Tag Archives: barrister

New Judge, Old Court

It is the first day in the full time judicial career of HHJ Darren Leben-Boot (known as Daz to his friends). Whilst the heart and the pension pot is full of joy, the day carries some sadness for the latest Circuit Judge appointment. He will miss the robing room and his colleagues in chambers. And then there is the move. His offer came for an appointment in a far flung Court, one which he had never visited. So life has been uprooted and new beginnings are taking place in new surroundings.

He checks himself in the mirror once again. The bands are brand new and shiny white. The red sash sits on his shoulder. The new wig sits where the old wig sagged. His usher comes to the door to escort him into court. The new Judge feels a little uncomfortable with John the usher punctuating every sentence with “Sir”.

They walk down the corridor which smells a bit like his grandmother’s retirement home. A knock on a door, then “All rise” and he emerges, blinking into the light of the courtroom, his courtroom.

The familiar now has a new focus, a different vantage point. It is only as he takes his seat that he begins to take in his surroundings. Counsel’s row is full of bewigged barristers. But then HHJ Leben-Boot does a double take. The wigs are there, but are perched atop white hard hats. The gowns are there, but each one cloaked in a hi-viz vest. Like Rumpole trying to recreate the Village People.

Counsel stage left gets to her feet, she balances her hard hat and wig combination in a Swiss finishing school lesson in deportment.

“May we welcome Your Honour to the Crown Court sitting at Shambles-upon-the-Wold, and indeed this Circuit,” Counsel begins, in the customary welcome to the newly appointed.

She pauses, and reaches down to the seat next to her.

“And as a gesture of welcome, may we present Your Honour with this, the Circuit Office provided safety wear,” and with that Counsel presents the usher with a neatly folded yellow fluorescent waistcoat and purple hard hat.

Counsel continues; “Your Honour is being provided with head gear colour coded to your office.”

A bemused Judge takes the folded gilet and hat from his usher, whom he now notes is wearing a black safety helmet.

“Thank you Miss Rouen for those kind words, and indeed for the gift. But may I ask one thing….why?” His Honour inquires.

With a sense of timing often lacking in the drama of a courtroom, the question mark at the end of the sentence has barely left the Judge’s mouth when there is a sudden cry of “INCOMING!!!” as a segment of lighting strip detaches from the ceiling and crashes on to Counsel’s row, scattering Juniors left and right.

The new Judge hurriedly dons his hard hat, wedging it on top of his wig.

“I see Your Honour adopts the Devon approach,” Miss Rouen announces, seemingly unperturbed by her colleagues who have now produced hand brushes and dustpans from their red bags and are busying themselves sweeping away the fragments of lighting tube.

“I’m sorry?” the Judge responds.

“We are all very much hat first, wig on top. The Cornwall method. Whereas Your Honour has gone wig then hat, like they do in Devon. It is quite a heated debate,” Miss Rouen explains.

The Judge breathes a deep sigh. A confused sigh. He looks beyond counsel and sees scaffolding at the back of his courtroom, climbing all the way up to the ceiling, a skeleton of scaffolding poles and planks.

“Is this what the scaffolding is for? For workmen to repair the lights?” the Judge addresses his question to anyone prepared to answer.

“No,” Miss Rouen replies, as she is on her feet. “That is simply there to hold the ceiling in place.”

By coincidence there is a new journalist in court. He realises he is sitting beneath the aforementioned scaffolding. Hurriedly, he moves to the seat next to his. The seat immediately gives way beneath him and he rolls towards the court door. Two of his colleagues from the Fourth Estate rush to his aid, two others use all their experience to stifle giggles.

The Judge can feel dignity ebbing away quicker than the life span of a Justice Secretary. He straightens his hard hat (he knows enough already not to chance removing it) and asks that the first case is called on.

“Call Colin Apse,” the Clerk announces.

The usher picks up a nose clip, the sort used by synchronised swimmers, and attaches it to his nose.

“John,” the Judge whispers urgently. “What are you doing?”

“It’sth for de drainsth, thir,” comes the nasal reply.

“Do they smell that bad?” asks the Judge.

