Hastening the Death of the Criminal Bar

by Ray_North on February 19, 2013

imagesI declare my interest in this topic from the outset: the death of the Criminal Bar, ain’t good for me. I also apologise if this piece becomes boringly technical, I’ll try to make it as entertaining as I can.

The other day in the Crown Court I happened to hear a wonderful speech in mitigation. In a fairly horrific case of Causing Death By Dangerous Driving (always the worst cases, because the victim is almost always entirely innocent, their family are almost always understandably bitter, and the offender is usually someone with little criminal experience who has made a massive mistake, as opposed to committing a crime with malicious intent) – in this instance, the Court was packed with both the family of deceased, who wanted to sting up the person in the dock, and the family of the defendant who wanted the Court to know that even though overtaking on a blind bend was wrong, at the age of 21 it was an act of folly that he would regret for the rest of his life.

To make matters more challenging the presiding judge was, shall we say, of the tricky variety.

It is the type of case that calls for sensitivity and great skill – because the advocate must articulate the remorse of their client, bring out all the matters that properly mitigate the offence and invite the Court to consider a sentence which at least half the people in the room will think is entirely inappropriate given the gravity of their own loss. It is a massive challenge to get this right – it’s a bit like walking a tightrope, if you make a crap point, you will lose any sympathy the Court might have, if you ham it up too much, you will lose any sympathy the Court might have, if you get the law wrong or the guidelines wrong – you look stupid.

It is not a skill that is learned in Barrister School (not the most rigorous of courses actually), but is acquired over years, by watching others do it, and by doing it yourself. This particular barrister got it absolutely spot on – and though they did not secure a spectacularly brilliant sentence for their client (that is not always the point) they assisted in the process of ensuring that everything that could possibly be said on behalf of a person who was about to have their liberty taken away, was said with skill and force and sensitivity. No one in that Court room was left feeling that justice within the law as it stands had not been done. And that is important for all of us.

Why do I make reference to this?

Well, any of us could, at some point in our lives find ourselves in a Crown Court – we could be wrongly accused of a crime and want someone to defend us; we could have made a stupid mistake in a car or in a pub; or alternatively any one of us could end up as the victim of a crime – and again we would want the person prosecuting to know what they were doing.

Sadly, successive government’s have been hell-bent upon killing off the Criminal Bar (and the Family Bar for that matter) – and barristers are an easy target, the public perception is of wealth, pomposity and self-importance, and maybe that was once true, but it isn’t any more.

In the last six or seven years, Barristers practising at the publicly funded bar have found their work diminishing due to the influx of Higher Rights Solicitors – these are solicitors who obtain the right to conduct cases in the Crown Court – now, some of them are very good, but many of them struggle because they don’t have the same experience as their training and their work has been different – most barrister’s wouldn’t have a clue what to do in a Police Station, because they haven’t received that training. Indeed most Higher Rights Advocates, don’t actually want to be conducting cases in the Crown Court, but, the changes in legal aid has meant that it is financial important for them to do so, and as such their firms put pressure on them to don their gowns and wigs and get on their feet.

The result has been a massive number of advocates chasing less work for less money – as such many very able barristers have either stopped doing crime or left the bar. This has led to a significant diminution of the quality of criminal practitioners. In short, if you are accused of a crime or the victim of a crime, then the type of representation you receive may well be inferior to that you could have expected a few years ago. And that cannot, surely, be a good thing.

But, it gets worse for the Bar. The Bar Council made representations to the Justice Department saying, look, the standard of advocacy is getting worse, and they sent some people to various Crown Courts, spoke to a few Judges and concluded that there was something in what we were saying – so they decided to set up a quality assurance scheme, called QASA for short. Initially it was decided that all advocates (barristers and solicitors) would be assessed by a panel of judges and given a grade (sorry this is the boring technical bit) 1-4: if you were a 1 you would only be allowed in the Magistrates Court, if you were a 4 you could defend a murderer sort of thing. We at the Bar were pretty much happy with this. But, predictably, solicitors weren’t – the Law Society argued that it discriminated against solicitors because they wouldn’t have the experience to obtain good grades – which is precisely the point of a quality assurance scheme.

Sadly, the government listened to the Law Society and has changed QASA so that now Barristers will be assessed by a panel of judges (a really daunting prospect in itself actually), but solicitors will be able to obtain their grade by paying a couple of grand to go on a two day course (not nearly as onerous you might think) – the result will be that solicitors will now have the same grades as barristers, be able to do the same work, but without having obtained the expertise, skill and instinct that comes with spending years in front of judges and circuit judges, cross-examining witnesses and dealing with complicated evidence in serious cases.

