On taking silk

© Jenny Matthews / Alamy Stock Photo
The plumage and ceremony delights some and appals others, yet its professional significance is inescapable; Chris Henley QC (successful in round three) riffs on the award and how to get it

‘Very silky.’ ‘Cut out for silk.’ ‘Clearly silk material.’ ‘Would look good in silk.’ ‘Would be very comfortable in silk.’ Why are we so obsessed with this particular fabric? All very weird to outsiders but to legal anoraks, silk-lined of course, these are the words we daydream might one day be applied to us. The plumage and ceremony around ‘taking silk’ delights some, and appals others, but its professional significance is inescapable. You enter a new world; daunting, exciting, challenging. It can be like starting all over again. The work will be more demanding, the expectation on you higher, the responsibility even more heavy. Your earnings might take a hit for a time as you find your feet and build up your practice. The QC appointments system may have been modernised, which inevitably means epic form filling, demonstrating excellence in all the ‘competencies’, and excruciating conversations with judges and senior colleagues who can’t remember the first thing about us, but the allure of the letters QC remains as powerful and potent as ever.

On 16 January this year the names of the 114 most recent successful applicants were published. It’s like your very own moon landing moment. You will remember where you were. I was in the bath and couldn’t open the attachment. For those planning to apply for the 2020 ‘competition’, which opened on 17 February and runs until the end of March, I would strongly advise starting on the form as soon as you possibly can because filling it out takes absolutely forever. The first time I applied I completely underestimated how much time it would take and I failed to complete the final few sections. I still made a junior clerk sprint up Chancery Lane with the requisite hard copies to get it lodged just before the 5.00pm deadline but, unsurprisingly, that application was unsuccessful. Time management competency was a fail.

Out with the old, in with the new

Since the new system was introduced in 2005/6, 1,553 appointments to QC have been made. Attitudes and outcomes have changed significantly over time. Far more applications were made under the old system, and many fewer were successful. A review of the statistics for the past nine years of the old system, compared to the new one, makes for interesting comparisons. In 1997 there were 500 applications, with 68 successful (13.6%); in 1998, 511 applications with 60 successful (11.7%); and 1999, 553 applications with 69 successful (12.5%). Compare this to 2017, 272 applications with 119 successful (43.8%); 2018, 240 applications with 108 successful (45%); and 2019, 258 applications with 114 successful (44%).

There must surely be a correlation between the high fees charged to apply under the new system (successful applicants are charged £4,800 plus VAT) and the fact that you could have a punt at no cost under the old one. The new system is required to pay for itself and it is the initial (£1,800) and success (£3,000) fees which largely fund it. Whilst I say this on the basis of no evidence, my guess would be that the halving of the number of applicants is explained by many fewer publicly funded practitioners applying, particularly in crime, dissuaded by the high cost of making an application and the collapse in the number of QC certificates being granted by senior judges.

The other notable, but depressing, statistic is that the number of applications from female practitioners has not increased that much over the past 25 years. The proportion of successful female applicants has increased very significantly when expressed as a percentage, but in terms of absolute numbers, during a period of rapid expansion of the Bar, the number of women deciding to apply for silk remains stubbornly low. In 2000 there were 53 applications from women, and in 2001 there were 51. In 2017, 2018 and 2019 the numbers of female applicants were 50, 55 and 52 respectively. Routinely over the past ten years more than four times the number of men apply for silk compared to women, and in two of these years the ratio has been more than five to one. The days when only one BAME (Black, Asian or Minority Ethnic) applicant was successful (1995, 1996, 1997) have thankfully been left behind but it’s hard to feel proud or even comfortable that the numbers of both BAME applicants and successful ones are still very low (30 and 13 in 2018, 42 and 22 in 2019). The Bar has to confront some difficult truths on both fronts. The world has changed and the Bar has failed sufficiently to do so. It remains too much a white male upper middle class club.

When I was a painfully earnest pupil I devoured books like Tony Gifford’s Where’s The Justice? which advocated wholesale reform of the justice system including calling for the abolition of the rank of silk. Other progressives, radicals and professional irritants like Michael Mansfield and Rock Tansey seemed permanently blocked by the establishment from getting the precious letters. One well known defence silk who has a reputation for being complicated with judges told me that it took him 12 applications before he was successful. In the end they all took silk and even Tony Gifford came round. More recently 11 members of Matrix Chambers, including several prominent silks, wrote an open letter to the Lord Chancellor calling for the silk system to be abolished. Their contention was that it was anti-competitive and operated against the public interest. At least one of the junior signatories went further and vowed never to apply to become a QC. Not many years later his name appeared on the new silks’ list. And fair enough, because it’s there and unavoidable, and of course he’s now flying. The suspension of the award of silk in 2003 by Lord Irvine (QC of course) provoked an outcry. Three years later, albeit with a radically overhauled application process for all future appointments, the advocacy badge of excellence was restored.

