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.

WHY I THINK WE SHOULD REJECT THIS DEAL by Simon Csoka QC

Whilst Simon and I disagree on the way forward I am more than happy to host this blog written by him. It is very important that everyone who is voting equips themselves with as much information and viewpoints as possible. The act of disagreeing is a healthy way to make a decision.

I am struggling to understand how anyone can see this deal as anything other than shameless divide and rule. I do not underestimate the immediate impact that the conditional increases from September will have on junior juniors who prosecute.

Any pragmatic strategy against us by the MOJ and Treasury is to determine what is the least costly way of defeating any disruption by the Bar. The CPS advocacy budget should inevitably always be less than the defence advocacy budget. Multihanded cases mean that there are more defence advocates per case. An extra refresher on short cases, appeals and interlocutory hearings make huge differences to junior juniors but are not particularly costly from a Treasury point of view. Paying properly for the prosecution of large cases would require massive investment. There have been no increases for over 20 years. In fact, there have been cuts. Inflation amounts to 73% since 1998: https://www.bankofengland.co.uk/monetary-policy/inflation/inflation-calculator . The reality is that to even to get back to the position in 1998, there would have to be a doubling, at least, of the CPS advocacy budget. I fail to see how taking this offer provides any prospect of that occurring. It will be a cold day in hell first.

Likewise, in relation to AGFS we are 73% down by inflation and actual fees are at best no more than half the remuneration in 1998. It would require an increase in the budget of at least 300% to restore current incomes to the level in 1998. Does anyone believe that there will be a 50% increase let alone a threefold one?

I say this in order to put into perspective how easily pleased we can be. It’s rather like a badly treated dog that is overjoyed when its abusive owner occasionally pats it on the head. At least a dog does not congratulate itself when its abusive owner pays it some attention.

There is no commitment in the joint CBA and MOJ press releases for there to be any extra investment. I fail to see why remuneration for unused material or PPE would amount to extra money as opposed to simply a redesign within the current budget. This applies largely to AGFS but there is no reason why the redesign of the CPS scheme would not follow the same premise with some illusory increases.

The justification provided for suspending action is that the offer to increase prosecution fees will be withdrawn. This is taken seriously by the CBA. If it is a genuine threat, then the same would apply in a few months time. The blackmail then would be along similar lines irrespective of whether it’s a modest increase to the defence or the prosecution. We would be played off against each other on each occasion. A credible threat by the Bar to stop working is being averted by a very modest spend. This is a superb model for the MOJ “going forward” to deal with any dispute. For us, it provides no realistic prospect of ever achieving any significant improvements.

I have not attended any of the meetings with the LAA or MOJ. Perhaps the CBA are right. I doubt it but I cannot be sure. But it is better to test our opponent now than get into an intractable position in 6 months time. The threat of “push it to the members or lose it” has been used for many years. Each time we have ended up with appalling fees. Each iteration of the new AGFS was presented by the MOJ to the Bar Council and Circuit Leaders on the basis that we will only make this offer if you push it for us. Each time the leaders said it was impossible to get more. Each time we got more by not doing what the leaders were being told to tell us to do. Scheme 11 is dreadful. If we had done what we were told originally, we would have got a scheme that was worse that scheme 10. That too, was pushed by the Bar Council and Circuit Leaders as an achievement. Ultimately, we believed scheme 11 was bad, we were told it was good, the CBA now accept it was bad having told us last year to vote for it.

It seems to me that the whole process now starts with an expression of bad faith. One the one hand an acceptance that prosecution fees are wholly inadequate and unfair but a refusal to increase them unless we do hereafter exactly what the MOJ propose. It demonstrates that the MOJ is motivated by pragmatism and by the Treasury. It is not governed by doing what is fair. Who would rationally believe otherwise? We only get near to what we want when it becomes cost effective. The reality of the collapse of the criminal justice would be very costly. We are not obliged to prop it up. We told them we would no longer do so with these derisory fees. Now we are saying we will continue to accept cases even though we have only been offered a fraction of what we asked for. The proposed amendments to the AGFS scheme were supposed to be a stop-gap. We are now told to give up without any commitment to the stop-gap, let alone a proper solution. The collapse of the criminal justice system is now no more than a remote prospect thanks to our acquiescence.

I fear that the real problem is that this shambles of an AGFS scheme was largely designed and then pushed by CBA and the Bar Council. We were told on multiple occasions to vote for it last year and the year before. We were told that the fee projections were scaremongering. This self-inflicted fee cut (which is still presented as a fee increase by the Bar Council) is preventing any effective representation in negotiations. It’s all too easy for the MOJ to claim (as they did last week) that they made further investment last year. I cannot believe that the advocacy spend is actually greater. We can only base it on our own experience. We can’t see the data. There needs to be some acceptance of the huge failure last year so that we can move forward.

