The hour calls for optimism

Vocal on the onslaught of flexible operating hours and the perennial issue of fees, Angela Rafferty QC is determined that a diverse and collegiate criminal Bar will flourish. The CBA Chair shares her plans with David Wurtzel

‘We can count,’ is one of Angela Rafferty QC’s favourite quotes. It is a reply to those who reel off the names of women and black and minority ethnic (BAME) lawyers who have reached positions of prominence in the profession. Yes, ‘we can count’ how many there are; we celebrate what they have achieved; but also how much further we need to go in order to attain a truly diverse Bar and judiciary. Her election manifesto identified diversity and social mobility as priorities on which she is determined to deliver during her year as Chair of the Criminal Bar Association (CBA).

Angela’s own path to the Bar was unexpected. She was born in Northern Ireland, the eldest of seven children. The 11-plus exam was still alive and well there. Angela passed. Not all of her siblings did, and this was ‘an early recognition in my mind of how damaging perceived failure can be early in education’. She progressed to a good grammar school where her A-level results in English literature were good enough to propel her to Cambridge, on a full grant, and where she later switched to law. ‘I like the idea of English literature, explaining quite simple things decoratively, while the law was quite the opposite – you simplify codes and principles.’ In due course she decided to specialise in crime: ‘I enjoy the tenacity and courage of the criminal Bar. I love the characters you would meet. I really liked the camaraderie. I loved the fact that you could meet people from all different backgrounds – judge, client, court staff jury, all of life is there.’

Working conditions and money

When we met in July, our conversation strayed over a number of issues. Over and over again, though, she returned to the question of the young Bar and her concern for them – their fees, their prospects, their working conditions, and how to motivate them and indeed keep them in the profession.

An immediate issue which affects the whole criminal Bar is the Ministry of Justice (MOJ) pilot on Flexible Operating Hours (FOH) which starts in September in two magistrates’, two Crown and two civil and family courts. The optimistic aim is to use the buildings ‘more efficiently’ by having ‘split shift’ trials: 9.30am to 1.30pm and 2 to 6pm. The criminal Bar is totally opposed to this and points out that the MOJ could better produce an effective system by tackling existing systemic inefficiencies rather than cause this upheaval.

Angela co-signed the CBA letter to the MOJ which argued that the plan is ‘destructive of diversity’. (‘It will undo the victories we have had for diversity and social mobility,’ as she put it to me.) Although participation is voluntary, barristers with family responsibilities will find it extremely difficult to make arrangements (whether or not at the last minute) for a much earlier or later sitting. They thus face an invidious choice between professional and personal obligations. Barristers without such responsibilities might be able to do the case but that would give the pilot a false sense that it is ‘working’. The CBA considers it ‘unconscionable’ for someone to take an FOH return and encourages its members not to do so. The scheme would also be a strain on court staff and on vulnerable witnesses who, say, might only need a short break in their evidence but because of the new timetable would be obliged to come back the next day which would not be in their best interest.

In addition to this ‘direct onslaught on our working practice’ is the issue of fees; now some 40% lower in real terms than in 2010. For over 20 years defence barristers have been paid according to a graduated fee scheme (AGFS) which can simply be described as a grid which sets out what barristers will be paid for doing and how much. Earlier in 2017 the Ministry of Justice agreed to consider changes to the scheme so long as it was ‘cost neutral’, that is, there was no extra overall money for the Bar. Angela strongly feels that it is time for a review of fees which is not cost neutral but which properly invests in the criminal justice system. That includes both increases for the juniors and for more senior practitioners. ‘I want to see a progression at the Bar whereby juniors could see what lies ahead including seniors being paid for doing very serious work. We need to retain that ambition in the juniors.’ Her concern is that the more the present situation carries on, the more it becomes entrenched.

