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.

Internal Combustion

I am a fairly level headed chap. I pride myself on being the calmest person in the room. Right now I am livid.

Anyone following my Twitter or this blog will probably appreciate that I am not a fan of the unpaid internship. I have made my views plain over the last couple of weeks. The news I heard about today has taken my view of the unpaid internship and shaken it a little. I now realise there is something worse out there – the internship which the candidate actually pays for.

I have been forwarded an email which was sent by the Student Lawyer Magazine. The email makes the following offer

Did you miss out on a vacation scheme or mini-pupillage this summer? Make sure you secure a legal internship to enhance your CV and maximize your chances for next year.

Our friends at Virtual Internship Partners offer legal internships, working remotely and flexibly, between 15 and 30 hours a week. Work from home, campus, or your favourite coffee shop. You’ll work on meaningful projects and get real world experience in a legal role designed to develop key skills needed to further your career prospects, whilst receiving valuable training and coaching. You can even go global with an international experience through Virtual Internship Partners’ network of amazing host companies!

This seems like a kind offer from the friends at Virtual Internship Partners. An opportunity to have a work placement that fits around you. Brilliant. But there is more.

They offer a comprehensive professional development course helping you develop your competencies for the workplace. They will give you regular 1-to-1 career mentoring sessions. And you get references from your host company. So that seems fair, right? You give your labour for free but nothing in the business world should be given away for free so you get something back in the form of mentoring. Win/win! Right?

One small catch. You pay for this. You pay £695. Virtual Internship Partners are placing people to do work and asking them to pay for the privilege (plus some mentoring thrown in, and don’t forget the reference).

I suppose the silver lining is that The Student Lawyer Magazine has at least been able to secure applicants £100 off from their friends at Virtual Internship Partners. Which is the least they can do. Particularly when a little cursory internet searching tells you the “sister” company of Virtual Internship Partners is CRCC Asia. The co-founders on VIP’s website are named as Edward Holroyd Pearce and Dan Nivern. Edward is a director of CCRC Asia. Both Edward and Dan are also directors of Gradmedia….the company that publishes The Student Lawyer.

I am sure this is all above board. Edward has been interviewed about it on the BBC. He is upfront about the fact that the participants bears the “costs”. There are testimonials from satisfied customers, although one of them is actually an investor who one suspects did not complete his internship through VIP. What it is, however, is morally wrong. The email is morally wrong to not disclose the connection and the concept is wrong. It is charging people to work and giving them some support along the way.

Law firms – if you want an intern, pay them a wage.

Apples and Oranges

And so this evening my eye fell upon a piece in The Spectator Online by Ross Clark, you can read it by clicking on this link. My attention was drawn to the article by the howls of wounded lawyers taking to Twitter to say “pah” or to invite Mr Clark to spend a day with them to see how the legal system really works. So I was forewarned lawyers would come out of the article badly. I had no idea how badly the authors of comment pieces in The Spectator would also fare.

The title is “Why MPs should not stop legal aid reform”. The catalyst for the piece is the recent pronouncement of Nigel Evans MP that legal aid reform had gone too far, something he discovered for himself when accused of a crime. The premise of the piece – well that may take a little more unraveling, but I will give it a go. Mr Clark seems to be suggesting that the law is an industry which is resistant to change and operates as a conspiracy to make it too complicated for the layman to represent themselves. He argues that reform is needed to simplify the law and procedure. So far so good (although the I confess to having a wry smile at the  use of the word “arcane” in a plea for simplification) but I cannot help but feel this is not foreshadowed by the title or by the catalyst in the iniquity of acquitted defendants who do not qualify for legal aid having to fund their defence.

The headline lays down the gauntlet as to why MPs should not stop legal aid reform, regurgitates some figures about the cost of legal aid (and more of that in a moment) and then goes on to propose reform to the legal system. It fails singularly to deal with the issues raised by the case of Nigel Evans. It does not deal with the issue of those denied access to justice whilst the legal system remains as it is but funding is denied to so many. It fails completely to deal with any issue about the provision of legal aid. It is the equivalent of me standing before a jury to do my closing speech and delivering a plea in mitigation.

