Those Pesky Silks

Have you ever been sitting in the robing room and witnessed one of those exchanges between opponents where Prosecution counsel tells Defence counsel something that the police have done and Defence counsel flies off the handle? So you get lots of “outrageous!” exclamations interspersed with “abuse of process” laced with “prosecutorial misconduct” as Prosecution counsel tries to finish her sentence. Off flounces the Defence barrister in high dudgeon. Fast forward four days and you are still in the same chair in the robing room (probably waiting for the same floater to get on) and you realise the trial in which they were involved has reached the stage when the jury went out. Whatever the first, intemperate, reaction there was no foul play; the process cured any prejudice, should there have been any. 

We learn valuable lessons in life. I learn them from exchanges like that. I also learned one from the time of the infamous “Deal”. The lesson I learned there was that the mistake made by the CBA was not in striking the “Deal” but in doing so without a chance for the membership to have their say. Ultimately I was on the wrong side of that argument, but I was allowed my place in the process, albeit belatedly. 

So we now have the proposed consultation on a new payment scheme for advocacy in the Crown Court. And there have been a lot of instant reactions to it. I am yet to get to grips with the detail of the scheme, certainly in terms of the numbers in the boxes. The important thing is that this is a consultation document, not a final scheme. 

When I have mentioned this on Twitter some have responded by saying “History shows us how the MoJ do not listen to consultation responses…” I would respectfully disagree. History shows us that they may well be prepared to listen to responses on the detail of things. Back in the days of the Transforming Legal Aid consultations the “Next Steps” sequel was the consultation in which the proposals had been refined to take into account some of the concerns raised. I appreciate that we were not listened to across the board, but remember this consultation is not about a headline grabbing policy like BVT. This is all about the detail of a scheme. And this is your opportunity to have your say about the detail.

What you say about the detail is entirely a matter for you. I imagine, however, that a response which just says “This is a pay increase for the Silks, arranged by the Silks, at the expense of the Juniors and we are getting sold down the river like we did in the Deal” will not achieve much in the way of change. And it lacks a certain degree of rational thought. 

I was dead against the Deal. But it is history now. Quite ancient history. And has about as much to do with this proposed scheme as…let’s say, the solicitors revised protocols on dealing with new cases at the new Legal Aid rates. 

The reason why I say it lacks a degree of rational thought is because the Working Group that has been (as the name suggests) working on this scheme has not been some Bond like committee of super villains exclusively made up of Silks meeting in the CBA’s secret volcano bunker. It has comprised a cross section of the Bar, including Juniors of a wide range of call and this scheme is, in part, a product of their work. Their honest and freely given endeavour. Please do not fall into the trap of lamenting the avaricious Silks who have the ear of the Government. In doing that you are insulting many a fellow Junior that was worked on this scheme. And you are falling into the very worst of the Daily Mail style traps. 

Disagree about the detail. Do not rely upon a lazy “s’not fair” attack.

And that is very much the point. We all need to not rely upon the fact that the Circuit Leaders back it, that the CBA back it, that the YBC back it or that we take as read the good intentions of the Working Group. We all need to look at the detail. To inform ourselves of what is being proposed with, perhaps, less concern about how it has been proposed. 

So we need information. I note that, once again, Martin Chalkley has been crunching the numbers on behalf of the Bar Council. Such numbers will show why it is that this scheme is cost neutral. I anticipate that it may provide great detail about the impact it will have upon “baskets” of typical grad fees. We need that sort of information and I encourage the Bar Council and the CBA to release such detail as they have and as soon as they can. We cannot have too much information when it comes to our livelihoods and the future of remuneration. 

The detail is required because it takes more that just working out how much one case would pay under the old scheme versus the new scheme. It requires people knowing the impact it will have on them,  not on their best paying case but on every case. 