Training and quality

A good deal of Angela’s practice has included cases involving serious physical and sexual abuse and highly vulnerable witnesses. She was a natural choice for the working party under HH Judge Peter Rook QC which was asked in 2013 by the Advocacy Training Council (ATC) to devise a voluntary training course on the handling of vulnerable witnesses and defendants. In September 2014 the then Lord Chancellor announced that there would be rules (which have not yet in the event been issued) whereby advocates who do serious sexual offences cases would not be paid out of public funds unless they had undergone a training course. The working party then had to produce something appropriate for the entire criminal Bar. As Course Director, Angela took a leading role in devising this. She is now an Ambassador for the training which is being rolled out through the Inns of Court College of Advocacy. ‘The criminal Bar deserves a lot of credit for this process,’ she said. Together with others such as academics and intermediaries, ‘we really tried to effect the sea change that Judge Rook wanted’. Having achieved that, she would like to see ‘if there is something we can do’ about vulnerable defendants, who get left behind, and about advocacy in the youth courts. At the same time she made it clear that this kind of training should be part of the initial Bar course and not something to catch up on later in one’s career.

Both the ATC’s Raising the Bar in 2011 and the later report on youth justice by Lord Carlile in 2014 recommended a system of accrediting advocates to practise in this area, but the current course is there to train but not to assess delegates. The issue of accreditation, however, does not go away. The CBA letter about the FOH pilot adds, ‘without a defence panel scheme, advocates are instructed in cases beyond their competence and they waste time’. ‘A defence panel scheme’ relates to a proposal made a few years (and a few Lord Chancellors) ago, of setting up a scheme to ensure quality. The purpose would be to reassure the public that the advocates on it have met the required transparent standards. I said it would be pointless to include everyone because they feel entitled to be on it or because it would damage their career if they were not. So some applications would surely fail. ‘Making people feel like failures is not a good motivation,’ Angela replied. ‘People should want to improve and get better at things. We should not judge each other as failures when we have so many other pressures coming to bear at us from outside the profession.’ In the end, ‘we are a good-hearted profession’.

Barristers’ working lives

Angela is acutely aware of those ‘many other pressures coming to bear’. Part of it is the change brought about by working digitally in paperless trials. In some ways this increases efficient working but means that barristers ‘are now in danger of being “on” all the time’. What time is it reasonable to answer an email or communication? If you get your opponent’s skeleton at 10.30pm, should you be expected to respond to it by 9am the next day? Juniors in particular are still learning and may wish to consult colleagues. We need to be aware of working hours and ‘there should be a life outside of work’.

There are other factors which affect a barrister’s working life. ‘One thing we are going to concentrate on is conduct from the Bench to the Bar and barristers to each other. We do receive reports of this happening and we are concerned about it because a bad experience in court from a judge could put off a junior barrister who is under pressure but “who is trying to do their best”.’ Even in that context, she believes in the importance of a criminal Bar where members support one another and especially those who are starting out. She is keen to motivate those who are beginning their practices with more upward mentoring from senior members and from judges. Because of digital working, ‘we don’t see each other in chambers or in court as much as we used to’ but there is a need for a ‘collegiate atmosphere’.

Her concerns about the juniors includes her determination that right from the start, ‘the brightest and best from all backgrounds come to the Bar’. This brings us back to her commitment to diversity and social mobility. She is generous in her praise of those who have worked hard to achieve this. She explains that ‘the point at which inspiration strikes has to be at some point in secondary education’, so information is massively important. The Bar also has to think about how it presents itself to youngsters. ‘We need to show students the value of our work, the fact that it is amazing.’ I pointed out that statistically, the Bar overwhelmingly selects for pupillage those who have First or Upper Second class degrees from a very narrow range of universities. She said, ‘we have to be there at the point’ when students choose a career and to explain that the criminal Bar requires ‘emotional intelligence and street skills and smarts’.

Acting on my manifesto

I asked Angela what the job of chair involves. She lists the obvious tasks of chairing the Executive Committee, producing the Monday Message which is a collaborative effort, attending Bar Council, and ensuring that the CBA responds to consultations and consults widely with its members. She added: ‘I have to act on my manifesto.’ I re-read it after our meeting. In it she sets out the goals which she in fact discussed during our meeting: retention and career progression, fees, wellbeing and education.

She ended on a positive note. This is striking in a part of the Bar which seems to have taken a perverse pleasure in predicting its own demise. Angela will have none of that. Her other favourite quote is, ‘The hour calls for optimism; leave pessimism for better times.’ 

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David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.