The complaint is made that complex language and procedures keep the layman bewildered by the legal system and that the answer is reform to make it clearer so that people like Nigel Evans can represent themselves. This argument always ignores the fact that most lawyers bring more to the case than their knowledge of law and procedure. We bring skills in litigation and advocacy that go way beyond what is written in a statute or contained within the law reports. Thinking that if only we make the language less complex and the procedure less procedural we will open up law to non-lawyers equates to making us all pilots if only we stop calling it the altimeter and instead refer to the “how far we are off the ground” dial.

Time and time again both experience and academic study shows that lawyers can save an awful lot of time. One of the main things I do is act as a filter between what the client may think is relevant and what is actually relevant. I spend hour after hour agreeing issues and evidence with my opponent that someone without my experience and detachment would never agree.

That is not the only filter I provide. The law recognises that people charged with the sort of offences of which Nigel Evans was acquitted should NEVER be allowed to cross examine the complainant themselves. This is a law which is good. This is a law which benefits those who are the victims of such offending. It encourages reporting. It facilitates the complainant giving their evidence in the best way possible in the circumstances. So which reform would Mr Clark like to see where someone in Mr Evans’s position would be given the ability to cross examine their accuser? Not all in this position are innocent. You get very unpleasant individuals only too eager to exercise control over their partner through the witness box. I am a filter. I am a safeguard. A safeguard that legal aid reforms has now removed from many a family case. What a triumph.

And now the figures. This is depressingly familiar. Depressingly misleading. Depressingly inaccurate. The piece states

“A Council of Europe Report in 2014 – after the legal aid reforms began to take effect – calculated that UK taxpayers were spending £2 billion a year on legal aid, compared with just £290 million in France and £272 million in Germany.”

Now this is where I would suggest it starts to go badly wrong. The suggestion is that we spend £2 billion a year on legal aid after these reforms and, therefore, more reform (i.e. cuts) are required. In fact the spend on Legal Aid in 12/13 was £2.2 billion; 13/14 £1.9; 14/15 £1.7; 15/16 £1.5; 16/17 £1.6 and 17/18 £1.6. The MOJ budget has suffered the biggest cuts in Whitehall, down from £10.9bn to £6.4bn.

It is wrong and a little bit lazy to quote £2bn without the further context of what the Legal Aid spend is now when considering whether the legal aid system, or indeed the legal system, requires further reform. And yet the really misleading bit is not in the figures. Or the context. It is in the statement that the £2bn came from a report in 2014 after the complained of cuts had already done their work. Just a moment with Google would tell Mr Clark how misleading this is. LASPO gained Royal Assent in May 2012. Many of the changes in Legal Aid were introduced in April 2013. The system whereby acquitted offenders of certain means footed the cost of their defence was not introduced until January 2014. Inevitably the “savings” take a while to show in the figures. In 2014 the cuts had barely had time to have an impact. It took time. Hence the decline we see in the figures I quote above.

You may well think I have been a little unfair on Mr Clark. Google would tell him that LASPO was in force in May 2012 so the report he quotes could reasonably be said to be after the reforms had begun to take effect. Google may not have told him that the changes were staged over a long timetable. But Google would also have given him access to the report. Even five minutes with the report itself would have told him that the figures in the report were from 2012 at the latest. That is before the legal aid reforms were implemented. Looking it up on Google and reading the source material is not Pullitzer Prize winning journalism.

The bizarre thing is that the piece manages to argue against itself, I suspect unwittingly. The comparison is made with the Legal Aid spend in France and Germany. The piece further argues that reform to our legal system, to make us more like Germany and France, would see our legal aid budget further reduce. This tells us that the system may be a driver of cost.

