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.

Every Dog has its Day

The white heat of anger feeds the desire to fight the Government at every turn. And we have plenty to be angry about. Years of cuts. Years of politicians badmouthing us. Year after year of our working conditions being eroded. It is the unprecedented sense of fury that now means the Bar stand on the brink of unprecedented action. The sort of action about which I have always dreamt. So why would I say that we should pause now? Why would I say, again, let’s take what is on offer and come back another day?

Some will say I lack back bone, that I am a coward. Some will say that I have self interest at heart. Some will say that I was wrong to say we should back down last time and I am wrong to do so again.

And that is okay. I do not hold a right to be right. I am not someone with all the answers. I am just doing what we all must do, I am listening to the views of others; I am weighing up what I think to be important; I am considering what can be achieved; I am learning the lessons of experience; and I am making my decision.

I have voted to accept the offer.

In 2012 I wrote a very angry letter. It decried the imposition of Fee Scheme C by the CPS. It railed against how wrong it was. It foretold the end of adequate representation of cases on behalf of the CPS. It was signed by 90% of Counsel on the newly formed advocate panels from Manchester. It was sent to the Chair of the CBA, ironically Max Hill. I had meetings with Maura McGowan about it. I had all the anger knotted up inside me. And yet nothing changed. Importantly we carried on doing the work, myself included.

Many will think that this would be an argument in favour of taking action. Again, we have been ignored for years. But I now appreciate that the rhetoric of being abused dogs means nothing in the cold reality of our fight to improve remuneration. What matters is actually improving our remuneration, not Shakespearean speeches or fantasy fee levels. It is about making sure that someone called in 2012, called in the year I was writing angry letters, is paid for things like the second day of the trial, is paid something which is worthwhile to conduct an appeal from the mags and is paid something approaching a reasonable fee when a trial is adjourned.

Once we have achieved that, we can continue to fight to get even better remuneration. We can fight to restore some sense of value to cases with higher volumes of evidence. We can fight to get paid for unused material. We can fight to get paid for the work we do. These are battles to be won, these are battles that can be won. They will not be won all at once.

By mid-July, a point at which we would be mid “no returns”, we will have a new Prime Minister and a new cabinet. That shiny new Boris or Jeremy will have made a lot of promises to get that new job. Those promises will have been to the public about headline grabbing initiatives and tax cuts and to their fellow politicians about jobs in that new cabinet. Those promises will not included more money for the Bar. We have the certainty of an improved offer on CPS fees that we can lock down right now, and a timeframe when we know that we will have to go in battle once again should AGFS not be improved. We need to secure those improvements now, before the political chaos of modern Britain means that cases going unprosecuted is just a footnote to what may lie ahead in Brexit Britain.

The bravery which many talk about being lacking in the leadership of the CBA is in fact the bravery that the Bar show time and time again in being prepared to take action. It is not the route of a someone that lacks courage to stand down from the fight, knowing that they will have to step forward again on another day. And that is what we are doing.

I didn’t back down in 2012, I just didn’t achieve what I wanted. I won’t have backed down in 2022, even if I achieve what I want in 2019. This is a war to be won battle by battle, and on Tuesday the 3rd of September, every counsel who is on day 2 of a trial, every junior counsel who has their non-custody, non-sex case stood out through lack of court time and every junior member of your chambers doing an appeal will be reaping the benefit of having won this battle and the battles that went on before.

That’s why I voted yes to the offer. I do so knowing we will probably be called upon again to act. I do so knowing that there are still cases which are not properly remunerated. But I believe this to be the best way. If I am wrong, if more people believe that we can do better by fighting on in this battle, I will be alongside you, refusing returns and taking part in whatever it takes. But I take the view that we can fight alongside each other now, or after we have secured this win. And I would much rather do what we didn’t do in 2012. I would much rather we improved things now.

The Sorcerer’s Apprentice

Her mother bent forward and placed a kiss on Hood’s cheek.

“You are grown up now, Hood. Time to make your way in the world. And we are so lucky that the Great Wizard, Lord Chan-see-Lore has agreed to take you as his apprentice” her mother said as she straightened up and wiped a solitary tear from her face.

Hood didn’t feel lucky. And at 12, didn’t feel particularly grown up.

“Now, Hood, be brave,” her mother said and steered her towards the heavy wooden door.

If she didn’t feel lucky, or grown up, she definitely did not feel brave. Every child in Gallia Pusillium was scared of Lord Chan-see-Lore. Every child had been frightened into good behaviour by the mere mention of his name. Every child knew the stories of his terrifying magical powers. And how he would use them if he found himself displeased with you. You were lucky if he turned you into a frog. There were rumours, dark rumours, that he had a spell which would instantly transport the target to the untamed badlands. And no one wanted to find themselves in the untamed territory known only as Defra.

As Hood tremulously approached the door it wheezed open as if pushed by an unseen hand. The young girl slowed in her pace and looked back at her mother who bore an unconvincing smile.

“I will see you tonight Hood, good luck and try, please try, not to make him angry….”