And the CBA, The Circuit Leaders and the Bar Council cannot rely upon “And so we pronounce it good, therefore it is good” to convince the masses in the style of religious leaders of yore. Where there is detailed concern, we need them to respond, to help us understand. I see that someone tweeted me last night with the figures that a Silk may now receive £37K for a 3 week murder where previously they received £17K. If that is right, I would like to know the thinking behind it. What the leadership must not do is retreat to the secret volcano bunker and adopt a siege mentality. If the rank and file are concerned it is no surprise. Allay their fears, do not dismiss them. 

I can see flaws in the scheme, as I perceive them. I will take time to think them through. For example I can see a problem with the definition of a cracked trial being reliant on the defence CoR. I anticipate that I will blog further on the detail (not that I suggest anyone should care, it just helps me stay sane). 

In looking at the detail though I will do so with one thought in my mind. There is no new money. My ire is not going to be directed at those who are trying to make this pot more equitably divided, even if I believe they have failed in that task. My ire will always be directed at those who choose to underfund the system. 


To the Manor Born

I have not written this blog. This comes from Ian West from the frozen North. I have known Ian for many years due to our shared “interest” in remuneration issues. He has always been committed to achieving fair and appropriate remuneration. 

The views expressed in this piece are Ian’s views. His Twitter name is at the end of this blog so feel free to direct any comments his way! As they are not my views I should point out that I do not share the same view as Ian over some of the issues he raises. He has, however, asked me to host this blog and I am only too happy to do so. Remuneration and the mechanisms of remuneration are important issues. As ever there is a need for wide debate. 


The new Advocates’ Graduated Fee Scheme: To the Manor Born?
This week, the Ministry of Justice (MoJ) published its consultation paper ‘Reforming the Advocates Graduated Fee Scheme’. The scheme has been being worked on by representatives of the Bar Council, the CBA, and (until they walked out in protest) the Law Society with officials from the MoJ for many months. Here is the link to the consultation paper: https://consult.justice.gov.uk/digital-communications/reforming-the-advocates-graduated-fee-scheme/ If you are a criminal barrister or solicitor advocate you need to read it and respond. What follows are my personal, and, of necessity, preliminary views.