Let us look more at the 2014 report. It tells us of the whole spend of countries on courts, legal aid and the public prosecution system. The figures show that England and Wales spent €5.4 bn (population 56.6 million), Germany €9.1bn (pop 80.5 million) and France €4bn (65.6 million). The costs for the court system excluding legal aid per inhabitant is €103.5 in Germany but only €42.2 per person in England and Wales. If Herr Klark in Das Spectator has used that figure to suggest reform is needed to the German Court system because we spend so much less than them, well they would be comparing Apfel und Orangen.

Time and time again it is pointed out that comparisons of legal aid spend in an adversarial system to the legal aid spend in an inquisitorial system is almost meaningless, and yet, like HG Wells’s Martians, still they come.

The legal profession is less resistant to change than many would believe. What we are resistant to is the poor and misleading use of evidence. We are resistant to misinformation and the misinformed. Mr Clark is more than welcome to advance his views on reform to the legal system but they need to be based in reality. They need to deal with the real injustices happening week in and week out because of the removal of legal aid and suggest something for the here and now. If he sees the long term answer to be a reform of the judicial system that has to be thought out with cost implications, both financial and societal. And whatever he argues for, he needs to rely upon more by the way of research and less by lazy trope.

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.

For Whom the Bell Tolls

It’s okay, I readily accept that the View From the North is invariably a “glass is half full” kinda view. When I got my acronyms a bit scrambled recently, a commentator observed, quite rightly, that CSJM did not stand for Criminal Justice Secure Mail, but could well mean “Can’t Spell, Just Moans” when it came to my blog. If you have not met me, you can rest assured that my moaning written persona entirely reflects my actual personality. Think Jack Dee without the gags. 

My blog is a cheap form of therapy. It allows me to air the things that irk me. Irked is a pretty permanent state for participants in the criminal justice system. My irk-o-meter is frequently off the scale. And today I am going to share with you something that has been irking me for a while now. 

It is that bloody bell thing. 

I should say that I am not reprising my critically acclaimed role as the Hunchback of Notre Dame in the eponymous theatrical production by the Northern Circuit Players. I refer, of course, to CCDCS.

  
It is that little bell. The little bell with the number 100 in a green circle. 

For those of you yet to be initiated into CCDCS Club, this is the method by which you are notified if anything new is added to your cases on the system. 

Now this is a vital function of the system. As the prosecution upload new evidence or the defence serve skeleton arguments in digital form, the participants need to know this has happened. In the days of paper, the evidence or the application would land in your pigeon hole with a letter attached. I had one solicitor so wedded to paper communication that when I sent him a written advice he would immediately send a copy of it back to me with a letter indicating that I had sent him the attached advice. Which was nice but a tad wasteful. 

Now the new document gets uploaded to the system. And it is vital that you are aware of this in order that you may respond. So three cheers for the little bell thing that tells us something new has arrived. 

Unfortunately it is a bell from the W H Auden poem. It is a bell without a clapper. You get no notification that you have a new notification. One would have thought it would have been relatively easy to have an automated email to tell you that something had arrived. 

I am sure you are all shaking your head at my laziness. “Get a grip” you say, “the bell is telling you something is new whenever you log on.” The problem though is that it only informs you that there is something new by the number increasing. So if you log on one day and have 95 notifications, the only way you know there is a new notification is if you recall how many notifications you had last time you logged on. 

I know, I know. This is me just nitpicking, as per. 

But then you click on the bell to see your notifications. And here the problem is magnified. Your notifications are grouped together case by case and the cases are arranged alphabetically.  So all the notifications for the case of Adams appear together, then all the notifications for the case of Brown (I tell you this just in case you don’t understand how the alphabet works). There is nothing to tell you to which case the new notification relates. The notifications are not ordered in terms of newest notification first, which would be the intuitive way to arrange them. 

So you have to use a combination of recalling when you last logged on, when you received the last notification in any case and then scroll through an ever increasing number of notifications trying to spot the date when material has been added. This is particularly tricky when, as I have today, you have leapt from 95 or 96 to 100. I have no idea how many notifications I am looking for. 