This last warning caused Hood to stop. She should turn back. She always made grown ups angry. She couldn’t help but make grown ups angry.

And then her feet were moving. Not by her bidding. Her mind was screaming at her feet to stop. Yet, as surely as if someone held her ankles and yanked each foot forward, she began to move towards the door, her feet slowly rising and falling like an astronaut walking across a moon of treacle.

Now she was across the threshold and the wooden door whooshed shut behind her. The air was still. The only sound was her heartbeat which reverberated around the stone walls of the short corridor which lay ahead of her.

A voice boomed from nowhere. The sound filling every bone in Hood’s quivering body.

“Ah, my new apprentice,” the voice deeply announced, “it is so good to have you here. Such a shame the previous one lasted such a short time. Such a pity he had to go. In a flash.”

The last words echoed, bouncing off the walls and repeating just that phrase. “In a flash“. Like a spell. A violent spell.

“Come, come. No need to tarry. We have much to do. Come, come. Pedestrianarius compellebulum”

It didn’t matter whether Hood wanted to do as instructed. Her feet responded to the incantation, moving of their own accord, propelling her to the end of the corridor. As she reached an oak and iron door it vanished into thin air and then reappeared behind her as her feet took two enchanted steps forward.

From the narrow confines of the passageway Hood suddenly found herself on a wide ledge in a vast chamber which spiralled above her head and out of sight, and plunged beneath her feet to dark dank depths. The ledge on which she stood was, in fact, a wide step in a staircase which climbed up the wall to her right and descended to her left. As she took in more of her surroundings she could see that the staircase led to the occasional square platform which jutted out from the wall.

Now, moving her own feet, she edged closer to the lip of her stair and surveyed the square platforms as they fanned out below her. On the one nearest to her she could see that it was set up like a sitting room, with a sofa, a chair, a coffee table and a rather chintzy rug. On another were all the accoutrements of a laboratory, tall flasks of bubbling liquid being heated by a dancing flame. On a third platform were a vast array of plants, being fed by a complex watering system and each bathed in light from an invisible source.

And on each Hood could see an intense cacophony of movement. Little figures darting this way and that. Here one turned down the flame as a flask was about to boil over, there one turned off the water as a plant pot filled to the brim.

Hood shook her head. These little figures were not human. Nor animal. They were no creature she had ever seen before. Their bodies were thin and gnarled. Their arms were twig like. They propelled themselves on what looked like grass skirted legs. If she was not very much mistaken, each figure was a walking, working little broom.

“Welcome to my little abode.”

Hood’s attention was dragged back to immediately in front of her as the Wizard appeared, as if by magic (and let’s face it, he was a Wizard, so it was going to be by magic). But it wasn’t just the appearance which was magic. He was suspended in mid air, floating, bobbing like a buoy at sea.

“I am the Great Wizard, Lord Chan-see-Lore,” the floating figure introduced himself, in a manner which was not in the least bit friendly. Not that an introduction was necessary. Every child knew the stories. And every child knew that the Great Wizard also possessed a great jaw line. Like a cliff face over a beach.

“I am Hood, Sir” she managed to say, whilst also bowing.

“Always refer to me as My Lord or Your Great Wizardness,” the floating Wizard commanded, “as you are my servant and I am your master. And I always demand a civil servant. As for you, you are my apprentice, my pupil. So I will call you Acolyte Hood.”

“Yes, Great Wizard,” Acolyte Hood bowed once again.

“And now, follow me,” commanded the Lord Chan-see-Lore as he floated upwards and out of sight.

Hood looked into the void. She wasn’t sure she wanted to follow. She wasn’t sure she wanted to be here, but she certainly did not feel like she wanted to step off the edge of her ledge and plummet below.

The Great Wizard reappeared.

“And, of course, I suggest you take the stairs,” the sorcerer added, before floating aloft again.

Hood took the staircase upwards. One flight. Two flights. Three flights. And on the fourth flight she found herself on one of the square rooms without walls like she had seen earlier. This time it was all bookcases and a desk. With the little broom like creatures dashing hither and thither, dusting books, putting books back on the shelf, getting books from a shelf.

Her new boss was standing behind the desk. Hood double checked. His feet were on the ground this time. His jaw was still jutting.

“Over time, Acolyte Hood, I will teach you magic. You are not here to do the menial tasks, that is why we have the enchanted brooms. They are here to do the fetching and carrying,” as he was saying this, three brooms scuttled towards him, carrying an ornate cloak.

The Wizard took the cloak from the three animated brushes, who instantly became stiff and lifeless, falling to the floor with the percussive sound of wood hitting stone.

Lord Chan-see-Lore swirled the cloak above his head and let it settle around his shoulders.

“Now this morning I have to go out and be out all day. So you have one job to do, Acolyte Hood. One job and one job alone. You see, my little enchanted broomsticks keep everything running smoothly. But the enchantment which turns wood to willing servant is time limited. So they need an occasional reboot.”

With that the Wizard produced a wand from inside the cloak and circled it above his head.

