me which we started out as juniors).

It is entirely possible that my workload is unrepresentative, it is a statistical outlier. Yet when I look at work to come I reckon there are probably something like 58 counsel involved in those cases. At the present moment in time there are two women involved, one who prosecutes a sex case and one who is the prosecution junior in a baby shaking case.

I also know that every female barrister that I have spoken to about this will recognise the picture I paint. They have the experience of being the only female in multi-handed cases. They know that their talented female counterparts are not instructed in such work in the same volume as their male colleagues.

There are factors at play such as the retention of females at the criminal bar but the attrition rate is not such as explains this. This is not a question of there not being females available to conduct these cases because there are. Plenty of them. And whilst I am most reluctant to even have to deal with this potential explanation, the women that are available are more than capable of doing the cases.

So why is it that a pool of available and talented advocates are not instructed in these cases? I am afraid I don’t know the answer. At least not a detailed answer.

In general terms it is clearly a problem that can correctly be labeled sexism. That sexism may be the attitudes of others (clients wanting a male barrister), structural (women are pigeon holed into sex cases), ingrained (courtrooms packed with men are the norm in these cases) or overt, direct sexism.

What I do know is that it is wrong. How do we put it right? I don’t know that either.

That is part of the reason for this blog. I am really interested in the suggestions of others for the solution to this issue.

One thing that occurred to me is that organisations need to be accountable for what happens. We need to be able to see what is going on. Whilst this will not make me very popular in professions which are already burdened with administration, is it not time that we required solicitors and barristers to keep and publish data on the instruction of advocates in certain cases? It is only by transparency, it is only by us all seeing the problem, will the solution emerge. It is only when we all acknowledge the gender instruction gap, will we begin to close it.