DIRECT PUBLIC ACCESS

This year I celebrate 13 years of public access work, now known as direct public access.  It’s been an interesting voyage into the unknown, but on balance, a rewarding experience.

Before public access came along, I enjoyed, or endured, depending on your perspective, the traditional chambers setup.  I joined Chambers as a tenant, which is a pompous way of saying that I agreed to pay my dues into the Chambers ‘pot’ in return for clerking services and a desk in a small room in the cellar.  These services were payment for work secured by the clerks from solicitors, and the clerks would negotiate my fees and any disbursements in return for a slice of the action.  And I was supposed to feel grateful.  When I left London Chambers for pastures new, I was paying 25% of my net income into the Chambers ‘pot’.

When I finally plucked up the courage to break free from the Chambers stranglehold and embrace direct public access, it was a red letter day. Overnight I became a sole practitioner and the head of my own Chambers, practising as the Chambers of David Osborne.  Very exciting.

As a direct public access barrister, I dropped criminal law, it wasn’t worth the candle, what with legal aid payments reaching rock bottom and journeyman solicitors with their cash and carry practices all but freezing out the junior Bar, and instead turned my expertise to common law. Nothing too grand, after all, as a sole practitioner, I have to ration my time if I am to do justice to my clients.  I now offer advice and representation in Tort, negligence, personal injury, landlord and tenant, contract, matrimonial and family.

The obvious advantages to me of flying solo is that I am the master of my own destiny, and I am no longer paying large sums into my Chambers ‘pot’. It is also an interesting experience of dealing direct with clients, instead as before of shielding behind a solicitor.

I am obviously not alone in offering a direct public access service.  When I first started in 2004, there were barely 200 of us.  Now there are nearer 5000, and growing by the day.  The direct public access service is becoming increasingly popular with lay clients, who can make appreciable savings on legal costs without the additional costs of instructing a solicitor.  However, I am finding it repeatedly the case that lay clients labour under the misapprehension that barristers are cheap.  That may have been the case when solicitors were calling the shots, but not any more.  It is taking time to persuade clients that a good barrister, and I can think of one in particular, brings with him enviable experience and expertise, and as somebody once said, and it could have been me, if you pay peanuts, you get monkeys!

I LOVE THEE NOT

On any view, our present divorce laws are a shambles.

Way back in 1973, the Matrimonial Causes Act came into force in part to remove conduct during the marriage as a factor to be taken into account between divorcing parties when dividing the matrimonial pot.  Within reason, this was seen as a positive move after the salacious revelations of the likes of the Duke and Duchess of Argyll, each blaming the other for an extraordinary relationship.  On any view, it was a marriage in name only.

But what the Act failed to address was the vexed problem now preoccupying many in the profession and the courts, namely ‘fault’ as the reason why the marriage had broken down irretrievably.  The legislation still requires one of the parties to blame the other for the breakdown of the marriage, and he or she, usually she, has several options to choose from: the front runner is almost always unreasonable behaviour, closely followed by adultery, and desertion in its different forms bringing up the rear.

Needless to say, the unreasonable behaviour should not be such as to tick the ‘conduct’ box, where other considerations apply.  Are you with me so far?  No, I didn’t think so.

Those in the profession arguing for ‘no fault’ divorce have highlighted the recent case of The Owens, where the wife petitioned for divorce after 40 years of marriage, stating as her ground her husband’s unreasonable behaviour.  Unusually, he contested this as groundless, the judge agreed, and refused her petition.

Family lawyers have taken up this case as yet another example of the absurdity of the present divorce laws, and argue, quite rightly in my opinion, for ‘no fault’ divorces.  Having to find a reason to divorce by blaming one party or the other is wholly artificial, and it can cause irreparable damage to the family unit where children are involved. By all means require the warring parties to attend mediation, just in case there is some hope of reconciliation, but once they are determined to end the relationship, let them do so with dignity.

I wonder if Liz Truss has an opinion to offer, but don’t hold your breath.

AT THE HEIGHT OF THEIR POWERS

I thought the debate on longevity had been settled some time ago, but apparently not.  I refer to the compulsory retirement of judges at the age of 70, when the rest of us, if so inclined, are sound enough in wind and limb to work on into our eighties.  Pension benefits are now being geared to a longer working life, and employers are keeping on valuable and experienced staff for as long as they want to stay. It makes sense to everybody except Liz Truss.

The compulsory retirement of judges has been raised, yet again, and this time by Lord Neuberger, the outgoing President of the Supreme Court, who is 69 and as far as I can tell, as fit as a butcher’s dog.  His mental acuity may not be a shoo-in, given his stance on Brexit, but that’s another story.