“Revival totalis”

All three brooms once more sprouted arms and their bristles parted down the middle to form legs. They immediately went about their previous task cleaning and sorting the library.

“Now, Acolyte Hood, the magic involved in the vivification of my little workers is amongst some of the most complicated magic imaginable, it is magic that you were learn over many years. But today you have to be in charge of making sure that my little helpers keep going….so….”

And with this the Great Wizard moved the wand in a tight figure of eight before his eyes and said the words “automatis enchanter”. The tip of the wand began to emit a low glow.

“What you must do, whilst I am gone is patrol each of my rooms and look for sleeping brooms. When you see one, touch the glowing tip of this wand on any part of them and it will revive the spell.”

Hood began to reach out her hand to take hold of the glowing wand.

“Not so fast,” said the Wizard as he drew the wand back towards himself, “for I have more to tell you. It is vitally important that you carry out this task solemnly. The brooms perform many tasks that not only keep this place working, but keeps it safe. You have to keep them working. But the magic in that wand is so powerful that you must treat it with great care. Touch only the brooms. Do not wave it around. Do you understand?”

Hood nodded.

The Wizard let go of the wand and it floated through the air until it hovered just in front of Hood.

“Take it,” instructed the Wizard.

Hood reached out with her left hand towards the glowing tip.

“NO CHILD!” boomed Lord Chan-see-Lore, “you must hold the other end, do not touch the active end.”

She switched hands and her fingers wrapped around the thin, magical reed. As soon as she touched it she could feel a slight warmth and a barely perceptible tremor passing through the wand.

“Do your task and do it conscientiously. The last apprentice was not conscientious,” as the Wizard was speaking he placed his hand inside his cloak and arced it above his head, sprinkling himself in some glittering dust, “and he turned into a….”

Before the last word was formed the Wizard vanished leaving a wide eyed Hood holding the wand like it was an unexploded bomb.

Suddenly the air crackled and the face of the Wizard appeared inside a spinning orb.

“….great disappointment. And I forgot to say. There are 131 rooms and 393 staircases. Get to work.”

The spinning orb began to fade, the features of the Wizard disappearing. Then it flickered once more into sharp focus.

“One final, final thing. Hold on tight.”

Hood instinctively gripped the wand hard as the orb vanished. And it was a good job she did as her arm was almost yanked clean off when she felt the Wand suddenly pull her to the edge of the room. Her feet scraped along the stone floor, trying to stop her progress to what seemed to be an inevitable death if she were to go over the edge. Just at the moment she was going to let go the shining tip of the wand pointed upwards and it were as if she was being raised by an invisible crane. Her feet left the floor and she soared upwards and out into the middle of the building with no floor or roof in sight.

The wand pulled her upwards and upwards, the air rushing past her face until whatever magical wings the wand had been given pulled her to the right and deposited her on the floor of the uppermost platform.

Hood sank to her knees, the terrifying ride over, the wand still rigidly clutched in her hand. She breathed deeply. Gasping for air. Slowly her heart returned to a mere thunderous beat.

When then prospect of death had rescinded to a recent and terrifying memory, Hood took a look at where she was. It appeared to be a bedroom with an unmade bed, complete with Harry Potter duvet set.

Next to her, on the floor, was a smallish broom. Remembering her task she touched the glowing end of the wand on the broom handle. It would be marvellous if a broom that came alive and lifted itself from a stone floor would then dust itself down. But it doesn’t. It just gets on with its work of making a bed.

Hood found two more inanimate brooms and set them on their way to tidying and cleaning. She then descended three sets of stairs, taking her three quarters of the way around the outer wall of the tall chamber when she came across another platform with a bathroom.

She spent a little time finding four brooms which went to work running the bath and cleaning the shower. She spent a bit more time trying to get a toothbrush and a toilet brush to grow arms before she realised that the wand spell only worked on those brushes that were already enchanted.

And so she went on. And on. Staircase after staircase. Room after room. Broom after broom. A room that housed owls and bats in cages. A room that was lined with scrolls and locked boxes. A room that was almost exactly like her mum’s kitchen.

She spent over an hour and, despite it being an hour of stairs, rooms and brooms, she realised she had only checked twelve rooms. She wasn’t very good at maths. But she was very much behind her target of 131 rooms.

Then she came across a room which had only a tall desk and matching stool. No brooms. No other furniture.

She had been working for over an hour. She probably deserved a little sit down. So she pulled herself up on to the seat of tall stool and found a thin book on the desk. It had a dark brown leather cover with golden letters across the front. The gold was so iridescent, it seemed to glow. In fact, as she looked more closely, it did glow. Five capital letters. “HMCTS“.

The glowing letters were so inviting. They called to her curiosity. She placed the wand on to the table and opened the cover.

Inside, handwritten in ornate writing was the expanded title

“Hexes, Magic, Charms, Teleports and Spells”

and the author “Gauke Chan-see-Lore G.W.”

She turned the page. And then the next. Each one contained the title of a spell, a description of what it achieved, an instruction as to how the wand should be waved and the words to be uttered. Spells to make chairs walk, clocks talk. Spells to turn people into frogs and frogs into flowers. Spells to freeze the air and spells to make the rain fall.