The structure of the scheme, in summary, is to largely do away with the proxies of pages of prosecution evidence (PPE) and prosecution witnesses (PW) as components of the graduated fee, and instead to attempt to reflect the work needed to be done on a case by replacing the current 11 offence codes, A – K, with 16 new categories, 1 (homicide) to 15 (regulatory offences) plus a ‘residual’ category 16 (‘standard cases’). Categories 1 – 15 would have within them, sub-categories to reflect different levels of complexity/seriousness within the offence type. Thus, there would be 42 separate levels of ‘basic fee’. In addition, there would be separate fees for up to six ancilliary hearings – PTPH, sentence, etc – and the second day of trial would be paid, unlike at present. So far so good. The architecture will, I am sure, get high marks from all advocates. The scheme is said to be ‘cost neutral’ from a baseline of 2014-15 spend, so the objective is said to be to make advocates’ pay ‘fairer’. There is no mechanism for review and upgrading of fees, but that flaw is not the main object of this piece.
The devil is in the detail – the ‘numbers in the boxes’. Here, I regret to say, the scheme fails the vast majority of criminal advocates – in fact, all but that 10% of them who are QCs. The silks will get a pay rise – a substantial one – whilst juniors at all levels will struggle to maintain parity, and most will suffer (yet another) pay cut. The MoJ has done some worked examples in Annex 3 which show this, but you will probably have done some from your own practice. Two questions, therefore. How, and Why?
The ‘How’ is simple – see the ‘indicative fee table’ in Annex 2. Every fee for a QC – basic and refresher – is twice that of a junior doing the same case, whether that junior is doing the case him or herself, or is being led by the QC – so a 100% ‘silk uplift’. This is, for QCs, a marked improvement on the tables in the current AGFS, where the silk uplift is either 75% or 80%, depending on the disposal – trial/plea/crack. And, of course, the higher basic and refresher fees are paid in the ‘top’ categories, such as 1 (homicide) and 2 (terrorism) i.e. the cases that QCs generally do. So, for silks, ‘double-bubble’!
Why? Juniors may well ask. The cynical ones, including the 90% of juniors who will never be QCs, may answer: because the scheme was, by and large, negotiated on behalf of the bar by… wait for it, QCs. So what have the bar’s leaders said about the scheme? Andrew Langdon, Bar Chair (and criminal silk) said: “These proposals… go a considerable way towards restoring career progression…” The Circuit Leaders, and former leaders, issued a statement saying that the scheme “..promotes quality in advocacy and encourages talented young people to practice in criminal law.” 
This sounds to some juniors (and the Law Society, which has attacked the proposals) like special pleading – “We QCs need to be paid more, and you less, in order to encourage you to become QCs yourselves.” But are young barristers going to be attracted into criminal work which for most will be a diet of ‘standard cases’ by the prospect of ‘jam tomorrow’ – the chance that they might one day reach the Elysian fields of silk? One suspects not. So is it all bad news for juniors? No, some cases will pay better, and the separate fee for the second day of trials, and ancillary hearings is a welcome step. 
But the question remains why should the scheme, which presents the opportunity to redistribute the legal aid ‘pot’ fairly to all criminal advocates, be skewed towards silks? Simple economics would say that it does not. Is there a shortage of silks? No – the relative scarcity of silk certificates means that there are more silks than there is work for some of them. Is there a shortage of applicants for silk? No – the competition is fierce. The fact is, that on a supply and demand analysis – which a conservative government might find compelling – there is absolutely no justification for a silk uplift of anywhere near the 100% proposed. If it were reduced to 25%, or even nil, and the higher pay would simply attach to the seriousness of the case, and not the category of advocate, there would still be more criminal silks than we need, and good and busy juniors would still apply for silk to do the better work, and for the lifestyle change. And, of course, it would allow the money to be spread more equitably for everyone.
So my verdict on the scheme is that the scheme is, like the curate’s egg, good in parts. But it is, as the fees tables presently stand, seriously unfair to juniors, i.e. the vast majority of the bar, and unduly, and unnecessarily, favourable to QCs. I have no doubt that my views, thus expressed, will attract the accusation that I am being divisive. But who is doing the division – the ones who designed the scheme and feathered their own nests, or the ones who complain about it? 
Ian West, Fountain Chambers, Middlesbrough.

Follow me on Twitter: @ianswest.

Raking It In

I was recently involved in a Twitter discussion about something or other when another Twitter user suggested I should acquaint myself with the facts. And then linked me to a story in the Daily Mail. There were some facts in the article to which I was referred. They were deeply hidden amongst the tittle tattle, the perversions of the truth, the views of people presented as a fact and the downright untruths.

This, sadly, illustrates an ill of modern society. When people decry our “post truth” era, when people complain about the EU referendum and the misleading approach by both sides, it is not really the fault of the politicians. It is the fault of some sectors of the media.

Nothing makes you realise this more than an article about something close to home. Like this piece in the Mail today. I started to read with trepidation when the headline said “Lawyers raked in £32.2bn in just ONE year”. The use of the word “raked” told me bad things were coming. It is remarkable that when, for example, there is an increase in jobs in the car industry it is never announced by adding up the incomes of the new employees and then announcing that car workers are “raking” in the total, including the tax they pay. And NI.

Then the line that set the tone of the piece – “despite strikes over their pay levels the legal profession has been booming”. This told me the tone was going to be “misleading” or, as some would have it, “total bollocks”. It may, of course, just have been a sloppy phrase when they used the words “the legal profession”. I mean, I know it was just the criminal lawyers who went on strike. I know that my commercial, civil, planning, admiralty, tax, professional negligence and intellectual property colleagues did not go on strike. It was, probably, just an error to suggest that the whole legal profession had been on strike despite the fact that they were, and still are, “raking it in”.

