This has been a mammoth year for Chris Henley QC. Whether you’re a supporter, critic or admirer, it is likely that we can all agree that leading the criminal Bar at this time of particular challenge has been a formidable mission.
I am expecting to meet someone austere and forbidding – 30 years’ call, silk in 2015, Criminal Bar Association (CBA) Vice Chair in 2017, and its Chair in 2018 – but the reality is a quietly spoken man who, it emerges, is a fan of unexpected live music; from the indie-rock of New York City’s Vampire Weekend to East London collective, the Hackney Colliery Band.
It speaks volumes that he suggests we meet for our interview in the café at Curzon Victoria, of which he is a member, and arrives by bicycle and somewhat wind-ruffled after a meeting at the Ministry of Justice.
Yet behind the affable and rather boyish exterior is a man who is very much aware that the criminal Bar is perched precariously on a precipice and that the steps he has taken as CBA Chair will very much determine not only his own legacy but that of the entire criminal Bar.
From a very early age Chris was ‘arguing, challenging, testing – being on the side of the underdog I suppose’ and wanting to ‘make things a little better’. At primary school he observed how some of the pupils from the local children’s home had had ‘really, really hard starts in life’ and how they were treated made him ‘alive to a sense of injustice’.
When he started out as a barrister back in 1989 he remembers the criminal Bar as being ‘smaller, more supportive’ but also ‘probably more hierarchical and less reflective of society’ in terms of women and practitioners from a black, Asian and minority ethnic background. ‘We’ve moved on a lot since then but it still needs to be confronted much more – it’s important that this is in the forefront of people’s minds,’ he says.
As a brother to two sisters and father to two daughters, the issues that impact negatively on women are close to his heart. He also wants to see an honest and annual national race-based audit of senior judiciary and more action taken to encourage diversity including social mobility at the Bar: ‘Everyone talks about wanting a more diverse profession but it’s about doing to effect change.’
Whether the pool is being replenished by juniors is a real concern – ‘we are at a real stage of crisis’ –and he worries that we might be at risk of going into reverse, which would have far-reaching and negative consequences.
‘It worries me that people come [to the profession] with so much enthusiasm and idealism, having stacked up substantial debt and ignoring the many, many people along the way who said “don’t go to the criminal Bar”. And a few years later, they look ahead and see colleagues in their 40s on the verge of bankruptcy and all the signs of wear and tear…
‘Our criminal justice system was once something to aspire to internationally and it is being tarnished by years of cuts and under-funding, and the reliability of verdicts [undermined] as a result of those cuts.
‘If cases are not effectively prosecuted and defended with sufficient skill by bright, committed people, once we compromise those standards, it’s very bad news for the health and cohesion of society.’
One of the things Chris has learned over the years in trials of young people is that ‘families watch you’. ‘They may be heartbroken at the outcome but they will at least know that their child was tried within a fair system. People give back what they’re given by society. We have to make sure that we are there to defend them; and that we are respected for that.’
A natural segue to the mandate for the ‘day of action’ on 1 July, secured just a few months back from the CBA membership in the ongoing protest on fee levels. A fortnight before this was due to take place, agreement was reached in negotiations between the government, CBA, Bar Council and Crown Prosecution Service and a new pay offer was put to its 3,000 members. At the time, Chris wrote that the final voting figures (60.72% in favour of accepting the deal and calling off the walkout; 39.28% against) were the ‘perfect expression of where we are as a profession; the proportions reflecting the CBA’s head and its heart’. But what does the result say about a divided membership?
‘This was a head and heart moment,’ he says. ‘The numbers reflected the mixture of feelings many of us had. I think most of us were conflicted, including me, but balancing everything, I believed – and still do – that we were right to take the offer.’ The offer came after months of building pressure and ‘transforms things for prosecutors who had had nothing for 20 years’. Defence fees too will see ‘significant rises in the right places’.
And the split vote ‘makes it clear that if there is a failure to deliver fully then have no doubt we will be taking action’.
Was it a straight split between passionate youngsters and pragmatic elders? ‘No, there was a majority in favour of suspending the action at all levels of call, 0-10 years, 10-20 years and 20 years+, so the vote recognised the fact that this was a positive outcome for all of us. But of course there is a sizeable minority in each call bracket who remain very unhappy.’
"I hope I have helped to change the narrative about criminal barristers, and to shift the centre of gravity on some important issues."
How did he keep his drive throughout the negotiations which, I suggest, must have been divided, uphill, fraught and frustrating?