The usher reaches beneath his table and slips on a pair of galoshes.

“De do once they thoaked into de carpet, thir. Espethially as we kept de heating on all thummer becuathe we were thcared it wouldn’t sthwitch on again, thir.”

Hard hat, nose clip and galoshes in place, John the usher makes his way to the courtroom door. He sidesteps a rolling member of the press and places his hand on the handle of the door. Which immediately comes off in his hand. He removes his nose clip.

“I am sorry Your Honour, amongst the collapse of the Court Estate, it would appear that it was too much to expect egress to work.”

“Come again?” asks the Judge.

“We are locked in Your Honour,” John the usher replies with a shrug.

The Judge slumps in his seat. He looks at the calendar before him. He takes a pen and crosses through that day’s date.

Only 4,399 days to go to, he thinks to himself, already counting down the days to retirement.

We Are Right

Here we are again. No new work being undertaken. The prospect of days of action. No returns to return. Headlines and news stories. Unity and strength. Division and failure.

I support the action proposed by the CBA. I support it to the hilt. I have now been at the Bar for 25 years. Not once in that time has a single fee for work done ever been increased due to inflation. We have had different ways of being paid, different versions of different ways of being paid and then brutal cuts to fees that the Government had previously decided were appropriate remuneration.

That is 25 years of being undervalued and being treated with contempt.

Enough.

The action should not be about maintaining the status quo. We should not be wedded to being paid per page. It is becoming increasingly difficult to assess how many pages some forms of digital evidence represent. It is taking up a disproportionate amount of time to argue over page counts. As smartphones become ubiquitous and a domestic iron seems to have the processing speed of Mr Babbage, the way evidence is gathered has outstripped the notion of payment per page of paper.

Part of not maintaining the status quo is recognising that fees which have not been increased for inflation and have been subject to cuts so that they are now worth 40% less (in real terms) than when they were first deemed to be appropriate remuneration are not the basis for the figures to go into the boxes of any newly designed scheme.

The MoJ have said it themselves. They described the current AGFS as archaic as they rushed to paint the Bar as being protectionist purveyors of self-interest. I, for once, wholeheartedly agree. The scheme is very old. The level of remuneration we receive for a case is massively out of date. It is not kept up with inflation. And did I mention it has been cut?

So it is the right time to design a new scheme, with new architecture. If we tear down a building to build something modern which is fit for purpose in a low carbon, high tech digital age we do not use the same bricks, the same floor boards, the same single glazed window units and asbestos tiles. And so it is with the scheme which came into force on 1st April. The Bar did their bit by trying to design something modern, the MoJ have built something belonging in the last century.

This is why we are right to take this action and the government response that we helped design this scheme is not a reason why we cannot reject it.

I entirely understand that the Judiciary have to maintain an independence from the actions of the Executive. I also hope that the Judiciary realise that we do a heck of a lot more for a heck of a lot less money than would have been the case when many of them were in our shoes. As I said, I have been doing this job 25 years. When I was trained, when many of the senior Judiciary would have been junior barristers, I had to be concerned about learning how to draft advices on evidence and appeal. And that was about it for written work.

During this week, as well as doing a trial, I have drafted two skeleton arguments, one basis of plea, an adverse verdict report, a bad character response and edited an ABE interview. None of that was work the Bar did twenty years ago. Certainly not with the frequency we now endure. Each year that passes, each year that diminishes our fees by dint of inflation, sees an increase in the workload required by statute, practice direction and order of the Court.

All of that in a working week which follows a period when I have spent two Saturdays in the last eight weeks attending training courses designed to improve our system in relation to sex cases and vulnerable witnesses. I am not seeking to invoke sympathy. I do a worthwhile job and accept that I have to do it properly. But those who think they know what we do, how we do it and what we get paid for it may be thinking of a life at the Bar which is long gone.

Even if a Judge was appointed last year they should remember the steady creep of increased workloads matched by the steady reduction in fees. And I am not going to begin to add in some of the working conditions we face. As Judges they have to maintain their independence. As women and men who are assisted by capable advocates producing skeleton arguments and agreed facts, their hearts and minds should be with us. Their independence does not mean that they should not be able to see through the MoJ spin.