But then again maybe it was not just a slip of the pen. For the very next line is “lawyers earn almost 24 per cent more than the £26.0 billion they earned in 2011.” This was good news. I raced instantly to my iPad and my online banking. I must take this up with my chambers as it appears that I have missed out on the 24 per cent pay rise.

The article continues in this merry dance of juxtaposition of fact and fiction. The factual substance of the piece is that figures show “that last year lawyers across Britain achieved a turnover of £32.2 billion – almost 24 per cent more than the £26 billion they earned in 2011”.

Let us just, as David Brent might say, unpack that fact for you. Note the word “turnover” but then the use of the words “they earned”. The £32bn is turnover not earnings. Yet this article is written in a way that could make you believe that £32bn is going straight into the pockets of lawyers instead of being used to create jobs for receptionists, typists, admin staff, cleaners etc. And also being used to pay professional fees like accountants and experts. And going back to the Treasury in the form of taxation or the local council in business rates.

Having set the tone earlier with the action being taken by lawyers receiving public funds and then gross turn over figure of the entire legal sector the piece goes on to say that there are 171,198 people working in the legal profession and compares this to the 126,618 police officers or the 153,720 military personnel.

Now these comparisons are totally meaningless. How about comparing it to the numbers of plumbers? Or accountants? Or shop workers? Or brain surgeons? Or magicians? The only point in the comparison is to say “look at how many lawyers there are when the police and the army have been cut?” The not very subtle underlying statement is that for every lawyer that steals a living, there is one fewer police officer available.

What the article has not said up to this point is that the £32bn is money paid to law firms and lawyers by everyone. From the person in the street who wants a will to the oil oligarchs who wants to settle their disputes in the courts of this country. Only £1.6bn is from Legal Aid. The vast majority of it comes from private money. I bet you had no idea that the money you spent on your house conveyance prevented a police officer hitting the beat? You didn’t? Well, that’s because it doesn’t.

It then dedicates a whole paragraph to how legal Chiefs complain that financial pressures means recruiting becomes a struggle but then proclaims that the number of solicitors has risen by 47 per cent and the numbers of barristers by 32 per cent. Yet again the article misses out a distinction between the struggle to recruit into areas such as crime and family, areas that are vital to the functioning of society and are underfunded, and the growth in other areas (also important to the rule of law) but paid for by the private sector.

We then have a whole chunk dedicated to strikes in response to legal aid cuts “which were accused of impoverishing criminal lawyers” (the not so subtle subtext being they said that, when in fact they were raking it in….) and a rehash of the Mulberry handbag ad hominem. These three paragraphs contain no explanation that legal aid rates have been cut, that public funded lawyers are paid a fraction of the rates of their privately paid counterparts and that the growth has been driven by other areas of the legal profession.

In fact this chunk of the piece is sandwiched between the total growth of all lawyers and the view of Dr David Green “no win, no fee agreements” have undermined the ethos of the legal profession, concluding that the “legal profession has lost its way morally”. I do not know whether Dr Green intended to damn the entire legal profession in this way but I can assure him, the Daily Mail and their readers that I have never conducted the prosecution of a serious offence in the Crown Court under a no win no fee agreement….

I have never undertaken a single “no win, no fee” case. Many lawyers have not. Many other lawyers will have done and still maintained the highest of ethical standards. What the article wants you to do is to see all lawyers as avaricious leeches who “rake in” billions whilst complaining their fees are going down.

There are quotes from the Law Society and the Bar Council. But they do not repair the damaging tone of this article. The deliberately damaging tone of an article which is light on exploration and explanation but heavy on adding two and two together to get 32bn. Nowhere does it explain that lawyers are involved in non contentious work in drafting etc. Nowhere does it explore that a growth in the sector is actually involved in attracting business to this country. Nowhere does it explain how many areas have been removed from legal aid.