Curiously, when I log on to my notifications today (29th April 2016) the list of notifications informs me they are “shown to Friday, April 15, 2016”;

  
which makes little sense. The list shows me cases to which I was invited in February all the way to cases I was invited to this week. It shows notifications that range in date between February and today. I have absolutely no idea what the date shown above relates to. At first, before I realised that the notification system had been designed by a former employee of Bletchley Park, I was misled into thinking the date on this page was reassuring me I had no new notifications. 

So that is the end of my moan. I fail to understand how a system has been designed in such an unhelpful way. And it really is an obstacle to effective working. The parties being notified of new material is essential to an effective execution of our duties. That little green bell is a recipe for disaster. 

And now I have that off my chest, let me bore you for a moment or two about this crazy weather……

And Death Shall Have No Dominion

Make a note of this date. Go on, write it down now. It is 21.12.15. Or, if you are American, 12.21.15. 

What is so special about this date? Well it might just be the day when the Criminal Justice System finally took leave of its senses. I thought the suggestion of PTPHs being immovable and un-adjournable was going to be the zenith in jurisprudential crazy talk but I could not be more wrong. 

Today we have people talking about trying Lord Janner AFTER HIS DEATH. Yes I have just used bold, caps lock and italics to write that. I have had to deploy every formatting tool available to me to put emphasis on those words because they are right up there with Popes making horses Cardinals as an indicator of people playing with the power at their disposal as a whim. 

My fellow blogger, The Secret Barrister (s/he wears the gown as a cape with underwear over their clothing), has written a blog that deals with the practicalities and the background to this story. I recommend you head on over there to read it. But not before you let me rant for a little while longer. 

It is one thing to have trial in absence. It is one thing to have a trial of the facts when the defendant can play no meaningful part in proceedings. But to try someone AFTER HIS DEATH is a proposition so ridiculous it still requires the full gamut of format options. 

Where will this end? Why don’t we try Fred West? I mean, he voluntarily offed himself so we could probably use the existing trial in absence guidance, with a few tweaks. Or perhaps this ushers in a whole new era for the Criminal Justice System? From now on we can prosecute offences even where the offender has not been identified. It will probably require a change to the verdicts as it is a bit difficult to announce an anonymous, unidentified perpetrator as being Guilty or Not Guilty. Answers on a postcard please…..

This may in fact be an example of joined up thinking in Government policy on Justice. Recently Shailesh Vara told us that access to justice did not necessarily require access to a courtroom. Perhaps we can now add “does not necessarily require a pulse” to such legal brilliance. 

I wager my full AGFS fee for a defence sentence that this will not happen. The real problem is that the CPS have not come out and immediately said so. Their statement is cruel because it leaves open the possibility that this charade may happen. It will raise expectations that will have to be dashed in the name of common sense.

When a criminal justice system is used for the purposes of a show trial we all stand at the gates of hell. The CPS, in my view, made the wrong decision to charge Janner. The DPP’s judgement was right in her first decision. I just hope that they do not allow public interest in their next decision to be mistaken for what is in the public interest. 

Do not try a dead man. 

A Tale of Everyday Life

A courtroom somewhere in England. Her Honour Judge Christine Jones-Smith presides. The case is listed for mention with the defendants to attend from custody. The Prosecution are represented by Mr Justin Messenger. The defence are represented by Miss Fi Owens and the ever busy Miss Rhea Turner.

The case is called on and only one defendant is produced in the dock. The present defendant is identified and the parties are introduced. 

HHJ CJS: Miss Owens, where is your client?

MISS FO: I am told by the custody staff that he has not been put on the van. In fact my learned friend Miss Turner informs me that my client shares a cell with her client and when the officers came to their cell this morning they called upon the co-accused but, despite their insistence that they were both required, they only placed the co-accused on the bus. 

HHJ CJS: I see, a case of “your name’s not down so you’re not coming out”…. never mind…. it is only 10 am, still plenty of time to get him here….