‘I was sure and determined we would get there,’ Chris tells me. ‘I had a bottom line that I was not going to compromise on and that was important. Not everyone was convinced that the CBA’s strategy was the right one. Some thought it premature, too aggressive and unlikely to succeed. At times it was a bit lonely but I had a great team working with me and they never wavered.
‘We undoubtedly won the PR battle; we had a strong consistent narrative in the Monday Message and beyond, and we were always ready to take the profession out if it became necessary. I believed in what we were doing; the support of the profession was energising so it wasn’t hard to stay positive.’
Many were vocal in their disappointment at calling off the day of action, so I ask how, as he hands over the baton to Caroline Goodwin QC (Chair) and James Mulholland QC (Vice Chair) in September, do the next leaders keep the criminal Bar engaged and united as steps are taken towards implementation of the offer and the pledged review?
‘I receive many, many more supportive messages than negative. Most express their appreciation directly but quietly.’ A few took to Twitter, to express their frustration. ‘We directly messaged most of them asking for detailed solutions. I want people who disagree to get involved.’
Chris will remain part of the negotiating team until the new fees are delivered. ‘We have approached this as a team so I don’t think continuity will be a problem. The criminal Bar is more engaged than ever before; we need to stay cohesive and focused on sorting out the problems which threaten our collective future. Our collective action – or the threat of it – has forced three increases to fees in less than 18 months, after years of cuts, which is a real achievement.’
Will the new Lord Chancellor upset the agreement at all? Chris is ‘relieved and positive’ about Robert Buckland QC MP’s appointment. ‘He was previously Solicitor-General and so very close to what has been going on. As a former practising barrister he knows exactly how serious the crisis is.’
It’s no surprise that most publicly funded criminal barristers are finding it a real struggle financially and, he says, over the last 20 years have become ‘decoupled’ from the rest of the Bar.
A while back he put a few common work scenarios to a couple of commercial barrister friends and asked what they thought criminal barristers might be paid for them. ‘One was out by 1,500% and the other by 15,000%. I wrote about it in a Monday Message in March. The disparities in fee levels between publicly funded and private work are shocking. Prosecuting or defending in criminal trials at all levels should be properly remunerated. We need to attract the brightest from all backgrounds, and to retain them. It has to be a viable career for those without family money. The judges of the future must come from a diverse pool, reflecting society, if they are to have the public’s trust.’
He has long thought that the big commercial and chancery sets should ‘contribute maybe 0.5% of their turnover to a social mobility fund to support much greater social diversity at the Bar. This is needed now more than ever.’
Defence and prosecution fees have obviously occupied a great deal of Chris’ energy and focus over the last 12 months, but he has also spoken out strongly on prejudice, working conditions and wellbeing, which all tie in with the issue of fees and build of course on Sarah Vine’s impressive work as the CBA’s first wellbeing director. How does Chris summarise progress made? ‘One of the hardest issues facing barristers today,’ he says, is ‘the unsustainable demands placed on us; it is a constant strain. We have chosen a profession that requires incredible sacrifices.
‘During my time as Chair I have become completely convinced that nowhere near enough is being done on racism and sexism, right across the whole of the criminal justice system, not just at the Bar but certainly including it. There is such an entrenched reluctance to do much if anything about it and not enough priority is being given to the profession’s wellbeing from the senior criminal judiciary. It is causing the haemorrhaging of talented women from the profession.’
Is this deliberate? ‘It’s unlikely to be deliberate but it is certainly “knowing” – immediate action could be taken to address it.’
The CBA has been pressing for ‘some very modest things’, like an email protocol that respects personal and family life, and sensible sitting hours that allow barristers to plan their lives. ‘Sadly, there has been a refusal to engage in a meaningful way with these things. I have pressed these issues at the highest levels. We may have to take things into our own hands. Our working environment remains stubbornly, unreconstructedly male. I have offered space in the Monday Message to senior judges to explain why this is, but they have not been prepared to take up my offer. It is disappointing, particularly so when the President of the Family Division has been such a vocal champion on these things for the family Bar.’
Some of what Chris has written on these issues has not been well received. ‘But that is the point of writing about them, and I take it as a positive. This agenda is now out there. Things have to change.’
He has made a point of publicising individual experiences and travelling round court centres to meet with judges – but are they taking on board what he is saying?
‘Using real life experiences in people’s own words is so much more powerful than drily summarising the issues. “This was the impact on me personally” captures its essence like nothing else can. It has also encouraged others to come forward. I hope that the membership can see that the CBA has their backs and is not afraid call out bad behaviour and practices.’
