Looking back, there are many aspects of my years in practice about which, unlike the many legal topics David Wolchover and I have addressed in numerous publications, it might not have been appropriate to write until such time as doing so would not be to my disadvantage. For criticising my paymasters, the judiciary, my colleagues, solicitors, juries and others whilst I was still at the coalface might have come back to haunt me.
But now, within days of my retirement, I can afford to put my head above the parapet and take this welcome opportunity to get some things off my chest – based on my experience and what I have heard from others – in a way which I believe will strike welcome chords with many of my colleagues (but not to some). It has not, however, all been bad since there are several features of my time as a criminal advocate which I will look back on with satisfaction and happy memories. And I will miss my many friends.
So what of the judiciary? Judges are now much better trained and, as a class, more diverse than in 1974 when I started in practice. As to their user-friendliness, most are courteous, considerate of increasing demands and burdens placed on advocates and understanding of the pressures from which witnesses, defendants and others present in court are apt to suffer. There remain, though, a small number who run their courts in a way which involves unkindness and gives rise to unnecessary unhappiness, dissention, bad atmospheres and – whether justified or not – accusations of bullying. (Note that aggressive courtroom tendencies are not confined to judges, for some advocates occasionally hector the Bench as a forensic technique.)
Politeness and temperance cost nothing, bear fruit and lead to just and reliable outcomes. Contrarily, harsh tones, becoming too closely involved in the examination of witnesses through critical judicial questioning and aggressive treatment of court users is apt to lead to mistakes, often remedied by expensive proceedings in the Court of Appeal. The causes of such behaviour may be attributable to background, mindset or confidence issues. What troubles me is that there does not seem to be an effective system through which the few insightless offenders can be informally identified and gently reminded – perhaps via a quiet word from a resident judge – that a toning down of their reputational tendency towards hostility can bring dividends and, who knows, a happier life.
Working practices and solicitors
Long gone are the days when one could confidently expect that, subject to a conference with the lay client in a contested case, instructions would include most of what was needed to be known in order for the advocate to perform his task in court and that the great bulk of trial preparation would have been performed by an instructing solicitor – who was, and remains, paid for this task.
Courts’ and instructing solicitors’ expectations of the advocate have increased hugely – drafting all the necessary paperwork in compliance with the Criminal Procedure Rules and the opening note, defence statement and admissions, editing police interviews, composing skeleton arguments and frequently, even, drafting the client’s and witnesses’ proofs. Prosecution authorities, notably the Crown Prosecution Service – contact with which can often be a frustratingly hit and miss affair – frequently make demands comparable with those of defence solicitors. The ever-present threat of a wasted costs order – a comparatively recent innovation – further heightens the stress involved for the hard-pressed advocate preparing for trial.
Digital working and the electronic presentation of evidence, especially that relating to mobile phone and social media communications, has brought additional burdens, such that some of my older colleagues preferred to retire early to avoid the challenges involved in getting to grips with the technology.
Education and competence
Out of court hours – unremunerated in comparison with employed colleagues – one is now expected to comply with the requirements of the CPD scheme and attend mandatory training courses. In my view these achieve little for those who adopt a conscientious approach to their work since CPD obligations do not entail attendance at events comprising topical issues or those comprising learning from non-legal disciplines, particularly that relating to the workings of the human mind.
It is unfortunate that QASA never came into being, for this might have weeded out that small body of advocates whose abilities and performance in court can be sorely lacking. (I have never pretended to be perfect, I hasten to add.)
Composition of the legal profession
The legal profession is infinitely more diverse – as it should be – than it was 45 years ago. Possibly owing to disenchantment with her (short) life at the Bar, Margaret Thatcher saw to it that the higher courts were no longer the exclusive preserve of barristers and threw these open to our sister profession, albeit subject to a higher rights qualification. Whilst there is no logic in the argument that barristers make better advocates than solicitors – there are good and bad in each branch – this step has been shown to have its disadvantages, as exemplified in the tendency (usually driven by perceived financial advantage) of some solicitor advocates, whether (usually meanly) salaried or self-employed, being instructed in cases beyond their skill set and occasionally as juniors in cases where, if leading counsel was no longer able to continue through sickness, they would flounder.
Distribution of instructions and money from 'private' clients
Whereas many suspect this tendency it is impossible to prove that an advocate has been instructed for the ‘wrong’ reasons, ie because it is to the solicitors’ material gain that they or their chambers are. Whilst backhanders are forbidden for obvious reasons what is effectively fee-sharing between solicitor advocates and dual practice barristers who act as ‘consultants’ in that capacity is not. Such was the concern about underhand customs that Justice Secretary Michael Gove’s department published a paper drawing attention to these and making suggestions for their avoidance. It does not appear that his recommendations have had the desired effect.
For various reasons largely connected with fee levels the cab rank principle is under threat. Inadequate reward is but one factor; some, for example, continue to refuse defence instructions in rape cases whether or not consent is in issue.
"The government’s announcement on 12 June of some improvements to [fees] is a welcome sign that, at last, the pendulum might now be swinging back in the right direction."