Any Judge who wants to understand more about our position need only ask. I, and many others, would only be too glad to tell them the unvarnished reality. The same offer can be extended to any politician. Or Tax Barrister.

We do not take this action lightly. There will be members of the Bar who are immediately put in financial peril by taking this action. Clients are being disadvantaged. Solicitors are having to deal with fall out of the action, continuing to do their best for clients in incredibly difficult circumstances. But we must take this action. And it has to succeed. If we fail, we do not fail ourselves, but we fail the future. We fail the future of a diverse judiciary. We fail future victims who will be cross-examined by a lower quality advocate. We fail future defendants who will be represented by de-motivated advocates who are the face of an under-valued and under-funded system.

HHJ Burke QC

This is a sad time for the Northern Circuit for we now learn of the death of HHJ Burke QC. And whilst I do not want this blog to become the informal obituary pages for the Circuit, the passing of HHJ Burke QC presents me with the opportunity to tell a tale of one of my more unusual days in court. But more of that in a moment.

Before being HHJ Burke QC, John Burke was plain old John Burke QC. And in his role as John Burke QC I had the privilege to be the junior in a case in which he also defended. And I learnt a very valuable lesson from him in that case. It is a hallmark of my conduct of the longer case, it is something of a trade secret. And here it is….

Small, strong mints.

Yes, that is correct. Small, strong mints. Nero do a fine line in them. As do Marks and Spencer in a tin. Their fiery, strong nature are enough to keep you awake during the dullest of prosecution submissions. Their small size mean they can be popped discreetly into the mouth, often without any accompanying rustle of wrappers. And they are also small enough that they do not inhibit speech if suddenly you are called upon to advocate.

So, with that lesson passed from John Burke QC to me to you (and there is an unexpected Chuckle Brothers reference), John Burke QC became HHJ Burke QC and he took up residence in Court 7 at Minshull Street.

HHJ Burke QC would not be a model for the modern judiciary. He was not a man for the Guideline. He was not really a man for long prison sentences. He definitely was not a man for a short prison sentence. Which is why it is a shame he is not the model for the modern judiciary. It is a shame there are not more like him prepared to extend a second, third or even sixth chance.

He was a friend to the Bar. He was always polite and charming to appear before. He did not like to preside over the unseemly squabble between counsel attempting to fix a case when they were available. So, when presented with competing dates and interests, he would declare, “I am not going to preside over some sort of Dutch auction” and then rise to let counsel agree a date between them.

And so to my anecdote. I was being prosecuted by my mate Gary, as he then was, now HHJ Woodhall. The case was one of assault where the defendant was a woman who had been caused all sorts of problems by an ex. She had ended up assaulting him in circumstances which were either self defence, justified or wholly wrong. At the close of the Prosecution case I rose to make a submission on one count and one count alone. It was some technical point.

So I got to my feet and said, in the time honoured fashion, “Your Honour, there is a matter of law…..”

To which HHJ Burke QC said “Quite right, well members of the jury you have probably heard enough already, so why don’t you leave us for five minutes and have a think about your verdict.” And with that he was gone from the bench and the jury were being ushered out by the appropriately named usher.

Both Prosecution and Defence Counsel were relatively young. This was new. Very new. We anxiously discussed what had happened. We looked in Archbold. I grew pale at the thought I may be the first barrister ever to have their client potted on a half time submission.

So we asked for the Judge to come back in. Respectfully I referred the Judge to the law. I pointed out that the jury needed a clear direction that they were entitled to acquit at this stage and nothing else. Thankfully the Judge agreed and asked for the jury to be brought back.

Once again the usher ushed.

HHJ Burke QC turned to the jury and said, “Well members of the jury, have you heard enough?”

This was not the direction we had agreed. I think I let out a gasp. Or maybe a squeal. Possibly both.

“Yes we have,” said a bloke on the front row, “we don’t want the case to go any further.”

I could have kissed him. We had been spared explaining this in the Court of Appeal. My reputation for not losing defence cases before the defence case remained intact.