How do I know it is misleading? Because I have read the comments below the article. It is the 2nd of January. I already need a stiff drink.

A footnote

I did a little research into the figures quoted by the Mail. It would appear that the journalist concerned has done no more than take the figures quoted in the article from a footnote to an LSB press release which you can find here. It is the fifth footnote. If the journalist had done a little more digging then they would have gone to the source material from the Office of National Statistics. I did. And when I looked at the datasets I discovered that for the first three quarters of 2016 the turnover in the legal sector is DOWN 2.4%. But of course that does not fit in with the narrative. Or maybe the journalist just did not look beyond the footnote to a press release. 

Another statistic that does not fit the story is that in 2011 when the legal sector’s turnover was £26bn the Legal Aid spend was £2.1 bn. So public spending has gone down when the overall turnover has gone up. And whereas it used to represent (very roughly) 1/12th of the market spend it now accounts for 1/20th of the market spend. 

Finally the article compares the turnover to the MOD’s budget of £27bn. Which is both misleading in making that comparison and the figure. The MOD’s budget is £34.4 bn.

Tim Farron – Political Genius?

Tim Farron seems an unlikely candidate for political genius. Some are born a genius. Some work hard at being a genius. Others may just stumble upon something that makes them look like a genius. Farron may just have stumbled on a formula that will lead to the greatest political comeback since the fifth time that Farage un-resigned. 

As an increasingly enthusiastic Remainer (I was ambivalent towards the EU until I listened to the arguments to Leave) I find the political agenda in the UK most bizarre at the moment. It is as if there is one political truth and that truth is called Brexit. And yet no one is prepared to state clearly their ambitions and goals. Other than no longer being a member of the EU, we have no idea what a politician views as a successful Brexit. All we know is that Brexit is Brexit. And that it is red, white and blue. Although I fear that may be because we are bloodied by the process, left a pale imitation of the influential nation we once were and blue from being left out in the cold…..

Yet support for Brexit is the panacea for all political ills. Politicians are falling over themselves for a bit of the Trump zeitgeist. Everyone wants to appeal to the voter with concerns about immigration. Every party wants to make Britain great again (the process of Brexit somewhat ironically raising the prospect of the United Kingdom of Great Britain actually being diminished by the breakdown of the Union). Every political step is taken to appeal to those outside of the “Westminster Bubble” (where I would much rather see money invested in the North than us just being given the name of Powerhouse, which makes us sound like a cut price electrical retailer). 

So the Conservative Party, what passes for the Labour Party and UKIP are all falling over themselves chasing the Brexit supporting public. And in the process they are not seeking to persuade those that have doubts. They are not building consensus. Their rhetoric is all about delivering what the victors wanted. It is about how opposing Brexit is unpatriotic.

And here is where Tim Farron may have just done some simple maths. The next General Election will see a turnout which is lower than the turnout at the EU referendum. But let’s say the turnout mirrored the June turnout. If it did, UKIP, Labour and the Conservatives are chasing 17,410,742 votes. Farron and the LibDems are chasing 16,141,241 votes. They are the only party currently appealing to that demographic directly on this issue, the biggest single issue in politics in my lifetime. The other three want a share of the 52%. The LibDems have 48% all to themselves. 

Of course there are many who will vote at a General Election contrary to their vote in the Referendum. There will be plenty who do not vote at all. There will be plenty who will vote according to their party affiliations, notwithstanding their own views on Brexit. 

There will be many who will not forgive the LibDems for the coalition and for tuition fees. But that was always going to be the case. The LibDems were on the verge of political armageddon. But right now there is a void in politics where the only show in town is Brexit and many of us don’t want to go. Throw into the mix that there will be many long term Labour voters who will not support a Corbyn led party and suddenly Farron may just be bringing his party back from the brink. 

He is the only one making a play for 16 million votes. He will not get them all. But everyone else is leaving him an open goal. And you don’t have to be a genius to put the ball in the back of the net. 

