I have always been at the vanguard of social change. Not in a personal way, affecting change, but as a coincidental bystander. I guess you could say I am Forrest Gump but with less running. Examples of my place in history include the fact that I was introduced to the world at the same time as decimalisation. I was a child from whom Margaret Thatcher snatched milk. I sat the short lived 16+ examinations as the forerunner to GCSEs and consequently have 8 O-Levels and 5 CSEs in 8 subjects. I was in the first year of students to have student loans.
More importantly I was the first specialist criminal pupil in my chambers. Until 1994 chambers had always operated a policy of offering essentially common law pupillages. At that time chambers did a mix of personal injury, employment, family, chancery and crime. Chambers identified a problem. The very talented people who had come before me had started out doing a blend of disciplines but each of them had ultimately chosen an area other than crime as their career developed. One of the main reasons for this, even at that time, was the fact that other areas of law were more lucrative.
So chambers took the decision to recruit someone with the expectation that they would only do crime. I was the best they could manage. That decision coincided with a need for specialisation. Prior to that time, criminal practice and procedure had evolved slowly. It was only in the early nineties that criminal justice became such a plaything of politicians. We were confronted with a dizzying array of sentencing changes, hearsay rules, bad character, disclosure regimes, more sentencing changes, new offences, repealed offences and consolidated offences. Oh and the occasional change in sentencing. Procedure rules and guidelines seem to tumble from Archbold. I now have Advocate Toolkits and write this as I wait for my case to get on as the Judge deals with a Ground Rules Hearing involving an intermediary. Criminal advocacy is a specialist skill requiring experience, knowledge and a degree of….. specialism. When I began my pupillage I was a few years away from having to draft my first defence case statement, my pupil master never uttered the phrase “Bad Character Notice” and I would never speak to a client without my solicitor being present.
In the time since my pupillage fees schemes developed. We used to be paid a fixed fee for certain cases, a claim submitted on a form with a green coloured corner, and for other more serious cases we put in a claim based on the hours of preparation to be taxed by the Court Service on the now mythical “red corner” forms. I recall in my pupillage my Pupil Master and other counsel in the robing room in Bolton discussing whether barristers should consider going on strike. Now we have always been ahead of the game up North but this was forward planning to a remarkable degree. I am sure they had good reason to strike, I just wish I had a time machine to find out what it could be.
In 1997 (I think) we saw our first graduated fee scheme. This scheme sought to introduce some savings and to provide a better model for the Government to predict the Legal Aid spend. In due course VHCCs replaced those remaining cases which were paid upon submission of a red corner bill. A number of alterations to those schemes and no upward increase in any of the fixed rates brought the Bar to the edge of truly militant action in 2006. The Bar were only placated by the review of advocacy remuneration conducted by Lord Carter. The Carter fee scheme was introduced in 2007.
We now have the latest version of a graduated fee scheme. If Lord Carter was to examine the proposed “reforms” he would no more recognise this model of remuneration as would Julius Caesar recognise modern Rome. The odd relic here and there but a landscape changed beyond recognition by increasingly incompetent politicians.
The reality of the situation? Well for the future of the Bar it is twofold. Less and less chambers will even offer pupillages. The Government is very keen with a restructuring of the market. It is a market they do not understand. A pupil does little to increase the income of chambers. Over time yes they do but at the beginning the investment is all one way. And when we look to cut overheads the cost of having a pupil is in many ways an easier thing to cut out of the budget than the wage of a member of staff who is already flesh and blood relying upon you for their wage.
The other impact is that those pupils who are offered a place with criminal work will be actively encouraged to undertake other areas of work. And we go back to the problems of 1994. The advocates of the future will have less opportunity to garner the experience that the advocates of today have had. They will also have plenty of opportunity to have their heads turned by the financial rewards elsewhere. Surely a Conservative politician can understand the economics of that?
If the Lord Chancellor does not believe that this will be case perhaps we should return to Ancient Rome (you see, this is not just a random stream of thoughts, there is some vague plan behind all this). A colleague in chambers recently brought this to my attention
“I limited barristers’ fees to 100 gold pieces a case…by thus reducing the barristers’ fees…I damaged their prestige with the juries who were thereafter more inclined to give verdicts corresponding with the facts of the case. I waged a sort of war with the barristers… I encouraged the appearance of a new sort of advocate – men without either eloquence or great legal expertness.”
The quote comes from Claudius, God by Robert Graves. It is a novel of historical fiction from the 1930s but it could be a blueprint for the current Lord Chancellor and his reforms. And it should serve as a warning for anyone who does not believe the damage that is being done.
What the Bar are doing on Friday 7th March is not just about our personal incomes. It is action that is taken to preserve the justice system of this nation. It is not a system that is perfect. However it is a system which requires talented advocates now and in the generations to come. The absence of those advocates will only serve to diminish the efficacy of the courts and in turn diminish justice. Perhaps this is the time for me, and all of us, to be more than a coincidental bystander. Now is the time to shape this piece of society.