“Well at this stage I must remind you that the only verdict you can return is one of not guilty, and it must be the verdict of you all,” directed the Judge. Which was the direction I had hoped for moments earlier, but at least we now had it.

The bloke on the front row turned to the rest of his fellow jurors. There was some whispered chat. A few head shakes. The occasional nod. He turned back round to the Judge.

“In that case, Your Honour, we would like to hear what the defendant has to say for herself…..”

This time I gasped, squealed, gulped and probably swooned. I had now managed to lose a half time submission that I hadn’t even made, the jury having determined that there was a case which cried out for an answer. If anyone was crying, it was me.

In the next half hour or so, with the Jury once more being the subject of more ushing, I managed to persuade the Judge that he should really seize the nettle and withdraw the case from the jury. I quoted some very old law, undoubtedly in quite a high pitched voice. And HHJ Burke QC did what he often did. He applied some common sense and a real sense of fairness. My client walked free and I popped a mint into my mouth, content that I now had a real, bona fide anecdote for the robing room table.

So that is my tale of HHJ Burke QC. I have more. There is the time he told me in his chambers about his chasing of a rabbit in his pyjamas. Or the time he misheard the crucial piece of evidence. Or the time when my pupil master referred to him by his first name, when he should have been calling him “Your Honour”. Or the countless old fashioned indications that he subsequently forgot giving.

Sometimes a footballer becomes so synonymous with a particular shirt number that it is always “their” number. Think Ronaldo and number 7 (although United have had a few handy number 7s). And for me Court 7 is still John Burke’s court. A courtroom in which you would appear before a cordial Judge with a sympathetic streak. So again we mourn and celebrate a life in equal measure.

Call The Cops

My friend Delphine has never read my blog. I imagine many of my friends have never read my blog. They are sensible and interesting people so the reading of my blog should fall very low on their list of priorities. Some friends, however, have read my blog and during a recent lull in conversation Delphine heard her husband talking to me about my blog (not that I ask you to infer that Richard is neither sensible nor interesting but he has read my blog) and she asked what I wrote about.

“Music and the law,” I replied.

Momentarily Delphine was interested in the View from the North. She expressed the view that this was an interesting mélange (she did not say mélange but she is French so she should have). She went on to wonder how I managed to weave the two into the same blog. Did I write about the law as it relates to music or did I draw comparisons between music and the law? Or was it about the law featuring in music (as in 10cc’s “Well good morning Judge, how are you today/I’m in trouble, please put me away”)?

Interest soon faded when I explained I wrote about the law and music separately. And that the content was usually me moaning about some aspect of the criminal justice system or writing fanboy reviews of Paul Heaton and Jacqui Abbott. The View from the North, it would seem, is myopic and grumpy, mostly relayed to the soundtrack of broken northern hearts.

Writing a blog about the intersection of law and music would be nigh on impossible for me, I thought. I would not know where to start. The music and the law seldom cross paths unless you are an intellectual property lawyer. I am barely a lawyer, have never been associated with the word “intellectual” and only ever own property when playing Monopoly.

But…..wait a minute….. I have got my one reliable dinner party anecdote. And it is about music and the law. It may be the greatest day of my career. It is a memory that is stored in a box in my mind which has written on it, in big gold letters, “The Day I Represented Shaun Ryder”.

Now, for those of you who are either High Court Judges or oblivious to the splendour of Madchester, Shaun Ryder was the lead singer of the Happy Mondays and Black Grape. He produced such classics as Hallelujah, Step On and In The Name of the Father. If you have not heard of him then check out his bio here and listen to some of his music. Then come back and I will tell you of The Day I Represented Shaun Ryder.

Welcome back to all those who needed Wikipedia and Spotify. I shall continue.

It was 13th July 2000. This was 24 days after Kylie Minogue had released her single “Spinning Around” and was almost exactly 6 years to the day from when I had made my first appearance before a Crown Court (see how effortlessly I can in fact weave music and the law together). I was at Crown Square, the Crown Court in Manchester. And I was being both Big and Important.

I was Big and Important because I was appearing for the first time in a murder. Ok, it was only listed to mention. But I was doing it. And, to quote an obscure fictional legal character, I was doing it alone and without a Leader (the mention, that is, not the whole case).