It will be the final nail in the coffin of the Criminal Bar. After all, what will be the point, if you are a young lawyer, in becoming a criminal barrister it will be much easier to get work and make a living if you are solicitor advocate. Criminal Barristers will die out like giant Galapagos tortoises and once they’re gone, they won’t come back.

At the moment, the Bar is opposing the QASA scheme, but, with an absence of public sympathy and a poor record of fighting its own corner (doctors, nurses, firemen and teachers wouldn’t stand for this), the chances of the Bar winning a fight with the government are slim – speeches will be made at meetings, strident words will be uttered, but then the government will almost certainly get its way and death of the criminal bar, an important institution, will be one step closer.

{ 5 comments… read them below or add one }

Mike Killingworth February 19, 2013 at 5:36 pm

Remind me, Ray, how Planet Earth is worse off for the death of the Galapagos tortoise. Ah, I thought so.

Are you seriously saying that if you or I were to be accused of a serious criminal offence, we wouldn’t get a fair trial in a country that didn’t divide its legal profession down the middle and demand that anyone arrested for a serious offence hired at least one of each?

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George_East February 19, 2013 at 5:57 pm

Mike, I don’t have any direct interest in the criminal bar, though I do have an interest in the wider Bar. The changes outlined by Ray do not particularly affect me or my practice.

The point though is not the existence of a split profession or the ‘doubling up’ about which you speak. There are some good arguments either way on a merged profession (and for most purposes the distinction has theoretically disappeared anyway). The point though is that experienced and skilled advocates should be doing the advocacy. What is instead happening in areas of the law funded primarily by the public purse is a race to the bottom, driven solely by funding.

By the very nature of the Criminal Bar (it being composed after all of those who spend virtually their whole professional life in Court), most of the best and experienced advocates are found there. There are plenty of good solicitor advocates, but most of the best are those who (like the Criminal Bar) specialise in advocacy. Good solicitor advocates equally need those who specialise in case preparation and evidece gathering, to support them. The model thus becomes the same – specialist trial lawyers, whether in a law firm or at the independent bar and other lawyers. It is the same throughout the common law world, whether in single tier systems like the US (with its Bar Associations for Trial Lawyers and its admission to state bars in order to achieve audiecne rights) or in split systems like our own or Ireland’s. Indeed the English system is often cheaper because of the historic way in which barristers have been paid (ie fixed brief fees) rather than on hourly rates (in 6 minute units) as with solicitors.

The real risk with funding cuts is that as a result the system cannot support specialist advocates at all (whatever label they go under). The consequence then will be more miscarriages of justice and more delays.

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Ray North February 19, 2013 at 7:05 pm

Mike, I don’t think I say you wouldn’t get a fair trial if you were not able to secure the services of a solicitor and then a barrister – the point I make (and George makes it as well), is that if you are accused of a serious crime, you want to be represented by someone who has the skill and experience to represent you properly, after all, your liberty may be at stake – the way in which the cuts and changes are being implemented at the moment has led to a system where firms of solicitors are being forced into using their own in-house lawyers to conduct serious crown court trials, and, with the best will in the world, the standard of their advocacy isn’t as good, whilst many good young barristers aren’t gaining the experience they need to progress – as such the quality of the criminal barristers of the next generation is going to have become worse – which ever way you look at it, the standard of advocacy in the Crown Courts has diminished, and that is the problem.
A full and proper merging of the professions would in some ways be a better alternative to what we have at the moment, which is a sort of slow strangulation of the Criminal bar.

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Mike Killingworth February 20, 2013 at 7:28 am

Thank you both for your replies. I suspect there are two issues here: a “single tier” versus a “two tier” system and more specifically the failure of the profession over the years to convince the laity of the merit of our present arrangement (part of a wider image problem for the profession, of course). Perhaps it is time to cut your losses and go for single tier.

We are perhaps fortunate that the Government has not bitten the bullet and simply abolished Legal Aid altogether. There are plenty of authoritarians out there who regard every acquittal as an attack on the police.

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George_East February 20, 2013 at 9:48 am

I think the ‘two tier’ issue is (mostly) a red herring. As I say however you arrange your legal system, the division in roles will exist. Having said that I suspect that the changes in the way in which publicly funded work is funded (both in criminal and family cases) will result in a single tier system by default over time. The current structure is far more likely to survive for private paying work, not least because, on the whole, it suits solicitors to ‘out source’ the advocacy.

The real issue is quality.

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