MISS FO: I have made enquiries and it is thought he could be here by 3pm.

HHJ CJS: 3pm!?! 3pm!?! The prison is less than four miles from here. Who says it will take them until 3pm?

MISS FO: I spoke to the staff downstairs who work for 3PO. They spoke to GeeForceAnnie who are the ones that bring them here. It took a while for them to speak to SecurGroupitas who run the prison. Apparently the next GeeForceAnnie van available is one that is currently delivering someone missed from yesterday’s list at the other end of the County and 3PO cannot speak to that van directly, because it is not their van, so SecurGroupitas have to contact GeeForceAnnie head office to get them to arrange it. All of which takes time. Apparently. 

HHJ CJS: There seems little I can do about that so let’s see what progress we can make in his absence. Mr Messenger, this case is listed today to see if the problems that have beset this case have been ironed out. Now then, the defence have made several requests to have the exhibit in this case examined scientifically. The exhibit is a weapon is it not? In fact, a most unusual weapon. I believe the witnesses describe it as a “broadsword”. So Mr Messenger, has that examination now taken place?

MR JM: I am afraid not, Your Honour. 

HHJ CJS: Why not, Mr Messenger?

MR JM: Because we’ve lost it….

HHJ CJS: I’m sorry Mr Messenger, did you just say you’ve lost it?

MR JM: Not me personally, I am only the messen…..the conduit for that information. It has been lost in the Police Property Store.

HHJ CJS: A broadsword?

MR JM: Yes, Your Honour.

HHJ CJS: The broadsword in this case? How? How did the police lose a broadsword? I mean it’s not as if there has been a sudden spate of immortals running round shouting “there can be only one” in a Frenchly Scottish accent whilst trying to lop the head off total strangers, has there? There can be only one broadsword…in the possession of the police…you don’t just lose that in an officer’s desk drawer…

MR JM: No. It went into the Property Store. It was logged into the Property Store. The computer says it is still in the Property Store. But…..

HHJ CJS: What, Mr Messenger? But what?

MR JM: The Officer has had a jolly good look for it but can’t find it. 

HHJ CJS: Perhaps he should hang around the lake and see if any shimmering ladies emerge carrying Excalibur….Thankfully the last time the case was listed for trial it was discovered that there was, contrary to what the police had originally said, there was CCTV of the incident, if I recall correctly…

Miss Turner gets to her feet to assist.

MISS RT: Your Honour is quite correct. In advance of the last trial date the the Officer in the Case provided a statement in which he described how he had viewed the CCTV from the premises but that it showed nothing and was not capable of being downloaded. However on the day of the trial the owner of the premises provided a statement saying that the footage did show the incident and that it had been burnt on to a disc and handed to the same Officer.

HHJ CJS: At least that means we can see the invisible broadsword in action. Please be the bearer of good news this time Mr Messenger? Have we located the disc?

MR JM: Yes, Your Honour, there is a statement from the Officer. The disc was logged into the Property Store…

HHJ CJS: Why do I have a sense of dread, Mr Messenger? Was the disc lost by any chance?

MR JM: No, Your Honour. 

HHJ CJS: Recorded over with Coronation Street so the night shift didn’t miss it?

MR JM: No, Your Honour. It has…..

HHJ CJS: No, no, Mr Messenger, I am keen to guess. Is it in a format incompatible with any known playback system?

MR JM: No, You Honour.

HHJ CJS: Has it been mistaken for a broadsword and stored down the back of a radiator?

MR JM: No, Your Honour.

HHJ CJS: Come on then, enlighten me.

MR JM: It has been destroyed. 

The Judge indulges in some uncharacteristic eye rolling. 

HHJ CJS: How, Mr Messenger? How was it destroyed? No. Why? Why was it destroyed? In fact, both. How and why.