So when a solicitor whom I knew approached me and asked if I could do him a favour I patiently explained that I was both Big and Important. Doing a bench warrant as a favour for a solicitor was now beneath me.

“Oh, it is just that I need someone to help Shaun Ryder out….”

“Shaun Ryder?” I repeated. “The Shaun Ryder?”

It turned out it was the Shaun Ryder. It turned out that he had been due to appear at court the day before as a witness but had not shown. When he had turned up the Judge demanded he had representation. The Judge thought his failure to attend fell into that category of legal application known as “Something About Which Something Has To Be Done”.

Even Big and Important barristers can find time for a celebrity client. So moments later I found myself in a conference room with Shaun Ryder. Shaun “Pills ‘n’ Thrills and Bellyaches” Ryder. And for those of you from a more modern generation, that is Shaun “Runner-Up in I’m a Celebrity 2010” Ryder.

So I had a conference with one of my musical heroes. The prosecution had produced a letter detailing the efforts they had made in order to inform him of the date of the trial. So I tried to establish where he was living.

“Ahhmkippinatrowettasmahn” was his reply.

I like to think I speak fluent Manc. I had been to the Hacienda. I had lived most of my life seven miles from the City Centre. I had a long sleeve t-shirt with James emblazoned on the front. I had owned a pair of Joe Bloggs jeans. But I could not understand a word he said.

Thankfully his concert promoter was there.

“He has been kipping at Rowetta’s house” he translated. This I understood. Rowetta was the other vocalist from the Happy Mondays.

And the conference continued with simultaneous translation facilities being provided.

So I was able to go into court and explain to HHJ Ensor that my client had not been in attendance the day before because of the most rock and roll of reasons – he had been on a monumental bender. Yep. That was my cunning defence. My client was too pissed to come to court.

Fortunately I was also able to point out that the Judge had no power to do anything at all. Even if my client was famous.

And so we exited court and Shaun Ryder put his hand in his pocket and said to me “let me sort you out with some cash” (at least that’s what the promoter told me he said).

I declined all payment. I had done this as a favour. Not to the solicitor, but to myself. I, a Manchester boy, had just secured myself a footnote in the story of Madchester.

There was just one thing he could do for me though. An autograph. So we scrabbled for a piece of paper and the first thing that came to hand was the letter the police had written about informing him of the court date. He gave it back to me, autograph complete. But not just an autograph. He had written “Call The Cops, Shaun William Ryder”.

If you do know the work of Shaun Ryder, you will know how brilliant that is. If you don’t then “call the cops” is a famous snippet of lyrics from Step On.

And that letter is framed on my study wall


That afternoon I heard my submissions being quoted on Radio 1’s Newsbeat. And the concert promoter very kindly sent me four tickets to the Oasis gig that weekend where the Happy Mondays were the support act.

Later in the evening my university mate Richard sent me a text (and yes, it is the Richard who is now married to Delphine, see above). Richard was in a bar in Belgium. He had just seen the Kylie Minogue video for Spinning Around for the first time. For men of my generation that is our JFK moment. You always remember where you were the first time you saw the hotpants/Kylie thing. So there was Richard, seeing the video for the first time 24 days after the single had been released. And I was able to text back “you’re never going to guess who I represented today….”

So that is the one time law, Shaun Ryder and Kylie Minogue intersected. And because Delphine thought that would be a good basis for a blog I have blown my one good dinner party anecdote.

Well, I do have the story about the MMA promoter and the goldfish. But that needs accents and dramatic pauses. So you will have to invite me round for that one.

Open All Hours

Fulford LJ is the Judge in Charge of Reform. This is a noble aim. The Justice System should reform. We should look at ways whereby modern technology is utilised effectively (effectively being the operative word). We should strive to make sure that the Justice System remains fit for its stated purpose (this is not the same as being popular). 

I certainly have the greatest of respect for Fulford LJ, the office he holds and even his special responsibility of reform. But this is not what we need right now. What we need is a Judge in Charge of Getting the Basics Right. 

