September 9th, 2015
Until comparatively recently, barristers and solicitors were two distinct but interrelated disciplines in the provision of legal services. In summary, solicitors were compared to general practitioners offering advice across the board in a variety of disciplines, depending on their size and the expertise of their partners and associates. Barristers were compared to consultants who gave specialist advice and, when necessary, representation in court.
It all seemed to work well enough, but the legal profession as a whole has always been distrusted as a fat cat’s club where outrageous fees come first and the interests of the client a distant second. It is strange but true that the two Prime Ministers who did the most damage to the Bar as a referral profession were both barristers, and I refer to Margaret Thatcher and Tony Blair.
The major blow to the Bar as a referral profession came with the enactment of the Courts and Legal Services Act 1990, which gave solicitors equal rights of audience in every court, whereas previously they had honed their adversarial skills in the Magistrates’ Courts. The problem as many saw it was the complete absence of advocacy teaching in the solicitors’ training, and even though those aspiring to the higher courts rights had to pass a proficiency test, it was a poor substitute to the advocacy training undertaken by barristers. Despite the best endeavours of solicitors to offer a ‘cradle to grave’ legal service, astute clients still prefer the expertise of a barrister.
However, with this change, there were many at the Bar who complained that they were not competing on a level playing field. The tradition that barristers only accept instructions from solicitors enabled solicitors to cherry pick and keep the best work for themselves, regardless of expertise, and farm out the dross to the Bar. The tail was well and truly wagging the dog.
And so it was that about ten years’ ago, direct access was born. It started slowly and tentatively, with just a handful of barristers like myself offering our services direct to the public, but it has now snowballed, and at the last count, over 5000 are now accredited.
Direct access, also known as public access, allows the lay client to come direct to a barrister without having to go first to a solicitor. This has an appreciable saving in legal fees, and as we barristers would say, the lay client gets the best possible representation. It doesn’t work in every case, in particular the more complex cases where two heads are better than one, but in the more straightforward cases, which comprise over 80% of all cases, direct access works well.
Only time will tell if this is the first step on the slippery slope to a fused profession, similar to most other legal disciplines, where barristers and solicitors become lawyers or attorneys, but for the time being, direct access is benefiting the lay client, and that must be a good thing.
August 25th, 2015
It is not easy to determine the qualifications needed to be a good judge. Infinite patience must be one, compassion another, and doing the right thing even if it kicks against the prick.
Nowadays, judicial preferment is open to both barristers and solicitors, although in the great scheme of things, solicitors are a relatively late arrival. In the good old days, or not, depending on your perspective, judges were appointed on a nod and wink, and it was all very informal. If your face fitted, you were in.
How times have changed. Today, those who seek judicial office must now submit a written application, fill out several forms together with two recent passport photographs, be interviewed by assorted minions, and succumb to background checks to weed out the undesirables who consort with femmes fatales and who wear women’s undergarments. Everything possible is done to ensure that the newly appointed judge will march to the Lord Chancellor’s tune and never march out of step. With this in mind, the LCD has produced a series of sentencing guidelines, regularly updated to reflect the political climate, and judges both old and new are enjoined to follow them. By all accounts, there are to be no exceptions to the rule, and those who stray are carpeted and warned as to their future conduct. It’s like Judge John Deedes, but for real, and as there is an index-linked pension at stake, few if any break ranks.
And so it was that Roy Delph, an 88 year old pensioner and the main carer of his 73 year old wife, found himself on the receiving end of a two year sentence of immediate imprisonment for possession of a loaded antique firearm in a public place. It was accepted by the judge that Mr. Delph had the gun for his own protection, as he had been targeted by local yobs, an all too familiar story. But according to the guidelines, a sentence of immediate imprisonment was called for, and the judge duly passed it. Understandably, there was a hue and cry across the Media, as the sentence was manifestly wrong, not as a matter of law, but as a matter of compassion and common sense. Fortunately, a way was contrived to sidestep the sentencing guidelines and the unfortunate Mr. Delph was released after 18 days with the taxpayer picking up a bill of £1250 for board and lodging at Norwich Prison. He was, and remained, totally bemused by the English criminal system, as he was profoundly deaf and followed very little of the proceedings that led to his incarceration.
Some years ago, I found myself in front of the Lord Chief Justice appealing a sentence. During my submissions, we had a lively discussion on guidelines to be followed by the sentencing judge. The LCJ was unimpressed by the reliance placed on them:
“It should be made clear,” he ruled, “that by their very definition, guidelines are only that, guidelines, and too slavish an adherence to them can lead to a miscarriage of justice.” Amen to that. That ruling needs to be framed and hung in every judge’s room throughout the land.