I cannot have any faith in the MOJ when they have dictated that the CBA cannot disseminate contrary views to its members. Any deal that has to be pushed by the CBA on MOJ terms is not worth having.

The CBA now argue that the Government will be persuaded by November to make significant increases to AGFS. A year ago they claimed that Scheme 11 was the best we were going to get. Nothing has changed except a belief that this time it will be different. They now believe that we will do much better but do not explain why.

The only thing that changed was the threat of massive disruption. If we call the action off, then the threat will never again be taken seriously. It will have taken nothing more than loose change in Treasury terms to defeat a Bar that was united. Who is to say that the Bar could even be led out to battle again? We instinctively feel that we are being led into another capitulation just as we are winning. I think most of us are getting too cynical to be led out by any fighting talk after this. It’s action now or never.

SIMON CSOKA QC

The Mistake They Made

There are many that believe that making of a single offer in respect of CPS fees and AGFS is a tactical masterstroke by the MoJ or the Government, that this is a tactic of divide and conquer which we are fools to fall for.

I believe it may be the single biggest mistake “the Government” side of these negotiations have ever made.

Each time we have been involved in days of action and no returns up and down the country prosecution counsel have received very similar letters (an example of which is here) telling us that those briefed on behalf of the prosecution should not be involved in the proposed action as the complaint about AGFS is nothing to do with the CPS.

Can you see where I am going yet?

Joining the two issues together is the biggest mistake they could have made. The CBA have made it perfectly clear that the action will be suspended as a whole. That is the term stipulated by the Government. The CBA have also made it perfectly plain that, should the reviews not happen in a timely fashion or should the outcome of the reviews fail to produce new money to cure some of the ills of AGFS, then the action will return. And that, logically, should be all of the action. Defence and Prosecution briefs.

No matter what the outcome of the vote, the CPS have allowed their own argument to be torpedoed. What they have always sought to set apart, this offer has joined together. Rather then dividing us, this offer produces the unanswerable case that action in support of changes to the AGFS is action taken by the whole of the criminal Bar, no matter which side of the courtroom they are due to sit on.

I would also venture to suggest that it would be incumbent on those that prosecute to support those that defend should the decision be to accept the offer. That support is at its most crucial if it should come to us taking action again. I imagine it would be very difficult for the CPS to take back that which they have given by that point but the offer is a global one, if the Government renege on their promises of a speedier review or fail to set right that which is wrong they should face the chaos of both Prosecution and Defence action.

This need not divide us. It provided us with a stronger lever with which to apply pressure. It turbocharges the impact of no returns and days of action. And it was all the Government’s idea….

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.

Applications Open!

If you are reading this you probably know that there are three paid work placements on offer with myself, Nicholas Clarke QC and Chloe Ashley. Myself and Nick are at 9 St John Street in Manchester whilst Chloe practises at No5 in Birmingham. The remuneration is a bursary of £700 for the two weeks plus up to £300 towards your expenses. It is hoped that this will be more than just an extended mini-pupillage following people to court but will include marshalling and other experiences of life as a barrister.

This is the process by which all three placements will be selected. The initial application is by email and ten candidates will be selected for an interview by Skype/FaceTime. The ten on the shortlist will receive a signed copy of The Secret Barrister’s book and a copy of Rumpole of the Bailey.

I am afraid I am not going to be able to provide feedback to those unsuccessful and I am afraid only those invited for interview will be notified directly of the outcome. I will announce the names of the final ten on my blog and my Twitter account, so you will be able to check there. Once I know how many applications I am dealing with I will announce the date by which the successful candidates will be notified.

The initial stage will be an application by email to internship@9sjs.com. This email account will only be used for the purpose of this application and will be disabled once the shortlist is announced. Please only use this email address, do not contact my chambers as this is a personal arrangement and not something that my clerks or others at chambers have any role in organising.

The initial application should include the following details in the body of your email;

1. Full name
2. DOB (the placement is open to those who are 17 years or older on 31/07/19)
3. Postal address (if you are a student it may be best to use an address from which you can collect your post outside of term time)
4. Email address
5. Contact telephone number
6. Educational history (A-Level or equivalent onwards, just let me know what you studied and where, I don’t need grades)
7. Previous legal work experience
8. Please indicate which three of these areas you would like to have some experience of in the course of the placement Crime; Family; Employment; Civil PI; Civil Commercial.
9. Preferred location Manchester or Birmingham

None of that information will be used to decide to who is placed on the shortlist. Some of the information may become relevant at the next stage but will be explored at interview. All of that information should be provided in the body of the email. Then you need to attach a separate document to the email, either in Word, PDF or Pages format, which is a written piece by you which answers the question “Why you should be offered the placement”. The STRICT word count is 750 words. For the shortlist I will be looking at the reasons you give why it should be you AND the manner in which you seek to persuade me.