This is not a sexy job title. This is not something which looks good on the CV when going for one of the big jobs. But it is needed in the Criminal Courts. And it is needed before we even begin with the ambition of reform. There is no point attempting to augment something which does not work in the first place. Even Chris Hoy would struggle on a titanium framed penny farthing. 

Let’s examine the Flexible Operating Hours pilot which Lord Justice Fulford has recently defended and the reality of every day life in the criminal courts. The FOH pilot has the stated aim of utilising the court estate with greater efficiency and operating at times which is more convenient for court users. 

Let us look at the reality. The reality is that a trial scheduled to start at 10am today did not get underway until 2.15 because the defendant was not produced from custody. This was because the van set off from the prison housing the defendant at just before 10am, a prison which is over two hours away from Court. This was not because something went wrong. This was not because it was only realised that the defendant was required at the last moment. This is because this is the way it is. This is the accepted reality of life in the courts. Whilst I cannot say it happens every single day (although I would not be surprised to find out it does) it happens with such frequency that every court user will recognise the scenario I have described. 

A courtroom sat empty whilst we awaited the van. A witness who could reasonably have expected their evidence to be concluded today was sent away until tomorrow. 

Now I can predict with certainty that barely a single prisoner will be delivered to court in time for an 830 am start or even a 930 start. Those prisoners who are in the afternoon shift will not get a lie in (you can bet that only one van will drop off so the defendant required for an afternoon hearing will come with the morning lot) and experience shows they will be lucky to get a Pot Noodle on their return in the evening. Imagine that in a trial. Day after day of early starts, hours in cramped court cells, a curled sandwich at lunchtime and no hot meal all week. If this is reform then it is only in the sense of the word used when Pink Floyd reform. We are not putting the band back together, we are putting the workhouses and the squalor of Victorian gaols back together. 

For late defendants you can substitute inadequate interpretation provision, poorly prepared lawyers, courtrooms sitting empty because there is no budget for judges (yes, really) and videolink technology that has all the reliability of an Austin Allegro built on a Friday afternoon. The Criminal Justice System is beset with difficulties. Solving these have to be the priority, not opening all hours. 

We are told that, should the Pilots be a success, the greater efficiencies will allow money to be spent on the rest of the system. We all know that “greater efficiencies” means closing court buildings. And that has huge consequences which are only amplified by FOH. 

Again, an example based on the reality of attending court. It is proposed that Newcastle will operate from 930am. This will require lawyers being there before then to conduct their discussion with their opponents and confer with their clients (if they are lucky enough to be on bail and therefore have a prospect of being there themselves on time). The earliest you can get to Newcastle from Birmingham by train is 9.27. From Liverpool it is 9.14. From Manchester you can get there with an hour before court. If you leave on the train at 5.47. And from London the earliest you can get there is 9.40am (or you could drive and leave the house at about 3.30 am).

This means that those lawyers with a hearing in the 930 court will either have to appear by videolink (not always practical, desirable or even achievable) or will have to stay the night before. The stay the night before will be at the advocate’s own expense (it is relatively uncommon to receive travel expenses and when you do they only cover the trial, not ancillary hearings like the sentence) and that expense may well come out of a fee which is £45. Or even £0. A more efficient use of the Court Estate may require the judicial car park at Newcastle to accommodate a caravan or two. Or maybe a yurt. Perhaps the dormant canteens can be reformed into dormitories. 

So this demonstrates a fundamental problem with the FOH that you don’t need a pilot, or even a train driver, to spot. They instantly throw a time and financial burden on the lawyers. And yet this only highlights a growing problem with the accessibility of courts. As the local court closes it will be the witness, the plaintiff, the victim and the innocent that cannot get to their nearest court by public transport. So the greater efficiencies strived for within the pilot turns the Justice System into a more remote silo of justice physically removed from the community it works to keep safe. 

These FOH pilots cost a small fortune. The CPS have to pay their staff more. Consultants will make a small fortune evaluating the results. Civil servants will devote time and energy writing blogs and implementation strategies. Right Honourable Lord Justices (or Lords Justice) will have to devote judicial time to writing letters to the ill-informed. 