One caught her eye. And her imagination. It was called “One Conversation”. And it was a spell to amalgamate things into one. So if you wanted a giant bee, you could cast the spell on the beehive and you would have a thousand bees transformed into one. If you wanted the tallest set of ladders, you just needed some smaller ladders.

This was good. The movement of the wand was described simply as a flick of the wrist. The instruction was to imagine, as you flicked the wand in the direction of the desired object, a bigger version of the object. And then the nearby objects would join together to form a bigger version. Perfect.

Why waste your time with four or five brooms in a room? Having to touch each one. When one big broom only needs one touch. And would be much easier to find. Surely one large broom per room could do the work of more, smaller brooms more efficiently? It would be able to reach further with longer arms. It would not have to do all that running around.

Repeating the words of the incantation, Hood closed the book and grabbed the wand. The Great Wizard would be pleased at this increased efficiency, Hood thought to herself as she made for the staircase.

The next room below was one of the rooms which were covered with shelves and trestle tables with weird and wonderful plants on it. She noticed that some of the plants were bathed in light from some unseen source. Others were being fed water through tubes and pipes that ran here and there.

This room had a lot of brooms. She could see four or five working, with one or two prone where they had fallen.

Hood picked up one of the inanimate brooms and put it on the table before her. She closed her eyes. She imagined the broom, but much bigger. She flicked her wrist and opened her eyes.

Nothing.

The incantation. She had forgotten to say the incantation.

She closed her eyes again. She pictured a single, big broom. She flicked her wrist. And as she did the words “digitalis reformum” left her mouth.

She opened her eyes. Still nothing. She sighed. It hadn’t worked. A good idea. But she wasn’t a magician, just the apprentice.

Remembering her task, she touched the tip of the wand to the broom which returned to the little worker like the others. It stood up on the table.

Before it could move though, one of the working brooms stopped tending to an exotically coloured cactus and ran across the same table and launched itself towards the recently revived broom. It was almost as if it was going to jump into its twig arms. But it didn’t. As they came into contact with each other, each seemed to absorb in the other and there was one broom in their place, twice the size of the original.

The next broom rushed on its brushes and suddenly it was three times the size. Then the next. And the next. The broom was now taller than Hood. It began to work. It barely had to take a step to move between tasks.

Oh, how Hood glowed with pride. On her first day, her first day, she had done magic. Which she had taught herself. She was no disappointment.

She moved towards the staircase, ready to move and improve the next room. This chamber would be a hub of continuous improvement. As her foot hovered on the top step one of the little brooms came running up the stairs, passed her and threw itself at its larger colleague.

Hood shrugged. What was that sound? That scrabbling, scratching sound. The sound that her mother’s handbrush made when she scrubbed the doorstep.

Another broom appeared coming up the stairs. Then another. And another. And then the staircase was alive with little brooms, all running as fast those bristled legs would carry them.

Hood turned back to the single broom. It was growing and growing. It was now too big for the gap between the tables. A whole trestle table was upturned. Pots smashed on the floor. Soil went everywhere. The tubes and the pipes split, water turning the soil to mud.

Hood flicked the wand. “Enough,” she said. “ENOUGH!” she repeated. “ENOUGH!!” she shouted. Nothing happened.

The broom must have been a hundred times the size now. She needed the book of spells. That must have the answer.

She moved to go back up the staircase, only to find that it was a sea of scurrying brooms. She turned back to the room to see that it was a total mess. Everything was destroyed. And the broom was so massive that it was having to stretch its legs across the span of the chamber to find somewhere to stand. And still brooms came to add to its size.

Hood looked over the edge. She could see other platforms. Other of the square rooms which moments earlier had been tended to by a squad of dedicated brooms. She could see one of the laboratory style rooms. Where there had previously been simmering liquids there now appeared to be miniature fireworks going off. And not such miniature fires breaking out.

She could see a bathroom. The brooms must have abandoned their work when midst bath cleaning. Now the water they had been running from the tap had already overflown from the bath and was cascading from the edge of the platform like a waterfall.

The worker broom now filled the void at the heart of the chamber. Hood could no longer see its arms or its brush. Just a section of what would have been the handle, thicker than any tree trunk which had grown naturally.

At least the staircase was now empty and Hood could return to the spell book. She took the steps two or three at a time to find that the desk and stool had been overturned in the commotion. The desk top resting over the edge of the precipice. And the spell book gone.

Tears started to come.

“What have I don? What have I done?” wailed the distraught apprentice.

Hood could hear little explosions reverberating around chamber. Flashes of curious light lit the gloom. There were noises, smells and colours that spoke of chaos.

“What is going on?” boomed a recently familiar voice.

Without warning the Wizard was with her. Not floating. Not a face in a spinning orb. The Wizard, in front of her.

“I…I….,” stammered Hood.

The Wizard seized the wand. He waved it in a complicated pattern whilst hopping on one leg. Words tumbled from is mouth. Incantations too fast for Hood to follow. Sparks flew from the tip of the wand and then tumbled throughout the chamber.