MR JM: The Officer asked about it at the Property Store and was told it was there. When he went to collect it three days later it had, unfortunately, been destroyed the day before. Apparently where an item is not listed as an exhibit or as unused material in a live case they are automatically destroyed after six months. It is a rigorously effective system. It is all in the Officer’s statement.

HHJ CJS: Can I see it?

Mr Messenger takes the opportunity to do his own eye rolling. He speaks deliberately and slowly. Each word is separately formed and clearly enunciated. 

MR JM: It. Has. Been. Destroyed….

HHJ CJS: NO! NOT THE FOOTAGE! THE STATEMENT. CAN I SEE THE STATEMENT?

MR JM: Yes, Your Honour, and a little bit of no.

HHJ CJS: Sorry?

MR JM: You may see the statement, but only in due course. At the moment you cannot. 

HHJ CJS: Don’t tell me Mr Messenger. Lost? Destroyed in game of Rock/Paper/Sword at the Property Store? Written on incompatible parchment? Touring the County like the missing defendant?

MR JM: Nothing so simple I am afraid. The CPS printer is broken.

HHJ CJS: But it was only last week that it broke down and was repaired.

MR JM: Again, a little bit of yes and a little bit of no. It certainly broke down last week but has not been repaired in the interim. And now it is more broken than it was before. 

HHJ CJS: Do they not have someone who can repair it?

MR JM: Not on the payroll, Your Honour. Rather than have a specialist waiting around to do the specific jobs that arise it is much cheaper to use outside contractors to come and do the work according to their experience and ability. You avoid pensions, sick pay and get to pick just the right person. 

HHJ CJS: We are still taking about printer repair are we? What has been done?

MR JM: The Caseworker present in Court contacted the Area Business Manager who is the person to whom such faults should be reported…..

HHJ CJS: And?

MR JM: The Caseworker was told to sort it out himself.

HHJ CJS: What do they expect him to do? Find a repair person or get out his screwdriver and do it himself?

MR JM: Not entirely clear Your Honour. The Caseworker did point out to the Business Manager that he was looking after two courts today and that Your Honour had nine mentions dealing with trial readiness where the relevant correspondence and memoranda were only available on the Caseworker’s laptop and he had no means to print out that information and ended the telephone call by asking whether the Business Manager also wanted him to shove a broom up his …… well, the conversation ended without the problem being resolved. 

The CPS Caseworker in court attracts Mr Messenger’s attention.

MR JM: If You Honour will forgive me for a moment, I am just receiving some instructions. 

Mr Messenger leans forward and has a whispered conversation with the Caseworker.

MR JM: It transpires that the contract to repair the printer is held by GeeForceAnnie. So perhaps the van that brings the absent defendant can also bring the engineer…..

The telephone on the Court Clerk’s desk rings. She answers it and conducts her own whispered conversation with a cupped hand concealing her mouth. Once she finishes the conversation she stands, turns to face the Judge and relays the information to Her Honour. The Judge sighs.

HHJ CJS: I have just been told that the Court does not have a Judge available to hear this trial tomorrow. I am also told that there are only four jurors not currently engaged on trials available. So we have no Judge, no jury, an absent defendant, missing exhibits and missing statements. Miss Owens and Miss Turner it would appear that we are missing most of the essential ingredients of a trial and you would say that it is impossible to have a trial tomorrow?

BOTH: Yes, Your Honour.

HHJ CJS: On the defence application I will adjourn this trial…..

Both Miss Owens and Miss Turner look a little bemused. The Court Clerk eagerly ticks the box on the monitoring form indicating that the trial was adjourned upon a defence led application.

This is not the first imagined Courtroom Scene I have written. But this is not totally imagined. They are all problems that have arisen in cases in which I have been involved. And yes, that included a lost broadsword. Obviously they do not all happen in each case but they happen with such frequency that there is something very obviously wrong in the system. Things that will not be solved by endless Practice Directions. If nothing else, you can also play “spot the Monty Python plagiarised lines”…..

This is My Decision

So the CBA have announced their ballot. If you are eligible to vote I urge you to do so as soon as possible. The vote is available here. It is absolutely vital that you vote and have your say, either way. 