I am not arguing against guidelines, after all, they bring consistency and uniformity to the sentencing process. But they should be seen for what they are, and not a sentencing straitjacket. If only somebody at Norwich Crown Court had had the wit and courage to tell the judge that under no circumstances whatsoever could he contemplate sending this 88 year old man to prison, a way could have been found that was eventually found some 18 days later, and in so doing, he would have spared Mr. Delph and his wife the ordeal and, more importantly, have defended the law from all those many people who thought it an ass, and rightly so.
August 13th, 2015
There is a lively debate in the Press and the Media about prostitution and what, if anything, should be done about it.
This debate is as old as time itself. The offer of sex in return for payment, whether in cash or in kind, marks out the prostitute as the oldest profession, and every civilisation has exploited sex, be it with men, or women, and in some cases, with children. For the Creationists amongst you, blame it on Jehovah, as he kicked the whole thing off when he expelled Adam and Eve from the Garden of Eden and left them to their own devices. In no time at all, they were begetting away, the chosen race was created, and the rest, as they say, is history.
But for us humans, chosen or otherwise, to survive and thrive, the act of conception has to be an intensely pleasurable one, otherwise why bother, and without the bother, bang goes posterity. It doesn’t matter if the sexual act is for the sole purpose of conception, as the Catholic Church would have it, or the carnal act as the rest of us would have it, with the Mistress if you can afford one, or a femme fatale if you can’t. The sex drive, like the poor, is always with us, and no amount of tongue clicking from the raddled harridans of this world is going to change that particular dynamic.
It is against this background that Amnesty International has dared to tread. At its recent conference in Dublin, it passed a resolution recommending the full decriminalization of all aspects of consensual sex work. This has split the feminist movement asunder, there are no grey areas, only black and white. Cutting to the chase, their aim is laudable: prostitutes should be given the same human rights as the rest of us, they should be protected not vilified, to avoid exploitation, trafficking and violence.
English law under its many legislative guises is a complete shambles when it comes to the regulation and decriminalisation of sex. For example, it is not against the law to be paid for sex, but it is against the law to solicit for sex, so quite how the enterprising woman goes about performing the sexual act without soliciting for it remains a total mystery. You can hump away in a hotel but not in a brothel, that old fashioned and somewhat pejorative term for a gaggle of hookers. It is a distinction without a difference.
There will always be prostitutes, so let’s face facts and do what we can, as a civilised society, to prevent their exploitation. The most obvious way is to take sex off the streets and into Maisons de Plaisir. It sounds better than ‘brothel’.
In Paris, where they know a thing or two about amour in all its shapes and sizes, it is all so civilised. The guest is booked in at the appointed time, having made a reservation beforehand, and he will be required to pay in advance. No pay, no play! When making his reservation, he will have chosen his particular fetish and will have been told if it is available or not. He will also indicate how long and how much he wants to spend with his partner. He will wait for her in a discreet room away from prying eyes such as his wife, and a good bottle of champagne, vintage not domestic, will have been opened. There is no room for lager louts. He will be taken to a lavishly furnished suite of rooms where he will undress, shower and put on a clean bathrobe. He will then choose his condom in both size and flavour, after which he is under starter’s orders and off and running in no time at all. The Maison will have its own security system, so at the first sign of inappropriate or violent behaviour, the guest is out on his ear.
This tackles and avoids the fears which AI seeks to address. There is no exploitation, and no violence. The Maisons de Plaisir will be the subject of regular government inspections to ensure the highest standards are maintained. If it is accepted that sex is here to stay, and it is, it is pointless and counterproductive to try and protect prostitutes on the street. I should also add that by adopting my approach, it will almost certainly reduce violence and the reported incidents of rape.
Here’s a thought to liven up the leaden debate between Lefty Corbyn and the Also Rans. If Yvette Cooper, who is trumpeting her sex, has any chance of getting herself elected as the next Leader of the Labour Party, she should adopt my approach into her manifesto, and she’d be a shoo-in.
August 10th, 2015
I have hit upon a super wheeze to make a tidy sum which requires very little effort. I am going to start a charity, provisionally entitled Kids Today and not to be confused with Kids Company. Its general aim will be to provide support to vulnerable children from all walks of life, but preferably with big pleading eyes, an emaciated frame and a story to tell about Ted Heath.
I shall remain the eminence grise in the background, tugging at the heart strings but if the **** hits the fan, I shall deny all knowledge. Better still, I shall create a paper chase of shell companies which, when followed, leads up a blind alley.