The noises stopped. The light returned to a constant. There was still a mixture of smells. But they no longer told of chaos.

And no massive broom any more. Just the right number of brooms, in the right number of roles.

Hood cowered. She waited to hear a crack of thunder that would take her to Defra.

But nothing. Nothing happened.

The Wizard helped her to her feet.

“You are here to learn. And there was your first lesson. Never meddle in something that you don’t understand. Never will you achieve efficiency by mistaking ease or speed for efficiency. This system has taken years for me to develop. It improves itself, but not by such blunt instruments. It is for you to learn and to work better with what we have, not destroy what we have to make it better.”

The Wizard sort of smiled.

“Now, go home. Come back tomorrow. If you think today was difficult, tomorrow we will embark upon your training in the most difficult of tasks. The spells of security. It is all about tasting hot potions and the search for the three sacred objects – umbrellas, phone chargers and paper clips. These three things are known as the Holy Grayling. And the tricky thing is the three items may be entirely different tomorrow…..”

THE END

With apologies to Goethe, Walt Disney and a little bit to JK Rowling

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.

Tomorrow Will Be Just Like Today

I have spent some time wandering around a Crown Court today. I have had plenty of time on my hands as the defendant in one of my cases was due at court for 10.30 and was delivered into the building at 3pm because those tasked with bringing him from London decided they could get all the way to Manchester in half an hour. I live seven miles away and I cannot do that, but a prison van can. Give or take five hours. 

My wanderings saw me encounter the “Continous Improvement Hub Room”. I am sure I have mentioned this in blogs previously. And so I should. It is an important thing, the continuing improvement of the CJS. It deserves both a hub and a room. 

I was wondering, as I wandered, if things had improved much since the last time I mentioned the “hub”. A glance at the list told me that four cases were listed to refix their trial date as they had been removed from the list due to “lack of court time”. A further examination of the list told me that EIGHT out of sixteen available courtrooms were not sitting on crime today. Seven of them were just shut up.

Undoubtedly this will due to a lack of money in the budget to pay for part time judges to fill the vacant courtrooms. The only current answer to this predicament is to get more people to plead guilty early in the absence of evidence. Access online to a case summary is to replace access to justice. 

Paperless courts are definitely the future. Which is a good job. As the CPS currently have no means of copying or printing a single document in this particular building at the present moment in time. 

So the list that I looked at was on a TV screen, produced by the first step in modernising the courts, the Xhibit system of publishing lists and recording representation. I could not look at it on the main, huge flatscreen display in the reception to the building as that is covered in paper with a sign that tells us there is a problem with the server that will be fixed some time soon. I think the sign has now been there for the best part of a year. So we all gawp at the covered screen like a certain vintage of Mayans must have looked at their decaying temples and astronomically precise towns whilst, admittedly somewhat improbably, they sang Whitney Houston’s “Didn’t We Almost Have It All”. 

My promenade took me past the cell door, with its post-it-note addition on the bell that invited us to “press hard” because there is a faulty connection. I retired to the robing room to call Llisting. Unfortunately I could not as the internal telephone has been removed. 

So I began once again to circle the building to speak to Listing. And in the same circular fashion I ended up back outside the Continuos Improvement Hub. And in the same spirit I find myself writing exactly the same blog that I have written in the past. 

Will digital working cure all these ills? Not whilst the only papers loaded on to the system is a case summary which does not even mention the names of several people named in the indictment. Will “Better Case Management” cure all the ills? Not whilst defendants know they can put off the evil day to months down the line with a simple “not guilty” plea.

We should be working towards a better criminal justice system. Better case management contributes towards that.  It is far from the answer though, even when all the cherries fall into place in the slot machine of a single list of PTPHs that all plead. This does not mean that everything will suddenly improve. Not when the fabric, the infrastructure is so woefully underfunded. Not when those tasked with preparing the case are so stretched. Not when we fall into thinking that an increase in pleas is a panacea for faulty wiring and a system of private contracts which means that on two consecutive court days I have a defendant produced after several wasted hours without explanation or even a murmur of complaint. 

The system cannot rely on defendants who know whether they have done it or not pleading guilty. It has to be a system which can properly deal with all those defendants who do not. And that includes getting them to court on time, having a judge available to hear their case and a buzzer that gets you access to the cells. 

Those that continue to ignore this should be ready to enter their guilty pleas as the system decays further, for they are the ones who are culpable. 

Cradle to Grave

A few years ago the CPS advertised for lawyers who would see the case from “cradle to grave”. The advertisement showed a lawyer one step behind the police as they burst in through the door of the suspect’s house and then showed the same lawyer representing the Crown before the Crown Court Judge. The sort of lawyer that Emma Thompson would play in a film. 

The idea of case ownership is laudable. That a lawyer should have overall control of the case from start to finish has obvious benefits. Decisions are made early, issues are refined and the trial process is more efficient. It is true for both sides, prosecution and defence. 