Campaign planning: starting early

Now a few tips from someone who didn’t do it properly the first couple of times I applied. First, treat it like a campaign. Read the application form now, whatever stage you are at. Go to the QCA website (qcappointments.org) and familiarise yourself with the ‘competency framework’. Do this two years, at least, prior to the date you think you might be ready to apply to become that new silk. Not in a self-regarding, pompous way. Be the best version of yourself. Reignite the passion and freshness you brought to the job when you were first on your feet. Shake off the different enthusiasm that can set in after 15 or so years at the job. Spend that extra half an hour polishing your submissions, refining your cross-examination. Be calm, be polite, be reasonable, be clear, think about what you are doing. If you need to be a little fiercer then do that. Believe in yourself.

I know it sounds obvious but how often does the nature of the job mean that precious thinking time gets horribly squeezed, written work gets submitted without a re-read in the morning, impatience with a judge or colleague causes a conversation or submission to fray? So much of what will make you stand out costs nothing. The most effective advocates know when to stay quiet, know when to stop, know which parts of a case matter, and consequently know when to make concessions. Judgment is hard to define or describe but we all know it when its in the room. Be that person.

You obviously need to be honest about your own abilities and the quality of your practice, but don’t be shy. Talk to your clerks, talk to your Head of Chambers, and any silks you know or come across. Overwhelmingly, people will be supportive and generous with their time and advice, not least because it will give them an opportunity to share/inflict their own war stories. Build a team invested in your success. Others have trod this path; let them help you.

Looking your judges in the eye

Judges are probably the key to a successful application. In the year I was finally successful I had done two of my most significant cases in front of a judge who has a reputation for being particularly disagreeable, and who I was sure hated me. He had come close to threatening me with contempt during one testy exchange. I had resolved not to bother applying if he was hostile, as it would have left such a chasm in my application. I was shown through to his room resigned to the worst. He could not have been more welcoming and positive. My opening salvo was along the lines of please be honest if you can’t support me, because it will be a waste of my time (and money) and more particularly yours if I put you down as an assessor. He immediately replied that he had a very high regard for me and would enthusiastically support my application. Like another judge I spoke to, he said advocates have an important job to do and the ones he respected least were the ones who rolled over at the first sign of trouble. ‘I have a job to do, as do you.’ I could not believe what I was hearing. So there’s a thing.

I can’t emphasise enough how important it is to speak to your judges, and ask for their support. This is the thing I was most hopeless at. If an assessment form lands on their desk with no prior conversation and warning it might be considered a little rude. It’s certainly not ‘silky’. In effect you are asking them to commit time to your application without doing them the courtesy of asking. If you have looked them in the eye, they will respect you and more importantly will remember you. If you have conducted a case well, overcome your natural diffidence, own your success, go and discuss it with the judge and make a full note so when you come to fill in the form all the information you need will be waiting for you. We don’t analyse our performance enough. It tends to be on to the next case, or conference. Taking a bit of time to reflect and listen will reap positive rewards.

Getting (and giving) support

Interview training and assistance with filling out the form has become a bit of an industry. And the cost is very high. Interview technique is definitely a skill that can be learned, or at least something we can all improve. An effective way is to sit down with a recently appointed silk and do a mock interview, based on the sort of questions they were asked. A common failing is to say too much, meander off point and to lose the structure of an answer. Not a good look. The questions will be designed to encourage you to shine rather than to trip you up; ‘what did you do particularly well’, ‘what was the biggest challenge you faced in one of your cases’, ‘how have you shown you can effectively lead a team’, ‘how do you deal with a difficult judge or opponent’, ‘tell us about how your use of the law changed the course or outcome of a case’, ‘how has a diversity issue affected the way you have managed or presented a case?’. These are platforms for you to show the panel why they should appoint you. Preparation and practice are the key. You can pay someone to fill in your form if you want to. Personally, I think you should do it yourself.

There is a great deal of free support out there, and an increasing numbers of organisations that provide free mentoring; the Bar Council, Inns, the Circuits, the Association of Women Barristers, Women in Criminal Law and the SBAs all offer guidance and advice. In the end it will be your decision but the statistics strongly suggest that there are many talented women and BAME advocates who should be in silk but are not applying. Putting this right is a campaign in which we should all play our part.

To boldly go...
Shantanu Majumdar of Radcliffe Chambers writes: Somewhat unexpectedly, my primary feeling at being appointed silk in the 2019 ‘competition’ was relief. Relief at never having to fill in the form again (twice is enough for any normal lifetime); relief too that I shall no longer have to face the unspoken but real/imagined question ‘Why is he not in silk?’ Under this system it is hard to feel triumphant or even necessarily better than anyone else. This is because appointment seems so much down to chance or, at least, factors which are hard to control (if that is not the same thing): how many of your cases settle in the relevant window, precisely which of your assessors are consulted by the panel etc. But this should embolden rather than deter you. The costs are significant but, otherwise, what have you got to lose? Especially if – as I once drunkenly told a soberly unamused Lord Mackay – you like dressing up as much as I do.
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Chris Henley QC

Chris Henley QC is a criminal law silk at Carmelite Chambers and Chair of the Criminal Bar Association 2018-2019.