Be The Aubergine

When I was at University a mate of mine used to wear a t-shirt that bore a picture of an aubergine and the slogan “An aubergine having fun.”  It was just a picture of a plain old, inanimate aubergine. So my advice to aspirant advocates is: Be The Aubergine. 

I am not counselling against fun. I am not suggesting adopting a purple hue. It is the inanimate, inscrutable appearance of the egg plant (as an American advocate would have it) that I commend. Lady Gaga would say Poker Face. Lord VFTN says “Be The Aubergine.”

Advocates should rarely interrupt or interject. Nothing is gained by reacting to what your oppenent is saying until such time as you get to say it in a cogent manner to the Judge. One should sit there and keep one’s own counsel. Like an aubergine. 

The rhythm of submissions is fairly easy to discern. The party making the application goes first. The Respondent (the clue is in the name) then responds. The party making the first submissions gets to respond to the response (making them the Re-Respondent, but only if they say “Bo Selecta”). The point is that everyone gets to have their say. There is no need to interrupt with heckles from the floor. This is a courtroom, not the Comedy Club. 

There may be occasions when it is necessary to interrupt. Usually if a misunderstanding is taking the submissions in a direction which is unhelpful to everyone. And the interruption should usually be prefaced by a gentle rising to the feet and a “I hesitate to interrupt but…” Very occasionally a sotto voce prompt might be necessary to your opponent. So recently I was making submissions about a defendant being sentenced for all matters at the same time. My oppenent whispered “in the event he is convicted” to me and I corrected myself. On occasion I have whispered “don’t lead” to my oppenent as a warning before the objection or something similar to head off inadmissible evidence. Like all rules, there are exceptions. 

The interruptions that I am advising against are those that either arise from intemperance or are designed for show. The latter of these two sins is by far the greater, the former the more dangerous. 

Learning the art of controlling one’s reactions is invaluable for the advocate. The tribunal should never be able to discern that you have just received the most damaging or unexpected answer in cross-examination by the look on your face. The only way to maintain this is through a calm demeanour. Never let triumph or dismay speak. Always let control speak. 

The staged interjection for the purpose of showing off to your client is the stuff of sixth form debating. You would have to be the sharpest of wit to even remotely get away with it. But cries of “outrageous” when your oppenent is making their submissions may make great pantomime but have no place in the courtroom. Even if your opponent is being outrageous do not match them by being outrageous yourself. Demonstrate your outrage with measured words, not fiery interjections.

Maintaining the dignity of the courtroom is one of the tasks of the professional advocate. Even when provoked, even when your heart is thudding in your chest at the injustice of it all. This is not the free for all of Speakers’ Corner but the precision of the courtroom. 

At all times Be The Aubergine.   

Trussed Up

“We do not have a written constitution, but that is not to say the Government are not subject to constitutional law. A written constitution provides a degree of certainty but can also produce unintended consequences, such as the right for many Americans to carry assault weapons. As we do not have a written constitution we need the very best legal minds to rule on whether a Government has acted lawfully. Those legal minds are appointed to the judiciary. 

“When the recent litigation in connection to the EU Referendum and the decision to leave the EU began, the Government did not suggest that the matter being brought before the Court was something that was outside the jurisdiction of the Court. Nor did the Government suggest that any of the Judges who heard the matter should have been excluded from hearing the case due to their personal connections to any organisation. 

“The litigation was about the mechanism being utilized by the Government in order to invoke Article 50. It expressly and clearly did not involve the question as to whether we should or should not leave the Union. It was about whether the method that the Government sought to use was constitutional or unconstitutional. Whilst the Government do not agree that the ruling of the Court is correct and intend to appeal it, the Government do not view the decision of the Court as something which has in anyway subverted, negated or reversed the result of the Referendum. No matter what the result in the Supreme Court, the Government still intend to carry out the result of the Referendum. Brexit will still take place. 