It is such an important aspect of the Criminal Justice System that it is catered for in the Criminal Procedure Rules. Rule 3.19 of the CrPR requires the defence to notify the court of the identity of the trial advocate no later than the  day of the PCMH and no later than five days after any change. The system of payment of defence fees is specifically designed to ensure that the same advocate attends the PCMH and the trial. Somewhere it is said that the judiciary should make sure listing practices are adopted that makes this possible. 

Does it happen? Does it buffalo! (that was an autocorrect suggestion, but I thought “buffalo” said what needed to be said). 

So let me tell you a story. As ever it is a case that I have conducted recently. The truth is, for the advocate, that there is nothing better than the simple return the night before. You can breeze in, disagree with what has happened before, criticise everyone else and you cannot get the blame for anything. Its great. You’ve had no responsibility for editing, drafting and babysitting. Perfect. 

So that is what I found myself with recently. Someone else’s defence return for trial. Now I had cause to look at the PCMH form. In the box where the the names of the trial advocate and PCMH advocate had to be filled in there were the names of two different in-house advocates from my instructing solicitor and an in-house advocate from the CPS. 

This is not a complaint about in-house advocates. Employed advocates are an economic reality. In-house advocacy is not incompetent advocacy. 

However everyone familiar with the PCMH form will know that the identity of the defence trial advocate is required but the identity of the prosecution trial advocate is not. Look again at Rule 3.19, it focuses on the defence advocate only. You can justify it all you want, but the truth is that identifying an advocate responsible for the case is equally, if not more, essential when it comes to the prosecution. 

The original PCMH forms required the identity of the trial advocate. The CPS managed to persuade those that design the form to remove this requirement. The reason? Simple. The CPS want to keep hold of the case until they know whether it is going to plead or not. It makes their in-house advocates more economical if they go to court with a pile of PCMHs. The ideal of cradle to crave prosecuting was just the thing of an advert. Efficient and effective case management sacrificed for cost. 

Who was it that allowed this? The form, the CrPR and the PCMH itself are the provenance of the judiciary. The judiciary have allowed the financial requirements of the CPS to dictate what happens in the judicial process. Anyone for a bit of judicial independence?

That is just a general moan. As I say, the form named the trial advocate as someone from my instructing solicitor. However my return came from one of my colleagues. How come? Well at the PCMH the Judge refused to fix the case for when the identified advocate could do the case. So my colleague was briefed. As it happens the CPS also briefed the case out. My colleague even had a conference, in preparation for the trial. And then the trial date that had been fixed at the PCMH, at the insistence of the Judge and regardless of the original advocate’s availability, was pulled from the list the night before. 

Now here we have the problem with lists. Frankly courts do not have the resources to deal with the caseload that they face. The courts are not allowed to fill each courtroom with a case because they are not allowed to employ a Judge in each of the courtrooms that exist. So cases are listed with barely a chance of being heard. And get pulled the night before.

So my colleague had to take the chance that the trial would be refixed when he could do it. And, despite the fact that he had met the defendant in conference, the trial was fixed when he could not do it. So it was returned to someone who could do the new trial date. In the meantime the prosecution advocate found himself in the same position, so that brief went to someone else. 

I was not the person that the case had been returned to. That was another of my colleagues. But when it came to the night before the new trial date, listing did not have any judges. So pushed it back a day. Rendering the second substitute advocate unable to do it. So in I breezed. And everyone involved in the case between PCMH and my eventual trial date will get paid not a single penny. 

There is no prospect of continuity of advocate from start to finish. If it happens, it is more by luck than design. The CPS will, with the connivance of the judiciary, instruct on the basis of keeping the money in-house rather than on the basis of cradle to grave prosecuting. And then the trial will be fixed according to some arbitrary date that represents no more than a vain aspiration of when the case will be heard due to a lack of resources. And then everything will change again and the case gets thrown back on to the merry-go-round of listing and it is just a question of luck as to who ends up doing it. 

Oh, and by the way, the case was a sex case. The sort of case that gets some degree of priority. Allegedly. The sort of case with a vulnerable witness, a witness who suffers from the delays caused by lack of resources, who suffers because the case is not dealt with efficiently due to a plethora of ever-changing advocates on both sides. 

It became painfully obvious during the last election that this is not an issue that the politicians and the electorate are concerned about, despite some admirable efforts to make it an issue. What is needed is a true, headline-grabbing crisis to bring the general, day-to-day crisis to the attention of those that could do something about it but choose not to. Surely the time has come for those who work within the system, the system that fails on a daily basis, to create the sort of crisis and chaos that will make them listen. 

The Message for Every Day

This week I was fortunate enough to have the opportunity to contribute to the CBA’s Monday Message. Those of you who have read that or are familiar with my recent blogs will appreciate that I believe the Criminal Justice System in this country is currently under such strain that it has collapsed in on itself.

The casual observer will still think that the system is purring along nicely. They will see that courts still sit with bewigged and/or enrobed ladies and gentleman dotted around. They will read about a celebrity being convicted of the odd offence in 19. They will hear The Lord Chancellor pontificating about how to make the system better with a new fangled tweak here or a pointless pilot there.