There has been some consternation about the fact that the ballot has a closing date two weeks away. I can understand some frustration with this. Of course if lots and lots of people vote very quickly the period may be foreshortened. 

I pause for a moment to observe you should be careful what you wish for. Many of us wanted a ballot. We have got a ballot. Impatience expressed with intemperance may not be the best way to persuade. Herding cats is a difficult task to manage. The CLSA  and the LCCSA know that only too well. They have been corralling felines for months and months. I know that time is of the essence, however sometimes patience is rewarded. 

The question in the ballot does start off with one tiny mistake. The opening line is “solicitors face an 8.75% cut to litigators fees.” The mistake is not in the missing apostrophe or an extra “s”. Only an arse would point that out. Actually it is two mistakes. The first is that the cut is not only in respect of litigator fees. Or litigator’s fees. It is in respect of lots of fees. Like the ridiculously low fee for police station visits. The second error is that it is an additional 8.75% on top of the cut already suffered. And is in advance of a further cut due in January. Oh and is also being introduced before the consolidation has taken place that the Government recognises has to take place to avoid total market failure. 

But the important thing is the vote is asking you to support the action taken by solicitors up and down the country as of today. The same battle we fought recently. 

For many days now I have been giving the whole thing lots and lots of thought. Contrary to public opinion, I do think about these sort of things. And I am increasingly coming round to the view that I truly have an individual decision to make. The decision I make right now is irrespective of the view taken by my chambers, my Circuit or the CBA. It is not a protest.

When I did not attend court on the days of action I was not reported to the BSB by my instructing solicitor. When I participated in no returns, my instructing solicitors understood and were supportive. Furthermore I was really, really, really, REALLY (I think I may have enough emphasis now to get across the fact that I mean this) but I was REALLY pissed off when I thought that action was being undermined by people who took returns. 

And if I took a case that had a Representation Order after 1st July I would be exactly the person that I felt let me down so badly last time round. And, in all conscience, I cannot do that. 

So from now until the result of the CBA ballot is known, I am not available for new defence work with a Representation Order dated 1st July onwards. Until such time as we join with the protest I will not undermine the protest of my friends, colleagues and allies. If I miss out on a fortnight of new briefs, so be it. If others profit from my stance so be it. 

Once I started to think about it, the answer was obvious. I wonder how many agree with me? Perhaps you could comment below if you do. It’s not a ballot. More of an informal survey. But a survey that may reassure those who today took the first step in standing together in the same way the Bar did. 

Good luck. 

How Much!?!?

The Daily Mail online is outraged at the £350,000 in legal aid given to Mick and Mairead Philpott. Of course, this is not entirely correct. The Philpotts were not “given” £350,000 like some sort of lottery win. What they were given was a fair trial. What we, the public, got for that expense were safe convictions. Their victims, their children, got justice. 

The outrage is sparked by the heinous nature of their crime. They were responsible for killing six children, their own children. Their notoriety was heightened by their lifestyle which was somewhat unconvential. And involved extensive reliance on benefits. 

Imagine for a moment that they were innocent. That they had not committed this terrible crime. That they were innocent parents wrongly accused of murdering their own children. As they were at the outset of the trial. It was a trial process that determined they were responsible and needed to be severely punished. And before society reached the stage of punishing them they had to have a trial in which they were properly represented. So that, if they were innocent they would not be wrongly convicted. Money well spent. 

Some of the outrage centres on the fact that fatcat lawyers got some of this money. What an incredible surprise that this story appears at a time when the Government want to cut lawyers’ fees even further. 

For the nine week trial leading counsel were paid in the region of £57,000 each and junior counsel £26,000. Outrageous. The sort of sums the average hard working taxpayer dreams of taking home in a year, let alone trousering for just nine weeks work. 

