He informed us that we were appearing on the last day of term and he announced that he would regard any day until 2 October as a “dies non”. Further case management would have to wait. Imagine me in front of a Judge who could speak Latin and took two full months as summer holiday. His situation is, of course, the same for Parliamentarians.
You see, in my little world we do not vacate. There are no holidays. My main concern is paying last month’s bills. I could have applied for a job years ago but I always felt that the Bar would see me through. Surely the top judges and the Inns would protect us. Not a bit of it. Whether lounging beside Lake Como in speedos or promenading in pink trousers through Padua, the law Gods waste no time thinking of the criminal Bar.
Don’t let me get started on the Inns. They fall over each other to teach advocacy, while the real advocates go to hell. It’s as if they don’t believe us when we say how bad things are. What is the function of the Inns, if not to support barristers? Education, they would reply. Yes but the students receiving scholarships and advocacy training will need a safe profession in which to practice jury advocacy because the commercial Bar is filling up. Perhaps it really is the litigation between oligarchs that matters and we have been deluded in thinking that justice for the ordinary Englishman and Welshman has any real importance.
So, we begin again (after the long vacation) with a new Lord Chancellor and the promise of autumn proposals. Some slight revival of our hopes and dreams. As usual, we are left with a vague impression of a nod or a wink of sympathy from the Government side. We carry on with no more than that. As I write, there is general condemnation of zero hour contracts and the tube workers are objecting to extended night services on the basis of work/life balance. We smile at such luxuries of proper employment. A contract! Life balance, come on.
Of all the changes in my time at the Bar, the best has been the great influx of hard working young people of the highest quality. Those who claim that the criminal Bar is too big should remind themselves of the quality and diversity that we now enjoy. I have led dozens of impressive juniors who could succeed in any walk of life but dedicate themselves to this life of constant hassle. Most Sundays are ruined by Monday’s case. There are no nights off. Ruminations over the case in hand are a constant preoccupation and distraction from happier ways of thought. They devote unpaid time to learning new criminal law that spews out of Parliament. They need the ability and courage to fence with judges and opponents while reaching out with common touch to persuade jurors. They have to bear all that daily angst while a Government blind to their quality, puts them under increasing financial pressure.
The best will move first and the tipping point has already arrived. You cannot build a career on a nod and wink or an impression gained around a dinner table. Nor can you build a career on a “no returns” policy. You cannot lead a happy professional life in a permanent state of conflict about the quantum of fees and who will control them, while inflation diminishes the lessening sums in hand. You do need to pay the bills and convince young families that sacrificing their time is worthwhile.
We need to get ourselves onto the front foot. It is far too late to be influenced by the old fear that things will get worse if we complain too much. That argument has always failed. We need a grad fee scheme with not an hour of unpaid work. It needs to be inflation proofed and extended to VHCCs. It also needs to be ring fenced and taxed and paid by the Court. Our fees must have nothing to do with solicitors. Any financial incentive paid to them for work should be treated and punished as bribery. Solicitors should no longer have audience in the Crown Court except for appeals and committals for sentence. Conditions for the transfer of criminal practitioners from one profession to the other professions should be eased, at least for the time being. No longer should the fee for litigating be in the same hands as the advocacy fee.
The certification of leading and junior counsel should be an enabling discretion, and not a framework of challenging hurdles. It should be automatic in certain classes of crime, e.g. murder. We cannot tolerate a poisoned system in which able juniors are afraid to apply for Silk.
With all of this in place, we barristers can continue to burn the midnight oil in order to help the court and work at weekends without any extra compensation.
Now we must fix the numbers. The sums need to be reasonable and comparable with the remuneration in other similar professions that receive public funds. They should be defined again as “reasonable” and monitored by an independent committee, as MP’s pay is.
There are so many unrecognised side effects of “the cuts’. One example (which may not have been noticed) is the plight of those imprisoned for crimes that they did not commit. When we were well paid it was a pleasure to offer pro bono assistance. We have done it so often in the past that the Court of Appeal takes it for granted. I am beginning to resent orders for skeletons in a tight timescale when I am working out of the goodness of my heart. I believe that the Criminal Division and Criminal Appeal Office are far less accommodating than once they were. I suppose that our rulebook society needs rulebook administration and even Pharisaic judging. Freebies from the Bar should be exceptional in the system of Criminal Appeals.
Yet I refuse to abandon all hope. Perhaps our judges and politicians will be more kindly and relaxed after two months of dies nonies (or whatever the plural may be). They might try to help us. We can but dream.
Contributor Ian Glen QC