Yet it is the ill-informed that could tell them all they need to know. It is the ill-informed who know the defendants will not be produced in time. It is the ill-informed who can look at a train timetable and realise they cannot get to court on time. It is the ill-informed who know that they will have cases that appear in both shifts in any given day and will be at court from 8 til 7. It is the ill-informed that know that those with childcare responsibilities will have their careers turned upside down by the unpredictability of our work being stretched over two or three shifts from dawn til dusk. 

So I go back to where I started. We do not need a Judge in Charge of Reform. We need a Judge in Charge of Getting the Basics Right. We need defendants produced on time. We need facilities that work and allow us to do the jobs required of us. And where do I suggest getting the money to fund these basics? Well you could start by scrapping the FOH pilot. After all, I don’t need six months evaluating the burns to my lap to work out that a chocolate teapot is not the way to make my morning cuppa. 

Sitting in the Dock of Delay

Some of those who walk through the doors of a court building as defendants are criminals. I would suggest the vast majority of them have committed some offence at some time. Quite a few have contributed in some way to them being there that day, whether it is by committing the offence they are charged with or by committing some offence in the course of their conduct or their conduct otherwise contributing to them being there. 

A significant proportion of them, however, are innocent. A greater proportion of them are of previous good character and are there due to the one error they have made in their lives. It is an error that they will be punished for but not something that wiped the good they have done off the slate. They are young men, with anxious parents, who will never again in their lives raise a fist in anger. They are people who gave into temptation in a coincidence of circumstance that will never again collide to propel them through the doors of the Crown Court. They are drivers who face a judgement because their error, their error that has been committed by dozens of un-prosecuted drivers, has led to a serious consequence and police involvement.  And they are people who are guilty of no misdemeanour at all. 

Once convicted, these defendants will be punished. Once convicted they may be subject to piercing criticism of their conduct. And rightly so. But until such time as they are convicted, they remain just one component of the criminal justice system. 

Now I throw my hands in the air in frustration when I hear about “customer surveys” or “consumer feedback” when talking about court users. People do not choose to partake in the criminal justice system. So they are not consumers or customers yet they are fellow human beings. And as such they all deserve to be treated with respect and consideration. Witnesses, complainants, victims and defendants all deserve being treated as we would wish to be treated by others. 

Over time I have witnessed the criminal justice system trying to do much better when it comes to dealing with people. When I began my career I would go so far as to say that the system, and those professionals that operated within it, treated  every other actor with considerable disdain. Where we thought we acted with a degree of sang froid we were in fact being aloof and arrogant. We mistook disdain for detachment. Gradually things have improved with consideration being given to witnesses and their understandable needs. I am not suggesting that it is perfect but the system has worked to improve.

That improvement, however, has not been extended to defendants. So you have the situation where young men of previous good character stand in the dock in their suits on the day when their trial was due to be heard but has been cancelled at the last minute, and refixed nine months hence, to hear the Judge observe that at least no witnesses have attended because the case was pulled the night before. Some Judges will apologise to the defendants. Most do not. 

The fact is that the defendants’ attendance in those circumstances is otiose. They have probably already taken the week off work. They will already have waited a year with this case hanging over their heads. And the reason for the further delay to their case is not because they have exercised their right to deny the offence they are charged with. The further delay is because the courts are under resourced. 

For all the talk of Brandon Lewis announcing that the 28 day bail regime will bring about less delay and uncertainty for the arrested it is just talk. All it means is less people released on bail and more people just released pending further investigation. Like most Government initiatives it is all talk. Talk usually focused on making it sound like it is good for the victims of crime but it is just that. Talk. Talk that politicians hope appeals to voters but talk that is not backed by action to tackle the real problems that beset the justice system. 

Whilst the politicians fail to put our taxpayers money where their duplicitous mouth is, the system creaks on with inevitable delay. And as those delays impact upon all involved the very least we can do is treat everyone with consideration and dignity. Even those in the dock. 

The Unmentionable Fee

In my previous post about the AGFS consultation I promised I had more thoughts to share about it. And whether you want them or not, here are some more of those thoughts….