What they do not see is the truth. They do not see the wasted hearings because the papers have not been served. They do not see the trials taken out because the court cannot cope. They do not see the defendants who are released because diligence has not been applied to their cases. I refuse to believe that there is a single, informed participant in the CJS who believes the system is performing in a way other than woefully.

It is our duty, the duty of the police, the duty of the CPS, the duty of the judiciary to stop the erosion of the CJS. If the NHS is responsible for the health of the nation, the CJS is responsible for the health of society.

Now is the time that the lawyers have to form an effective coalition to fight on behalf of the CJS. That fight is for the victims of crime, the wrongly accused, the vulnerable (whether they be witness, accuser or accused) and the guilty.

The first step in that has to be to put the past behind us. I was a vocal opponent of “the deal”. I am not going to allow the fact that many of my colleagues voted in favour of the deal to stop me trying to improve the system and the lot of those of us who work within it.

So many times I read comments about the betrayal of the solicitors by the Bar. Or the betrayal of some of the Bar by the leadership. Or the betrayal of just about everyone by the Law Society. I hear of talk of secret agendas and double crossing. The truth of that is not what concerns me here. True or not, we have to get over it. It is the past. That debate is closed.

The first step towards working in a way that is effective is to forgive and forget. And I am afraid it is as simple as that.

The Big Cheeses have to forgive and forget. There can be no more “I am waiting for the call” – make the call yourself. There can be no more “you failed to effectively organise” – the time is now to help organise.

The rank and file have to forgive and forget as well. This crisis within our CJS is bigger than all of us and our egos put together. It involves the financial future of us all and the future shape of our society. I no longer care what happened in March and April of this year. Time to focus on what is going to happen in March and April of next year and the year after that.

Another Day, Another Moan

It is always the defendant’s fault. If it’s not the defendant’s fault then it will be the fault of the defendant’s dastardly lawyer. If we come down hard on them the system will run more efficiently and will be fairer as well. They are the enemies of justice. They are the cause of thousands of pounds of public funds going to waste.

Which is exactly what happened with a trial I defended recently. The shameful defence lawyer (me) asked for an adjournment because the CPS had served the medical evidence at 2pm on the first day of trial. The statement had only been written in May. It had only been sitting there on the file as the timetable for the service of the evidence lapsed in June.

However this is not what I am going to moan about today. It is such a common occurrence that it is barely newsworthy. All those lawyers getting paid very little as justice is delayed by glitches in the system is just not worthy of comment. Or worth doing anything about.

What I am going to moan about is the preliminary hearing that happens in every case. And yes I know I have moaned about this before. A lot. However something happened to me recently that highlighted how crazy the system has become. How terribly ill-thought. How dreadfully wasteful.

I prosecuted a prelim a while ago. When the PCMH came around I had not received any papers. I attended at court and discovered why. The prosecution had decided to discontinue the proceedings as there was no realistic prospect of a conviction.

This decision can only really be taken when all the evidence has been properly reviewed. The service of all the evidence only takes place after the prelim. The prosecution can bring an end to the proceedings by issuing a notice pursuant to section 23A of the Prosecution of Offenders Act 1985 which would bring an end to the proceedings there and then without further cost.

The problem is that the system now insists that an indictment is prepared for the prelim. This is so the defendant can plead guilty before the prosecution have a finalised idea whether there has been an offence or not. The consequence of this is that the prosecution are precluded from using the section 23A mechanism for discontinuing the proceedings because they can only do it before the indictment is preferred.

Brilliant. One device designed to force defendants to plead guilty before anyone knows whether they are guilty just to save costs defeats the device designed to save costs where everyone accepts the defendant is not guilty.

Ladies and gentleman, I give you the criminal justice system. Injustice, ineptitude and inefficiency.

Towering Inferno

The current Lord Chancellor likes to see the criminal justice system as a business. Pieces to be sold off to the highest bidder, success being measured in cost saving rather than quality. The boss wants to achieve efficiency and cares nothing for justice.

If it was a business then the reality is that we would torch it and claim the insurance money. It is difficult to think of a single element of the CJS that is currently working at all, let alone working well.

It is a system that is hugely inefficient. It seems the Crown Prosecution Service are incapable of getting a single set of papers out on time. The result? Wasted hearings, poorly prepared hearings and wasted money.

Preliminary hearings in every Crown Court case clog the lists. “Provisional” trial dates are set with no idea as to witness availability. Actually that’s not true. The dates are set with no idea as to who the witnesses are, what they say or even if there are any witnesses. You may as well book me in for an appendectomy in six months time, just in case my appendix ruptures.

The result? Wasted hearings, poorly prepared hearings and wasted money. Oh, and huge delay. Every day a Circuit Judge deals with orders that the Magistrates could have dealt with in a dozen or so cases. Meanwhile that Judge cannot hear a trial. Elsewhere in the list another a Judge fixes a whole series of trial dates that probably are not needed. Meanwhile in August 2014 a two day, non-custody burglary trial is listed for April 2015. Utter lunacy.

