The payment system of legal aid fees to criminal advocates is not fit for purpose. I want to see the reform of the Advocates’ Graduated Fee Scheme and its counterpart, the introduction of defence advocacy panels. Payment should be based on the complexity and serious work that we do, not as now, measured by the number of pages in the brief. There needs to be an upward gradient, so that beginners and returners (typically after starting families) have a prospect of moving upwards in their careers. There also needs to be a credible scheme for ensuring that advocates of only appropriately high quality are permitted to do defence work within bands of seriousness – no more stand-ins for juniors in two-counsel cases, and no more use of the underqualified in the most serious work.
The reason I want to see these reforms put into effect is that I believe a thriving criminal Bar of independent advocates, beholden to no one and loyal only to their clients and the court, is essential for the proper conduct of criminal law and justice. The profession is in danger of withering away when the fees and career prospects for the young are so limited. There’s much else besides, including participation in the training of the profession in the new disciplines of handling vulnerable people in the system; helping to identify and weed out corrupt practices; keeping the public informed about the good work that we do for them and dispelling myths.
Has the CBA been too combative in the past?
There was a need for a robust stance as there have been periods when the criminal Bar has been under attack – almost always unfair attack. There have been times when a degree of militancy was needed to make the public realise that we were being badly mucked about. Some people think we are not combative enough. My view is that we are a profession of persuaders and communicators, and our tools are language and reasoned argument. In court aggression is almost always unhelpful. Militancy is a last resort, but a powerful one when circumstances demand it.
Is the Digital Case System (DCS) a good thing?
I have been paperless for two years – I scan everything and work from a laptop. Gone are the days of lugging boxes of broken-backed ring binders up and down the country. The DCS is obviously a good idea, and early glitches are being ironed out. However, it’s a mistake to think that humans are needed less because there’s no paper. The DCS can’t make the prison van arrive on time, or provide enough staff to make the CPS work to full efficiency, or provide fees that an expert witness is prepared to work for.
Talking of modernising the Criminal Justice System, is it time we abandoned the wig and gown?
If we were designing court dress from scratch we would not use clothes that began as mourning robes for Charles II and horsehair wigs. But we aren’t. The dress is a marker of roles and of the proper solemnity of crown court proceedings. It also masks age and gender differences, and depersonalises the wearers, so that the court pays attention to what they are saying rather than what they look like. On balance I think they are worth keeping.
So wigs and gowns stay. What about warned lists? Is it time they were consigned to the listing room bin?
Yes. They are a menace. They make diary planning for work and life far too difficult for all concerned. They are disappearing gradually, but their demise cannot come soon enough.
Should the Lord Chancellor be a lawyer?
Yes and no. Before the Constitutional Reform Act 2005 only lawyers were appointed. Now, a person can become Lord Chancellor if they appear to the Prime Minister to be ‘qualified by experience’, but the ‘experience’ doesn’t have to be legal: it can be ‘other experience that the Prime Minister considers relevant’.
Better a competent non-lawyer who will succeed in upholding judicial independence and the rule of law, as the Act demands, than a lawyer who is interested in neither. Lawyers can be terrible administrators. The post-2005 appointees have been a mixed bag of lawyers and non-lawyers, and some have done a better job than others. The post has always been a political one. My forebear, John ‘Black Jack’ FitzGibbon, was Lord Chancellor of Ireland in the 1790s and pushed through the Act of Union. He was so hated that when he died the Dublin crowd pelted his cortege with dead cats. He was the last lawyer in the family before me. I have no political ambitions.
Recent statistics on female judicial appointments are encouraging. What can the profession do, practically, to keep improving gender equality?
Ensure that the career structures enable women (and men with childcare responsibilities) to move freely in and out of their careers without financial or other disincentives.
What do you make of the CPS guidance on speaking to witnesses, including telling them about the issues in the case?
It is essential for witnesses to be treated with courtesy and consideration, and to be familiarised with the alien world into which they have been brought. But I worry about the routine disclosure of the defence case, especially where there are concerns about the honesty of witnesses, or their capacity to understand, or where there may be several defendants advancing different and inconsistent defences. I also worry about the time that this takes away from advocates’ more urgent tasks, and whether it is a good use of CPS staff, already severely cut back, who could also be more usefully employed.
What would be your advice to new barristers?
Make friends with colleagues – it’s still a friendly and collegiate profession. Share your troubles, don’t bottle them up. Treat every brief, however humble, as a precious jewel – you don’t know what it may lead to. Always give of your best, even at 9am in Aylesbury Crown Court. Don’t be intimidated. Don’t be afraid to ask colleagues obvious questions when you’re unsure of something. Read widely – not just law – and open your mind to new experiences and people, because the work of a criminal lawyer is chiefly about people in all their diverse glory.
What are the long-term challenges facing the criminal Bar?
The profession is dealing with the legacy of legal aid cuts which have hit recruitment and retention, especially of people from unmoneyed backgrounds and women. Without the reforms mentioned above, it still risks withering away. Morale is low. That seeps out and hurts performance and the quality of people’s work. It’s not just about the money – it’s the wider sense that as profession we are unfairly disrespected.
So, would you encourage students to join the criminal Bar?
Absolutely, it’s more than a wonderful career, it’s a vocation, but there are health warnings: a career at the Bar, like any form of freelance work, is insecure. It always has been. It’s not for people who feel entitled.
Francis FitzGibbon QC took over from Mark Fenhalls QC as head of the Criminal Bar Association in September 2016. Called in 1986, he took Silk in 2010 and has been involved in some of the most high-profile cases, including the Supreme Court joint-enterprise case of Jogee.
Contributor Rupert Jones, Citadel Chambers