Most judges, he says, are ‘brilliant’, but he hopes that the examples set out in the Monday Message cause ‘all of us to reflect on the impact of our behaviour on others’.
‘A bit of kindness costs nothing and is perfectly consistent with getting the job done, probably more so than being a bit of a thoughtless pig. I have found most crown court judges to be extremely friendly and supportive on these issues, when I have spoken to them, and about most counsel who appear in front of them. They do know how hard we all have to work, to keep things going, and do appreciate it. The cuts and closures have demoralised them too.’
Flexible operating hours (FOH) have been thankfully seen off in the criminal courts. What are Chris’ views on virtual justice, specifically defendants appearing via live link? Are there other worrying trends for the CJS?
‘I fear many of these “innovations” have precious little to do with improving access to justice or with its quality. They are all about driving down costs. We need to be forever vigilant about what is really driving the changes. Justice can’t be done on the cheap. Research confirms what is instinctively obvious, that important decisions are different if justice is delivered via a screen. For example, bail is more likely to be denied if a defendant appears via videolink. The criminal courts deal with the flaws, and subtleties of human behaviour, and often inarticulate, fearful, vulnerable or marginalised people. We should aim to treat people as we ourselves would want to be treated. Every case is different, and every case matters. You can’t get under its skin without skilful advocates on both sides, a humane process and sufficient time. FOH were all about sweating the court assets, and would have been rigid and hostile to family life rather than ‘flexible’. The pilots a few years ago proved how inefficient they would have been.’
Amongst Chris’ many achievements has been to show the criminal Bar’s human face to the public – which has helped sway public support and shift the stereotype away from fat cat legal aid lawyers.
‘I hope I have helped to change the narrative about criminal barristers, and to shift the centre of gravity on some important issues. We have been receiving much more sympathetic press coverage and are taken seriously as an organisation by decision-makers, who we now meet very regularly. I have wanted junior juniors to feel that they are being listened to, prosecutors to be treated with more respect and to be paid better, and to try to do something about how women are treated at the criminal Bar.’
Has Chris enjoyed the experience? ‘I don’t particularly like the formal stuff; I prefer the thinking, discussing and doing. Over the year I think I found my voice, if that doesn’t sound too pretentious. I have become more confident as time has passed and had a reasonably clear idea of what I wanted to do. I have loved the platform the Monday Message provides and have tried to make the most of it. I had a great time at the Family Law Bar Association and Women in Criminal Law dinners; they were such positive, happy events. I have also got to know some brilliant but ridiculously modest people who might even have become friends. The Bar is a wonderful place to be.’
Chris has certainly infused the Monday Message with his own distinct character. ‘I have tried to make them more than a series of dry announcements, and signing off with poetry or book recommendations seems to work.’
He tells me that he used to keep quotations, record thoughts and write ‘terrible poems’ in little notebooks when he was a teenager; ‘usually self-indulgent rubbish, so I haven’t changed much’. The book recommendations started ‘almost by accident but went down well so we’ve done it a few times’. Chris’ mother has always loved poetry so he heard a fair amount as a child, but someone else more recent to his life has ‘provided the inspiration over the last few months’.
‘The value of taking a moment as often as possible to go elsewhere in your head cannot be overestimated. Creating different spaces is what life should be about [and] poems are the perfect (and easiest) way of doing this. Looking through different eyes is fundamental to living an interesting life.
‘People I like like the poems and those who don’t like them are probably the ones who need them most,’ he adds.
He is reluctant to set out his hopes for how people might remember his tenure, preferring others to come to their own views in due course. What he does say is this: ‘I’d like the work I’m doing to be seen as a moment of change; maybe the point when the tide started to turn.’ Perhaps, at this time where it feels like the entire future of the criminal Bar is at breaking point, that is the greatest ideal.
As we leave the Curzon, I can’t resist asking Chris to pick his ‘legacy’ lines, as he comes to the end of term, and he gamely responds with some lines from Byron’s Childe Harold’s Pilgrimage:
‘My task is done, my song hath ceased, my theme
Has died into an echo; it is fit
The spell should break of this protracted dream.
The torch shall be extinguish’d which hath lit
My midnight lamp – and what is writ is writ.’
Aadhithya Anbahan has a housing and regulatory practice at St Ives Chambers appearing in the High Court, circuit courts, district courts and magistrates’ courts.