An Existential Battle

If you work in probation you will be very familiar with the court process and almost certainly the legal profession in the shape of solicitors and barristers. Many of us with some service under our belts will be aware of significant changes in process over the years and in particular cuts in Legal Aid and court closures. 

Things have come to a head in recent weeks with barristers withdrawing their labour. Just as with probation, the press, public and politicians don't understand, or choose not to understand, what's going on and the truth of the situation.

This set of tweets from @edwardhenry1 yesterday sets things out in stark detail and we should all be concerned, not least because it will affect us all, and clients especially. (I have made adjustments to aid clarity).  

The Criminal Bar facing oblivion.

Max J L Hardy wrote perceptively that the public would get a distorted impression of our justice system because of the #WAGATHA trial. Criminal justice is in crisis. And @jimrobottom suggested the same for the mass of civil litigation.

The Tabloids don’t want to run this narrative. Clichés work. People, without wealth or financial resilience are far more likely to get dragged into a Criminal Court, a Family Court, or an Employment Tribunal.

Then, they’re not likely to encounter a ‘fat cat lawyer’ but a junior barrister and/or a high street solicitor, from a small to medium size practice. We’re not talking Baroness Shackleton or Lady Ward.

I’m not qualified to speak about family or employment but imagine that family law practitioners who do not deal with ‘Big Money’ cases are in the same position, or soon will be, as the criminal bar.

Advocates practising in crime are an odd bunch, but likeable. As a rule they like their clients, and care deeply about them. Strange as it may seem, some have been accused of caring for their clients more than their families.

It’s not hype, but reflects a brutally demanding job, which can prove to be obsessional. Like Captain Ahab pursuing Moby Dick, some advocates relentlessly chase after that tantalising fact, or issue that might turn a case. Holidays are sacrificed, as are children’s childhoods.

You are told, as I have been, that you aren’t present, even when you’re actually there, because your mind churns that case or question over & over.

You’d have to be mad to practise in crime. I tried, from 2004 onwards to discourage my pupils from continuing in it, and to transfer. Not one did. Well done btw @MaxJLHardy

My first pupil, the wonderful Jake Hallam QC, started in practice in 1998. I could see then that the GFS [Graduated Fee Scheme for legal aid] would impoverish criminal practitioners as so much was left unpaid. The rates then set never kept up with cost of living & if we aren’t 40% down from 1997 I’d be surprised.

I had more success dissuading my adult sons from following me into the Law. They saw, all too sadly, the toll it took on their childhood, their parents’ marriage & the precarious financial fortunes of a self employed individual or sole trader.

I adore my job, and have deep affection and genuine respect for my colleagues. Every pupil who disregarded my advice and went on to greatness at the Criminal Bar - and those few who sadly did not in spite of their courage, determination and flair, I deeply admire and love.

Because I know what it’s cost them. The price you have to pay whether you succeed or fail (& chance plays a part in that.) So when a Politician derides what we do, I don’t care. I know my value, & part of that is what I’m worth; & I know my colleagues’ treasured value too.

The destruction of a profession, of an Art that can be traced to the prophet Daniel, through the Graeco-Roman era to our own time is shameful. If politicians don’t want to preserve an Independent Bar, incompetence & corruption will follow. Who benefits?

Back to that odd bunch of advocates. They’ll include the brief, hot on detail with an eidetic neuro-diverse mastery of regulations, those who can recite the codes of practice, and those who can hyper focus to a microscopic degree. Then there are those who trust nothing

Not because they are conspiracy theorists, but because they’ve been told “nothing to disclose” too often when there is. Those who venerate Marx & those who espouse anarcho-libertarianism meet as one. It’s a broad church. The link? They believe in Justice & the Rule of Law.

That’s ultimately what compels them to defend, whatever the personal cost, to keep the stream pure, to hold the prosecution to account. A word here about prosecution counsel.

A very considerable proportion of Barristers prosecute & defend. That’s why the Independent Bar is of incalculable value. It’s not partisan. I no longer prosecute but I grew up in the preeminent prosecution set, renowned for its fairness.

Pros Counsel are atrociously paid, & not enough is said about it. You can prepare a case & not get paid if it’s tried at a time you can’t do. The Government’s long term strategy is a mystery. Public Defenders & Pros cost tons more than the Bar. They’re just happy exploiting us.

But it will eventually come to an end. Even altruists will be deterred. The Criminal Bar shall die. No mistake. Then what will those in the other branches of the Bar say? What a pity? Such a shame? It’s time for the Inns and the whole Bar to come to the aid of CBA [Criminal Bar Association].

The Bar Council, paradoxically, might have put on a better show, but there are always those dependable in a tight corner, & others who (despite the best of intentions) are not.
@Ed_LeveyQC has always supported the Criminal Bar & @seanjonesqc is a legend. But we need more.

This is an existential battle. If we are really one Bar, kind words about how much the Criminal Bar is admired, with wistful regrets intimated of envying what we do, will be pure guff unless the whole Bar bends its efforts & potent influence on our behalf.

The leaders of the SBAs [Specialist Bar Associations] and others of titanic reputation & standing in other fields might like to reflect on what we’re all about to lose.

Edward Henry QC