“Essential to democracy and a free nation is the freedom of the Press. Where the Press disagrees with the ruling of a Court it is vital that the Press have the freedom to do so. But they also have a responsibility to report these matters in a way which assists the public’s understanding of the matter. Headlines that describe Judges as being “Enemies of the People” could not be further from the truth and are irresponsible. The fine, independent Judiciary that serve this nation are part of the machinery which protect each and every one of us. They protect our rights. They are part of the process which means that democracy and liberty continues to flourish in our nation.”

These are my words. Four paragraphs that took me ten minutes to write on a Sunday morning. I have done so to make the job of our Lord Chancellor really easy. She is completely free to borrow some, all or any of the words and sentiments expressed above. It is a really easy thing for her to do, which is unusual, because duties are often onerous to carry out. And this is her duty. Her duty to protect the rule of law. Her duty to inform the public (and many of her ill informed colleagues at Westminster) about the reality of the “Brexit” litigation. 

Her actual statement is breathtaking in its lack of comment on the furore that followed the judgment. The Lord Chancellor has displayed more passion in her promotion of the cheese industry than she manages to invoke in her defence of a vital aspect of our democratic society. 

There is only one judicial officeholder who should lose their job over the “Brexit” litigation. And that is one Mary Elizabeth Truss. 

One Wheel on My Waggon

“Tell me why, I don’t like Mondays?” implored Bob Geldof and his rats.

The unlikely answer is because he and the rats were barristers from Boomtown Chambers. They had come to hate Mondays because they knew that Mondays were the embodiment of the problems that beset the criminal justice system.

I know how they feel. Recent Mondays have not been kind to me. Not that how my Mondays pan out really matters in the grand scheme of things. The problem is that recent Mondays have been rather unkind to victims, witnesses and defendants. I would go so far as to say they have been cruel to (and I am now going to use a phrase so beloved by our politicians) ordinary, decent people. 

Let us make like Marty McFly and do a little time travel. Hop aboard the Delorean that is my diary for the last month. The first Monday of the month had me scheduled to prosecute a drug trial. This is a little humblebrag, this was not a couple of street deals, this was a delivery of wholesale amounts of drugs. There was a hiccup in the week before the trial when it turned out my opponent was over running in his current trial and we all agreed that the trial could go back a day to the Tuesday. The Court demanded that the case be listed before a Judge for this application so along we all trooped for the Judge and the Listing Officer to confer and announce that the Court could accommodate the case if it was pushed back by a day. 

So the calendar ticked round to Monday. 5pm on Monday to be precise. That was when the call came – case pulled from the list for lack of court time. 

The call was so late that the CPS were not able to react to it. All the officers were at court the following day, including one officer that had travelled from London. So I had quite an audience to watch me mention the case and refix the trial for March 2017. 

“Hush your moaning,” I hear you say, “this is one of life’s little blows. Roll with the punches.”

The following Monday found me boarding a train at an hour which usually finds me in bed. I rattled through some spectacular English scenery. I rolled into a different city, grateful for the fact that my bag contained only iPads and laptops rather than all the files usually needed for a three week fraud. Later in the day I reversed my journey having popped into court for a grand total of about five minutes. Our Judge was part heard with his trial from the previous week for the whole of the Monday. And, so it turned out, quite a bit of the Tuesday too. 

This one is, I admit, a personal moan. This does not impact on ordinary, decent people just odd, indecent people like me. As every barrister will know no jury sworn on the Monday meant no significant fee paid for the day. In fact my fee did not cover my train fare. 

As it happened that trial went short for other reasons. Fear not, dear reader, I had a trial in my diary for the next Monday so the mortgage was still going to be paid. Can you see what is coming? My trial on the Monday did not happen. Listing pulled it on the Friday evening. Which was a bit of a sickener for me, but probably even worse for the witness who was due to travel to court in the North West from the South East coast. 