The Code of Conduct requires that work performed by one barrister for another which is of money’s worth should be rewarded through an equable distribution of the fee. When I was a second month pupil in a prestigious set it was not the done thing to complain about not receiving a fee for one’s attendance at court in a case in which a tenant was instructed. From what I have gathered from today’s beginners little may have changed.
What is unavoidably anecdotal evidence suggests that privately paying clients can be at the mercy of those they employ to protect their interests – hence payments, in comparison to those made to the advocate, of what appear to be disproportionately enormous fees or those paid by convicted prisoners for the pursuance of hopeless appeals where evidence of any work done thereafter is slight.
The incidence of perverse jury verdicts, usually acquittals in the teeth of what both parties agree is overwhelming evidence, appears to be on the increase. Assuming this to be right, the causes are puzzling, at least in the absence of reliable research involving knowledge of actual jury deliberations, although off-the-record conversations with jury bailiffs suggests muddled-thinking amongst juries in retirement which ignore careful and comprehensible directions from the judge is not unusual. One clue may be provided by the extreme content of films and TV programmes concerning fictional cases which are, inevitably, seen by potential jurors, especially where the credits include mention of X QC as a programme consultant, thus giving the misleading impression that what is depicted on the screen is a reflection of what typically happens in real life.
A prospective pupil master told me that life at the criminal Bar involved being given a licence to print money. I never discovered whether that was true in 1974 and, with one notable exception when, in the same year that I defended an IRA bomber in one case and a mass rapist in another I enjoyed the benefit of the ‘red-cornered form’ fee determination scheme, have never been in a position to confirm the prediction from personal experience.
Within the last 20+ years, however, fee levels in publicly funded criminal cases have plummeted to what all agree are grossly inadequate levels. Successive amendments to the graduated fee scheme, for both prosecution and defence advocates, have resulted in what is in effect an approximately 25% cut from the original levels, inflation taken into account. The exchequer’s spend on the graduated fee scheme has fallen by 40% since 2010.
Litigators have had a comparatively easy ride, for they continue to be paid uplifts on an evidential page count basis, presumably on the (laughable) grounds that they are expected to read, digest and analyse each evidential page in order to present their instructions in a way which reduces unnecessary work for the advocate. The results of this are that some litigators appear to expend much more effort on seeking to maximise the page count than they do protecting the interests of their clients and that the fees paid to litigators are grossly in excess of those who often do the bulk of the work – the advocates. This may be attributable to the fact that whereas before the onset of the graduated fee scheme solicitors were reimbursed for items of work actually performed, litigators’ claims for fees under the scheme do not involve any audit of just deserts – they are paid without question of these.
The average annual gross income of a barrister working full time on legal aid rates is something in the region of £55,000, equating to about £37,000 after deduction of chambers rent and other expenses.
In stark contrast, salary levels for CPS crown junior advocates range from £50,000-85,000 and for – apparently greatly under-employed – Criminal Defence Service junior advocates from £50,000- 80,000. Since these figures are net of employer pension contributions and subsidised health insurance and take no account of six week holiday, maternity/paternity and sickness entitlement, the cost of training and office overhead and equipment, I would estimate the actual costs of employing a CPS or CDS advocate approximates to between £100,000 and £150,000 per annum.
The difficulty for the self-employed Bar is that their bargaining power is necessarily limited, strike action being subject to the requirements of the criminal law and disciplinary processes.
The message from the above is clear. The government gets us very cheap. The good will and commitment of members of the independent criminal Bar has been exploited for too long. It is time for a meaningful change. The government’s announcement on 12 June of some improvements to CPS fees, the promise of (perhaps) more to come and yet another re-working of defence fees is a welcome sign that, at last, the pendulum might now be swinging back in the right direction.
Anthony Heaton-Armstrong practised at the criminal Bar for 45 years.
Some of my greatest adventures: An evidence gathering trip in a rape case to the mountains of Malawi and in South Africa (expenses reimbursed and remuneration paid thanks to the order of the trial judge). My attendance as an observer on behalf of the International Commission of Jurists in cases in Israel and Sri Lanka.
My heroes – great people in the criminal justice system: Tom Bingham – the epitome of the perfect judge, Gisli Gudjonsson – pioneer in the field of false confession, David Ormerod – academic criminal lawyer par excellence, Brenda Hale – champion of diversity.
Principal developments in the criminal law: Most of these have been, at least in principle, for the better – hence the disclosure provisions of the Criminal Procedure and Criminal Evidence Act, the protections afforded to suspects by its Codes of Practice and mandatory tape-recording of interviews, the facilities allowed to vulnerable witnesses by the Youth Justice and Criminal Evidence Act, the hearsay and bad character arrangements in the Criminal Justice Act 2003, POCA’s confiscation regime and the House of Lords decision which ended the bar on prosecutions for marital rape. My one regret is the courts’ failure to adequately acknowledge the potential for complainants to become confused between what they have dreamt or imagined and real events.
Sentencing and the state of the prisons: The sentencing landscape has been revolutionised by the creation and work of the Sentencing Council. Unsurprisingly, this has played its part in a massive increase in the prison population – more than double what it was in 1974. Life in prison has co-terminously changed, violence, drugs and consequent disorder having reduced the opportunities for any meaningful rehabilitation. The effects of austerity take time to cause harm.