First and foremost, I need a Big Momma, a well built and matronly woman with an unpronounceable surname, wearing an all-enveloping gaily coloured dress topped off with an absurd matching turban. She must have an ample bosom into which these vulnerable children can bury their heads as and when the need arises, which will be every time an inspector or newshound turns up at the door.
One essential qualification for Big Momma besides an unpronounceable name must be a hint of Xanadu, definitely east of Suez which places her firmly in the ethnic minority category, or at least for the next few years, by which time the ethnic minority will have become the ethnic majority. My thinking behind this cunning ruse is to play the race card when I send her out to solicit funds for Kids Today.
There are two obvious ways of generating income for my nascent charity. The first, which I dismiss out of hand as a complete waste of time, is shaking a tin at passersby in the High Street, recently pedestrianised by the local council with flower beds for depositing empty lager cans and spent condoms. Those passersby who wouldn’t think twice about paying £200 and more for a lurid tattoo right cross the forehead reading “Mind the Gap” never seem to have any spare change when a charity box is rattled in their direction, so they avert their gaze and hurry on by.
The second way, and easy-peasy, is to solicit funds direct from the government. For this to work, the government must be led by a gullible Prime Minister, and as luck would have it, David Cameron fits the bill to a T. Big Momma will have her photograph taken with him, and if she plays her cards right, an invitation to join the Cabinet with lots of smiling faces and general bonhomie. Everybody loves a big eyed pleading kid, and not just Ted Heath. Even if the Whitehall Mandarins try to play the silly buggers, Dave can be relied upon to overrule them as the first wedge of public money reaches my account. By ‘my’ account, I mean the charity’s account of course. If other celebrity twerps come on board with sizeable donations, I shall not turn them away.
Finally, and this is where Big Momma really earns her corn, if the Charity Commission sends in auditors to inspect the books, besides complaining to Dave about harassment, she can play the ‘I know nothing’ card, along with the race card, and inform all and sundry that any suggestions of irregularity will be vigorously contested once the charity’s accountants have been through the books. That might take some time, as the charity’s accountants have yet to be appointed.
So much to do, so little time. Now where’s that one way ticket to Costa Rica?
July 31st, 2015
Where there’s a will there’s relatives circling like predatory vultures and ready to feed on the rotting corpse.
I doubt if many people will have heard of the the Inheritance (Provision for Family and Dependents) Act 1975, and I doubt if even the most competent solicitor will have brought this particular piece of legislation to the attention of his client intending to make a will. In short, it is a piece of legislation designed to defeat the wishes of the testator if it doesn’t tick all the boxes. Those boxes require the testator to make adequate provision for their family and dependents regardless of the warmth of affection, or total lack thereof, in which they were held during the testator’s lifetime.
The case of Heather Ilott has been widely reported, and as I read the facts, I have very little sympathy for her and a good deal of sympathy for her deceased mother. At the age of 17, Heather decided to elope with her boyfriend contrary to her mother’s express wishes. She regarded the boyfriend with grave suspicion, and took the view he was totally useless and a waste of space. The mother told Heather in no uncertain terms that she would be disinherited. Despite these express wishes, Heather went ahead and married Nick Ilott. The mother was not far off the mark in her assessment of Nick as husband, father to their five children, breadwinner and provider. His net income per week was £80.08. I didn’t think it was possible to earn only £80.08 per week, and on the information provided to me, I am in the dark. But I ask, in passing, and even allowing for the usual raft of state benefits shoveled their way, how is it possible for the two of them to even contemplate having five children in their circumstances? It is madness, and some might say, totally irresponsible. No wonder Heather’s mother decided to give her wealth to various charities.
Heather turned up at the Court of Appeal, cap in hand and pleading hardship, and came away with a lump sum of £164,000. But some of the comments heaped on the deceased mother’s head simply beggar belief. She was described as “unreasonable, capricious and harsh”, yet this was the same woman who gave her daughter a clear and unequivocal warning, which the daughter chose to ignore. In addition, Counsel for Heather had the temerity to submit that “it was not the daughter’s fault that her mother took against her.” Of course it was the daughter’s fault. When she was 17 she made her choice, and under normal circumstances, should have to live with the consequences. But not so, and I am dismayed that the Court of Appeal sought fit to intervene to defeat the mother’s wishes. It is a layabout’s charter, make nothing of your life, then come to court with a sob-story about never having had a holiday, having difficulty affording clothes for her family (who wouldn’t with five of them), and being limited in the amount she could buy, and expect a generous handout. How about Nick getting a proper job? How about the kids making some contribution to the family budget? That’s how most people get by.
So beware the unwary testator. Don’t imagine for one moment that your money is yours to do what you want with it. I hope the Charities appeal to the Supreme Court, if only to set the record straight.