It would, would it not, be incredible bad luck for a fourth Monday on the trot to go wrong? So this Monday was to see me once again in a far flung court to conduct a trial. I was going to be accompanied by two other members of my chambers on a bit of a chambers outing to co-defend. And I suppose that, at least, made the job of the Listing Officer a tad easier on the Friday evening, as he only had one set of chambers to call and say that the trial had been put back by a day. 

So yesterday saw three members of my chambers, all self-employed people, sitting idle. Being idle allowed the three of us plenty of time to share our thoughts via text and email when our clerk was told that the case was not going to be heard on Tuesday either and we had now been pushed back to the Wednesday. So the three of us are at a loose end today too, like a barristerial version of Last of the Summer Wine. 

This is not just a case of lunaediesophobia. Cases get pulled every day of the week. And it isn’t just me. The third Monday in this little trot of bad luck saw four trials pulled in the same court centre. So what is causing this?

On one of the rare recent days when I actually went to court and did a case I found myself in a room in the court building. In that room was one of those trolley things that people use to transport great piles of files and boxes into the building. The trolley had a sign attached to it that read “Do Not Use. Flat Tyre.” Underneath the prohibition on use was the fact that the fault had been reported to the necessary authorities……in October 2015. And there it was, tyre still flat and not fit for its intended use. 

But perfect as a metaphor for the criminal justice system. We are running on a flat tyre. 

Due to my recent experiences of cases being delayed, pulled or evaporating I have been keeping a keener eye on the lists of recent times. And I have noticed a plethora of lists that look like this….

….or this……


This is replicated across the nation. I went through the lists for court centres that I know. On Monday mornings you will see Court Centres that have eight courtrooms are only using three of them. Buildings that could accommodate ten Judges have five sitting. Large cities will have five courtrooms occupied and nine sitting vacant, whilst having three floating trials. 

This is not a case for closing these buildings. The fact is that we have more than enough work to fill them and perhaps reduce the delay from offence to trial that can often be two years. The answer lies not in allowing defendants to plead to speeding cases online, that is not going to allow the sex case to be heard any earlier. It is not the answer to allow vulnerable victims to be cross-examined early in the proceedings, that is just going to clog up more courtrooms. 

The answer is more Judges. The problem lies in the fact that Courts suffer a lack of full time Judges and are not allowed to fill the gaps by utilising Recorders (part time Judges) with sufficient advanced planning. Judges have told me in open court that the reason why cases are not being reached is because, as is shown in the list for “Court 1” above, a Recorder has not been allocated. What is happening is that an email will wing its way around potential Recorders with only a few days of notice. So often the email will be seeking Recorders to sit a whole week, or two weeks or even three weeks, with less than a week’s notice. It is no surprise when there are no takers. One would expect Recorders to be amongst the busier members of the professions. And their diaries only collapse at the last minute, when their trial is pulled because no one else has answered the call to sit at such short notice. 

I would hazard a guess that every senior criminal judge knows that the delays in the CJS are nothing short of a scandal. I would like to think that they know they have the accommodation capacity to deal with more cases. I am confident that they know with the deployment of more part time Judges more trials could start every single Monday of every single month. Instead of banging the drum for pleading guilty when we do not know the nature of the evidence, the senior judiciary should be looking at the evidence of the lists and banging the drum for more resources that would allow better forward planning. When one cannot get a case into the courtroom, it is nothing short of embarrassing to see the championing of a mobile video link van. 

Like the trolley with the flat tyre that was reported nearly a year ago, nothing will happen unless someone takes responsibility for change. That is not something I can do, it is not something the CBA can do. It is something only achievable by those who can use their independence from humdrum politics to make the case that the system is failing society. It takes the people at the very top to be honest about the problems we face and to be realistic about the solutions. It takes advocacy on behalf of a system that is central to our society, advocacy which is conducted without fear or favour. Advocacy that is conducted by those who are entrusted with the privilege of ensuring that justice is done within our courtrooms.