If you spend any time hanging around robing rooms (and thanks to floating trials and/or it being a cheaper way of keeping warm on a winter’s day I tend to spend a lot of time hanging around in robing rooms) then you will hear some common complaints from criminal practitioners. We complain a lot about not being paid for the second day. We moan about doing mentions for free. We really moan about paying people to do our mentions in other court centres whilst we do the second day of a trial for no additional payment. And never ask counsel how much they are being paid for a sentence hearing. 

I have no doubt that the working group who had input into the draft scheme had these sort of moans very much in mind. And they have tried to rectify them. Again it is important to remember that this is moving money around the pot. So the money for the second day’s refresher sees brief fees reduced. The current brief fee included an amount for the second day and fairly directly the money has now been split into two. Which is morale boosting to know that your second day does actually attract its own reward but is one of the reasons why we now look at the fee for the first day, the brief fee, and say “really?” That has a definite knock on effect when it comes to cracked trial fees but that is a whole separate blog (I bet you can’t wait).

It is proposed to pay for the first six standard hearings in a case under the new scheme. We are told that it is only a very small number of cases that have more ancillary hearings that this. I must confess it is not entirely clear how exactly the seventh mention should be remunerated, save for the fact that it is going to come out of the graduated fee, albeit at no specified rate. 

I would suggest that mentions for the purposes of onward remands which are required by statute should be remunerated as being outside the standard appearance regime (including hearings related to custody time limit applications). 

But at least we are getting paid for those first six standard appearances. That should silence the moaning mention miseries in the robing room. We are going to get £60 a pop. Which is nice. 

It is not, however, as nice as the £100 we got for such hearings in April 2007. Or the £96 we got in April 2010. Or the £91 we got in April 2011. Or the £87 that we have been paid for such hearings since April 2012. I know the pot is staying the same but that kind of feels like a pay cut. In fact it looks like a pay cut. It sounds like a pay cut. And it is a pay cut for the Junior Bar who are not swanning around picking up brief fees left right and centre but will, in the early days, often only do “standard appearances” for days on end. It is a pay cut based upon cut upon cut. 

I know that junior practitioners will do mentions and standard appearances for days on end because that is what I did when I was first on my feet. And I was getting £45 per mention back then so at least £60 is a bit of an improvement. Except it isn’t. Because I did my first £45 mention in 1993. And in today’s money that equates to £64.09. So I am getting paid less for those standard appearances than when I was a pupil. That is time travel that Doc and Marty McFly would be impressed by. 

I am not dependent on standard appearances for my income but for the very most junior it will be an important part of their income. And it is being slashed to the bone here. And serves as a perfect example for the general depletion of fees over the years. 

This is not the fault of those from the Bar Council, the CBA and the Circuits who have tried to come up with a better scheme. This is a result of the fact that those who control the overall level of fees have cut and cut again. This latest redistribution of the pot only serves to highlight that we are trying to stretch a sandwich sized piece of cling film over a football pitch. Every time we try to adequately cover one square inch we expose acres. 

The £60 mention fee, less than we were being paid 24 years ago, simply highlights that they stated intentions of the scheme – to provide payment that matches work and feeds the young barrister – is impossible to achieve if the size of the pot remains the same. 

Once upon a time, Andrew Langdon QC tweeted “And what we need to do is work together in resisting dual contracts and winning a rise in the summer of 2015”. He is now Chairman of the Bar. Dual contracts are in the long grass with most of Grayling’s output. But it is now heading towards the spring of 2017. Our voices of complaint should not be against those who have worked hard to design a modern scheme that reflects how evidence is served. Our voices of complaint should echo what the Chairman had to say in in that Tweet in March 2014. 

If the Government want a sustainable scheme, if they want the cost savings that removing PPE undoubtedly bring, then they should reward our contribution to the design of the scheme with more money. It is plain and simple. We should not work at these rates. 

So answer the consultation. Make your suggestions. But I respectfully suggest that your submissions should make the case for more money. And that you begin to press those in positions of inlfuence, power and organisational control to make the case with you. And to invite such people, those who lead our profession, to be in a position to lead us in a fight to obtain proper remuneration, with everything that entails.