I am going to give you one or two hints and tips. This is not the X-Factor. I do not need to know the incredible journey you have been on. I want to be persuaded with reason, not with adjectives. I will take it as a given that all of you that have applied really, really want this opportunity! Stick to the word limit – concise arguments are key to the successful barrister.

My aim is to provide these placements to candidates with real potential for a career at the Bar but for whom work experience opportunities are limited.

The closing date for applications is 4pm on 17th June 2019. The dates of the placements are flexible to suit the candidates and the availability of the three of us supervising. I cannot thank Nick and Chloe enough for joining me in this enterprise. I also have to thank an anonymous individual who has provided the funding for the placement with Chloe. I also have to thank the Judges and solicitors who have assisted so far and Tim Collins, a legal recruitment consultant.

I look forward to reading your persuasive pieces of written advocacy. Good luck!

Work Experience

A little while ago I criticised a London chambers for the fact they were offering unpaid internships. I believe this to be totally unacceptable. Undoubtedly aspiring members of our profession would gain valuable experience from such an opportunity but I believe that people should be paid fairly for their work and I also believe that such an opportunity should not be dependent upon the individual’s ability to fund themselves. An unpaid internship gives someone with the money to afford to work for free an advantage over someone that does not have the same means.

An internship is more than just the shadowing type of work experience that a mini-pupillage brings. No matter how well meaning a chambers is in providing such an opportunity there will come a time when a task undertaken by the intern will be of some value to the organisation, whether it be taking a note in a conference or doing the photocopying. Yes, the intern may get the chance to see Miss Tenant doing a great cross-examination but that is not the same as paying someone for the fruits of their labour. If you want someone to do the photocopying, pay someone to do the photocopying. Any other arrangement is simply exploiting an uneven relationship. It is preying upon the desire of those seeking to get a foot in the door. It is wrong.

That is all well and good. It is very easy to be vocal on Twitter. Talking about wanting the Bar to be a diverse is as easy as saying you would like it if you could win the Lottery. Even telling an inspirational tale of your own progress through a comprehensive school education and a job in a bike shop, in the hope that others in the same position will see that it can be done, can only plant the seed. It does nothing to nurture the person coming after you.

And so, as I sent out another Tweet which explained why I was so critical of what someone else was doing, I thought about what I was going to achieve. And the answer was not very much. A few likes, a few retweets. It wasn’t even going to prompt the chambers in question to pay the next intern. So the question was – what could I do? Another talk at a school? Another blog about how my grandad was a roofer?

The answer was obvious. I had to put my money where my mouth is. Hence my offer of two weeks paid work experience. And here is more detail about what that will mean.

This year I will select someone to spend two weeks gaining an insight into life as a barrister. That is not just going to be two weeks of following me around, I want to give someone a wealth of work experience. I want to make sure that those two weeks have real value. So the two weeks will not be just spent with me telling stories of when I was brilliant in court or sitting there whilst I demonstrate that I am not so brilliant in court. I hope it will be much more than that.

Before getting into the detail of what will happen and how to apply, let’s deal with the most important issue. I will pay. For the two weeks spent with me I will pay the successful candidate £700 as a bursary. In addition I will also pay up to £300 for expenses arising out of the two weeks so that the offer is available to those who do not live in Manchester. I hope this means that those who are in a position where they would normally not be able to take a two week placement out of the necessity to work during that period will be able to apply for this placement.

I am a criminal Silk but this placement is not just for those who are interested in crime. As part of the application process candidates will be asked to identify three areas of law from a list of those that I will be able to provide experience of during the two weeks. The placement will be overseen by me but, with the kind assistance of some of my colleagues and friends in chambers, the successful candidate will have a wider experience than I can offer alone.

During the course of the placement I will undertake two sessions of advocacy training, one towards the beginning of the period and one towards the end. Tim Collins, a consultant in legal recruitment, has kindly offered to give the successful candidate a CV and interview clinic via Skype. I will then build on that session with a further discussion about applications to chambers. There will be a day spent in the clerks room, seeing how the administration of chambers works. Subject to their availability, I have also arranged that the successful candidate will spend a day marshalling with a Circuit Judge and will spend a day with a firm of criminal solicitors.

