When we met in January I suggested that he seemed to be starting a repertory company: Silk’s stars are Maxine Peake – the emotionally abused wife/defendant in Criminal Justice 2 – and Rupert Penry-Jones, the “posh” member of chambers in North Square; the one who memorably had sex with his opponent in the disabled toilet at court (gown on, wig off), and did something similar in Moffat’s Cambridge Spies.

The dramatist’s route

When we think “criminal barrister playwrights” we tend to think of John Mortimer and Rumpole. Mortimer was a large bon vivant who charmed the after-dinners at the Criminal Bar Association. Rumpole with all his quirks was adorable. Moffat is lean and fit – he calls himself an “addicted” runner and still does marathons. He famously clashed with the Bar Council over his depiction of barristers in Criminal Justice 1, where a QC invented a defence for her client and her junior embraced him in the cells.

Moffat’s barristers are not adorable. The solicitors vary between the unconventional and the seedy. They are all edgy and conflicted. “It is self-evidently more dramatic to have someone briefed late in the day, finding the client who finds that now it is you and not the person I met before”. As a dramatist “I am going to take the more interesting route” provided that it is based on truth “and provided you are not saying this always happens”.

Spotlight on the Bar

“I wouldn’t argue for anything else” than the adversarial system in court, he says, “but there are problems with it… I suppose what I want to show is here is a bail application, here is someone who pleads guilty, here is a judge who is a rounded character and not a buffoon, here is a barrister who is not going anywhere and never will, here is a pupil who is absolutely brilliant and who feels as if they are going through the most terrifying experience of their life when they get up in the mags for the first time. All of which you don’t get on telly”.

He wants the viewer to disagree with the verdicts. He dislikes the tendency on television to wrap things up. He likes The Wire, in part because it breaks the rules – not every scene moves on the plot and sometimes the characters just have a conversation, which Moffat says is fine so long as the characters are right.

“I still think we need to know more about the way the Bar is run. Twenty five years ago we all trusted all doctors, that’s not true now, we get questions, we get second opinions, I could tell you now, five people, just like that, who I would love to have represent me if I was in desperate trouble, great, wonderful practitioners, I could trust absolutely, advocates I would trust implicitly. And I could think of five people, perfectly seriously, and I would rather have my Mum. And I don’t think the world out there knows that, that there are good doctors, bad doctors, terrific barristers and not very good ones”.

The role of defence counsel

In 2008, the Chairman of the Bar reminded readers of The Guardian that barristers acted to the “highest ethical standards” and contended that what Criminal Justice 1 showed was barristers acting in breach of their professional obligations. In reply (“it was good to have a conversation about this” he recalls), Moffat pointed out that his main characters had a big problem. A young man is charged with murder. He has no idea what happened. He has nothing to say about how the victim came to be stabbed to death while he was in the same house. What defence is his QC going to run if he doesn’t give her one? “Defence counsel is called on to tell a story, to put forward a narrative which the jury can get hold of, which is in the best possible way, very rightly, an embellishment of what they have to go on”. On the programme a young barrister does just that: she puts to the deceased’s father that he was the murderer. He wasn’t, and the defendant was convicted.

Career path

Moffat’s own time at the Bar was hardly the usual career trajectory. He described that he had done no work at school until four weeks before his A levels. He did so well in them that he decided that he should take a year off and get himself into university to do a proper degree. He received a scholarship as a pupil which he spent on a new stereo and had to repay it when after three weeks in pupillage (with Stephen Kramer, now a judge) he decided that it wasn’t for him.

Years later he was coaxed back by Chris Sallon QC, became Nadine Radford’s pupil and got a tenancy in what is now 25 Bedford Row. But he wanted to write. The crucial moment came when he was doing a long trial, being led, and most of the time he thought, “I wish I wasn’t doing this”. He wrote a play which was accepted. “Somebody needs to say it is okay” so you can feel you can do it, and he duly left.

Since then he has written two Criminal Justice series, North Square, Cambridge Spies, Hawking, Einstein and Eddington and now Silk. His agent’s website shows Moffat has a raft of projects in development. Turning his hand to scientific subjects took two years of research and writing, and looking “at how arts and science are different, how we laugh at dinner parties about how we can’t do maths”. Coming up is a series based on a Derbyshire village and inspired by the German series, Heimat, in which the focus is on one village over the decades.

The script writing process

He is also executive producer on the new series. This has involved him more in casting and in some of the things that the writer normally does not see. Even as writer he views the daily rushes and has his input. Writing about law as a barrister, he does not have too many struggles with the director but “I enjoy a good old tough questioning about what this scene is doing”. The scripts themselves evolve. “You hand in your best work and you change it. It gets better. Sometimes there are seven drafts, which is an infuriating and time consuming process but it works, with the right people. As the actors find their characters and voices, so the scripts change to suit this”. He cited Peake’s way of saying things, which “belong to Lancashire and nowhere else”.
There is a practising barrister on the set of Silk to make sure everything is in the right place, and a QC as legal advisor to go over the scripts. She is frank at times in saying “we don’t do this any more” but is “enabling” in suggesting another way of making the point. He is conscious always of cost. His rule is that if there is no particular reason to have a scene in a different office then use the office you used before. We recalled the scene in Cambridge Spies, where the Luftwaffe bombing of Guernica – the horrific precursor of Rotterdam and Dresden – was enacted by a single World War I plane flying over an uncrowded marketplace. “Money, money. They shouldn’t have done it” he said, but the lesson is to think ahead. “Don’t do scenes on the underground, they cost a fortune,” he advised.

He relies though not just on the Bar but on the many other people he talks to. There is in particular a former police officer, now rather bitter about the way policing has developed (too much bureaucracy, too little of being the sheriff arresting the bad guys). He has been in prisons, spoken to prison staff at various levels, and spoken to former prisoners, “people do want to chat in a situation where you think they probably wouldn’t”. He uses some of their stories: in Criminal Justice 2, Peake, as an inmate, is handed a cup of tea in which someone had put a tampon – 95 per cent of those who wrote in to the BBC to complain about the series cited that, ignoring the graphic self-harm scene.

He writes (and researches) by taking his laptop to the British Library. He likes Humanities Two, a room which appears to be full of scriptwriters since he notices “final draft” on everyone’s screen. Previously he used the more literary London Library but he found that if he ran into someone he knew, it would mean an hour and a half spent on lunch. The British Library has an “atmosphere of endeavour”. The writer’s life has echoes of the Bar. If a script is accepted he is paid his fee and paid it again if the programme is in fact produced – a 100 per cent uplift in CFA terms. And with an agent who negotiates on his behalf and gets his 10 per cent, Moffat still has a “clerk”.

Life after the Bar

Moffat donated his time and the script of The Dunsinane Two which was performed in the Royal Courts of Justice last year to raise money for the Kalisher Fund. It was a brilliant combination of Shakespeare pastiche, references to his own series, and a good fun. A number of actors generously gave their time plus three QCs.

Just before it began, he found himself in the same room alone with Sir Derek Jacobi and Simon Russell Beale, quickly running through their lines together. “How good is this?” he thought. Life after the Bar has its compensations.

David Wurtzel is Counsel’s Consultant Editor