If the boss is bothered by “results” and “efficiency” he needs to reach for the petrol can and the matches. If the boss cares about quality and justice, he needs to reach for the chequebook.

A Brave New World

A Crown Court somewhere in England and Wales in the days after the Lord Chancellor has banned paper. The courts have gone digital. The case of Regina v Sinclair is called on. Her Honour Judge Anna Logg QC presides.

HHJ: Who prosecutes this case?

Counsel rises to his feet

Pros: I do, Your Honour.

HHJ: Why have you not signed in on Xhibit, Mr Sugar?

Pros: The computer was down in the robing room, Your Honour…..again. I should say that m’learned friend Mr Babbage defends.

HHJ: Very well. Mr Babbage, I understand that this is your pre-trial application to exclude evidence?

Def: Correct. I assume Your Honour received my skeleton argument?

HHJ: No, Mr Babbage, I have not received a skeleton.

Def: I emailed it to the Crown Court Office over a week ago, Your Honour.

HHJ: That will explain it. The Crown Court Office is the Bermuda Triangle of correspondence.

Pros: I emailed mine directly to Your Honour, I hope you received it.

HHJ: Yes I did, Mr Sugar, thank you…..

Mr Sugar swells with pride and nods a little condescendingly at Mr Babbage

HHJ: ….but I could not open the attachment. Apparently it was not a compatible format with the old Judicial laptop. So, Mr Babbage, perhaps you would like to direct me to the evidence objected to.

Def: Your Honour it is the evidence of the witness Alan Turing, served by NAE last month.

HHJ: Do you have a page number?

Def: Yes, Your Honour, it is page 73 of the deps.

HHJ: My papers only run to 69. Mr Sugar, can you supply me with a paper copy of the statement?

Pros: No.

HHJ: That is not very helpful Mr Sugar….

Pros: I don’t mean to be unhelpful, it’s just that there isn’t a paper copy. This file is entirely digital. So I don’t have one to just hand to you.

HHJ: (sounding exasperated) So how am I able to view this statement?

Pros: I can email it to Your Honour (counsel blushes) and this time it will be a PDF so there should be no comparability issues.

HHJ: Very well, Mr Sugar.

Counsel sits and begins to type at his laptop. Silence fills the courtroom. Time seems to stop.

HHJ: I thought email was meant to be a rapid form of communication, Mr Sugar…..

Pros: It is, it’s just that I can’t get on to the court wifi. Seems Your Honour’s courtroom is a blackspot…..

Babbage takes delight at being able to intervene

Def: My iPad is picking up the wifi from the coffee shop over the street so I have been able to email it to Your Honour.

Pros: (leaping to his feet and speaking urgently) STOP!

HHJ: (testily) Mr Sugar!! There is no problem with Mr Babbage assisting the court in this way…..

Pros: Its not that, Your Honour. The lights have gone out.

HHJ: Well Mr Sugar, I have had heard it suggested that the lights are on but no one’s at home but have never been accused of my lights having gone out.

Pros: Not Your Honour’s lights….the clock. The red clock at the front of court. If it goes off we are not being recorded.

The clerk stands and whispers to the Judge. The clerk then disappears under the desk and the sound of plugs being unplugged and reinserted are heard. The clock flickers back on

HHJ: At least nothing of any note has been missed in all that. And now I do have the statement, so thank you Mr Babbage and the wifi facility offered by “Bump and Grind” coffee shop. Now, what is your objection to the statement.

Def: The first ground is the late service of the statement. Your Honour will see that the statement is dated three months ago but was only served last month.

The Judge raises her hand

HHJ: That should be easy enough, I am sure there is a relatively straightforward explanation for the delay. Mr Sugar?

Pros: I am instructed the delay was caused by the statement being twiffed to the CPS by the officer……

HHJ: Twiffed?

Pros: Yes, twiffed. That is when the officer places a document in the case on the case tree…..

HHJ: Case tree?

Pros: Yes, when a document is electronically transferred from the police to the CPS it appears on the “case tree”. The case tree is where the documents are kept, electronically. Now the problem is that when the officer “twiffs” the document on to the tree the file name that the officer has given the document disappears. It gets relabelled “Document 1”. It being the first document twiffed on that occasion. So if documents are twiffed on more than one occasion EVERY document is called “Document 1” so the caseworker has no idea that a new document has arrived. It is a case of not being able to see the would-be statement for the electronic trees.

HHJ: I am sure that makes sense to somebody somewhere. Is the long and the short of it that the police system and the CPS system do not talk the same language?

Pros: That fairly sums it up, if I may say so.

HHJ: Remarkable.

The Judge pauses and seems to sniff

HHJ: Can I smell burning?

Pros: (looks down) Errrr yes, Your Honour. It would appear that my CPS-issue laptop has spontaneously combusted…..

HHJ: Gentleman I am going to rise until such time as the technology allows us to make progress with this case. May I suggest that a Mr Caxton invented something that seemed to fit the technological demands of the courtroom?