The first thing that the article does not point out is that the fees are fixed. It is not what the lawyers have concocted as a bill. It is what the Government has set as a fixed payment. It also does not point out that the reason why two counsel represented each defendant was not decided by the lawyers or by the clients. The Philpotts did not demand a QC and a Junior. A Judge decided the case required this level of representation.

So let’s have a look at those fees. I suspect that the fees quoted include VAT, as they usually do when quoted in such stories. For the Junior this would mean the fee was in fact £21,600. But let’s work on the basis that £26,000 is right. The trial lasted for nine weeks. That is 45 days. That is £580 per day. 

£580 per day is a lot of money. However I imagine most members of the public would expect barristers to cost more than £580 per day. So let’s break that down a bit more. A working day can reasonably be expected to contain seven hours. In fact many at the Bar realise that a trial of this nature will invlove longer days than this. But let’s stick at seven hours a day. So that £580 per day equates to about £83 per hour. In London the miminum living wage is £9.15 per hour. So those barristers are coining it in. Not quite the £200 per hour Lord Faulks thinks they get paid but they are still squealing all the way to the publicly funded bank with their £83 per hour. 

Except that they are not. The £83 per hour is not a wage. It is not personal income. It is a payment to a business. A business with overheads and staff. So that hourly rate is far more like the charge out rates for other professions. So how does the £83 compare?

A quick stroll around the Internet provides some interesting comparisons. In 2002, the Health and Safety executive commissioned a report about the charge out rates of their various professionals in performing their duties. Not a single hourly rate dipped below £100. 

In 2010 the average hourly charge out rates for PR executives ranged from £185 for the partner to £98 for an account manager to £65 for the trainee. That’s £65 for a trainee. So the barrister representing someone on a murder charge is on an hourly charge out rate closer to that of the trainee PR employee. 

But let us look at a true comparable. In 2011 the average charge out rate for a solicitor in private practice of more than eight years experience was £217. The trainee in the solicitors’ office was charged out at £118. So the barrister on public funds is being paid less than the going rate. The taxpayer is getting a discount. 

And what of the QC? We can see the Silk was on a little over double that of the Junior. Based on the calculation above the Silks’ charge out rate is £180 per hour. So that compares with the £217 quoted for the more senior solicitor. However Silks are the best of the best. The top of the profession. Men and women with years of experience, combined with immeasurable talent. The sort of lawyers that would be the partners in the best law firms in the land had they chosen a different career path. The sort of lawyers who have an average charge out rate of £725 per hour. 

All of this is very interesting but I am spouting complete nonsense. All of my sums are based on the fee being paid just for the hours taken by the time the trial ran. It takes no account of other court appearances. No account of meeting with the client to discuss the case. No account of the hours and hours of out of court preparation. The real hourly rate for the Junior? Probably half of the £83. £41.50! (Which if the fees quoted do include VAT, is actually £34.50).

The average income, the actual wage, of an airline pilot is £44 per hour. 

So what is the junior barrister doing for this money? Playing their part in defending the innocent and convicting the guilty. Doing something which few have the necessary  blend of abilities to achieve. Putting in hours and hours of painstaking work. 

And just think what sort of things they have to bear witness to. The preparation of this case would not just have involved complex detail. It would not have involved just complicated expert evidence. It would have involved the sort of material most people will go through life without ever having to see. Dealing with a case involving the death of six children is hugely emotionally upsetting. If the reader of this is a non-lawyer I hope you never have to read a post-mortem report. Or see the photographs of the crime scene. The material that the defence lawyer will be exposed to in a case like this is the stuff of nightmares. No hourly rate compensates for that. 

And yet we do it. We do it as a necessary part of a fair society. We do it at an incredibly low cost to the Government. This is the scandal. This is the true story of Legal Aid. The story that the Daily Mail would never write. The story that means Gove’s announcement of the implementation of further cuts to even the £140 to spend all night at a police station is the real scandal. 

The journalist that wrote this piece and the Lord Chancellor who acts in futherance of such nonsense should hang their heads in shame. I hold my head high.