The placement is open to those aged 17 or over. There are no other requirements. Once I have selected the person to undertake the placement then we will find a convenient date (so it does not necessarily have to be over the summer).

The application process will open on 3rd June and will close at 4pm on 17th June. I will provide an email address from which those interested can obtain a relatively simple application form which will then be sent back to the same address. The applicants will also be asked to provide a 750 word explanation as to why they should be offered the placement. This will be the most significant factor in deciding which candidates make the shortlist. As well as content, the potential to communicate effectively will also be assessed.

Ten applicants will make it on to the shortlist (if there are at least ten applicants….). Those who make the shortlist will be interviewed via Skype by myself and one of my colleagues from Chambers.

From the ten we will be selecting two candidates. Yes, two. My fellow QC, Nicholas Clarke, head of the criminal team in chambers, has volunteered to replicate my offer. So I will be selecting one placement with me and also one with Nick (the details of his placement may differ from mine, it may not contain the same elements but will come with the same bursary, provided by Nick himself). I will put Nick and this second candidate in touch with each other so that they can sort out the details.

I am sorry that we are not able to offer all ten shortlisted candidates this opportunity. As a significant consolation, all ten shortlisted candidates will receive a copy of Rumpole of the Bailey and a personalised signed copy of the Secret Barrister’s book. Yep. That’s right. The Secret Barrister and their publisher, Pan Macmillan, have very kindly offered to supply personalised copies of the bestselling legal book of the decade to those who make the shortlist.

So watch this space. Make sure you are following me on Twitter @jaimerh354 or my blog, View From The North, to find out more about the application process, including the email address. Please do not contact my chambers about this process, this is something I am doing and organising on a personal level. All correspondence concerning it should be sent to the email address that I will advertise in due course.

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.

Autumn Days

As the first days of autumn come tumbling down and the optimism of summer is shaded by the gloom of an oncoming winter we are, yet again, responding to another consultation about the graduated fee scheme.

My first reaction was that I had been consulted previously. And my response was a robust, two fingered retort. I was instantly jaded that this process had to be the subject of a further consultation when it seemed to make more sense that we were simply provided with a new scheme, worked out with those that represent us.

At least the consultation process has, belatedly, allowed some further number crunching. And the proposed £15 million injection would actually be a £8 to 9 million injection if last year’s billing data was used. This has caused outrage. This has prompted some to suggest that the Bar have been totally had over.

I have to confess I don’t share that outrage. Not over that. The reality is that the case mix and the pages contained within those cases is only broadly predictable. In a year’s time we may do a retrospective comparison and find that the new money was in fact £17 million. Or £5 million. That is just the nature of the beast.

That is why I had this to say at the time of the last ballot:

“I make it crystal clear that what matters is not the figure of £12 million or 6.6% or 1%. It is what we can see we are getting paid for the case. And whether that is enough we cannot say until we see the new figures in the boxes. And if they are not right, I will be the first to say we reject them.”

So I wanted to see a consultation that showed lots of worked examples. Tables that showed what we got paid under a scheme that included PPE, what we get paid on the current scheme and what we will get paid with new money in the scheme. That is the only way the practitioner with a mortgage to pay, a family to feed and a life to lead can assess this material.

This consultation is not packaged in this way. And that concerns me. How are we to decide about these things in the abstract? It is the figures in the boxes which really matters, what we are going to get paid for the case. Until I am provided with this information then I am not going to respond positively to this consultation.

But this is not the source of outrage. But that is not to say I am not outraged.

When we were presented with this proposal we were told that things had to move quickly. We were told that the current scheme could not be delayed but that part of the reason to take this offer was to enable an October implementation. That was absolutely fundamental. We would take work remunerated inadequately for a short period of time as a gesture of goodwill, goodwill which we believed was being reciprocated. I have no doubt that this is what the Bar Leadership were being told.

And now there is no prospect of that happening. We are told that it is going to be December, at the earliest, before the new money comes into the scheme. My goodwill was a brown leaf dangling from a horse chestnut tree. It is now already compost. This is not acceptable. This delay undermines the whole process.

The message is simple. We start the ball rolling towards a resumption of “no returns”. The MoJ should be told that this is a consequence of yet another broken promise. And that our goodwill is going to have to be bought again. With less online consultations and more money.

New Judge, Old Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“I’m sorry?” the Judge responds.

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

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

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

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

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

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

“Call Colin Apse,” the Clerk announces.

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

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

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

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

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

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

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

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

“Come again?” asks the Judge.

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

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

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