For those of you who can remember 1975, Lord Reid, that lion of the judiciary and a legend in his own lifetime, finally slipped off his wig and died.  He was in harness almost to the last, and when he died, he was 85.  Nobody suggested he was too old for the job, as he clearly wasn’t.  Imagine if Lord Reid had been forced to retire at the age of 70, we would have been deprived of his intellect and ground breaking judgments for another 15 years.

That other lion of the judiciary was Lord Denning, arguably the outstanding judge of the second half of the twentieth century.  When he hung up his wig, he was 83.

The Judicial Appointments Commission has reported that there are currently 25 high court, 140 circuit judge and 80 district judge vacancies that need to be filled, so forcing the present incumbents into early retirement is pure lunacy.

However, good news from Ms. Truss, as ever with her finger on the button: “The measure (to increase the retirement age) is not part of the Prison and Courts Bill.  I have had discussions on this with the senior judiciary.  We should certainly consider it in due course, but at the moment there is no consensus.”

I don’t want to be unkind to the floundering woman, but she is clearly out of her depth and needs to be put out of her misery.  The same applies to the rest of us. The excitement is almost too much to bear.

DUAL STANDARDS

This unseemly spat between the higher judiciary and the justice secretary rumbles on, with neither side prepared to call it a day.  I refer to the latest ‘salvo’, launched by Lord Thomas of somewhere Welsh and unpronounceable, wherein he harps back to the lack of her support for the Independence of the Judiciary, give it a rest Boyo, and he has added his criticism of her department’s recent initiative over ‘alleged’ rape victims and the limits on cross examination when they give evidence.

For those of you who don’t avidly follow these events, and why would you, Lord Thomas is the outgoing Lord Chief Justice of England and Wales, although England is conspicuous by its absence, look you.  Elizabeth Truss is the object of his barbs, fortified in the knowledge that as he is on his way out, he can say what he pleases.  Not very judicial, but he isn’t the first to cross the line.

Liz Truss is an easy target.  The poor lamb knows absolutely nothing about the law, she follows in the footsteps of Oiky Gove and his predecessor whose name completely escapes me, and in the great scheme of things, if this were not an overtly political appointment, she wouldn’t have been considered.  But in these days of gender diversity and equality of opportunity, anything goes.  By all accounts, she is surrounded by intellectual minnows who are on the back foot when coming forward, so no help there.

Lord Look You is perfectly within his rights to criticise Truss’s recommendations that ‘alleged’ rape victims should be cross examined in advance by the defence advocate submitting a list of prepared questions.  After all, it will be for the judges, high and low, to interpret and implement the legislation, so they have more than a passing interest.  I haven’t been through the mechanics, but I assume the prepared questions will be submitted in advance, and vetted, by the trial judge, to ensure that the ‘alleged’ victim will be spared any searching questions that she might find upsetting.  So the good old standbys such as ‘I suggest your evidence is a tissue of lies’, obviously upsetting, or ‘you’re an attention seeking madam who wouldn’t know the truth if it bit you on the backside’, will almost certainly be ruled offside.

Ms. Truss tells all who care to listen that in this way, when confronted by the evidence, many accused who would otherwise have chosen to brazen it out, would be reduced to gibbering wrecks and plead guilty.  I think not.

But where I take issue with Lord Thomas, and where, in my book at least, this is a classic case of dual standards, is his carping on about Ms. Truss’s reluctance to jump to the defence of the judiciary during the Brexit debate, and the adverse comments in the press aimed at the High Court as well as the Supreme Court for ignoring the will of the people.  But what about the independence of the Body Politic?  The Judiciary and the Body Politic are supposed to be two separate Pillars of State, they are supposed to be distinct although mutually complementary, and there is an unwritten rule that the one doesn’t criticise the other.  Much the same can be said of Justin Welby, but that’s another story.

It’s all the do with sauce and geese and ganders, and Lord Thomas demeans his high office by shouting the odds like a fishwife.  What is more, he is in a privileged position, as he is appointed for life and doesn’t have to submit himself for re-election.  Now there’s a thought!

GRUMPY OLD MAN

You may remember Michael Heseltine, but then again, why would you?  For those with a long memory, he was somebody in the Conservative Party during the reign of the Blessed St. Margaret, who is best remembered by the epithet that when he was good, he was very, very good, and when he was bad, he was awful.  He earned the nickname ‘Tarzan’ because, during one particular heated debate, he seized the Speaker’s mace and swung it round his head.

Towards the end of St. Margaret’s reign, Heseltine began to kick against the prick, almost to the point of being disloyal to the Party.  Emboldened by some of the ‘wets’,  he was persuaded to have  a tilt at the big time, à la Oiky, and St. Margaret was forced out.  Needless to say, Heseltine put his name forward as leader and Prime Minister with the corpse still warm in the grave, but with St. Margaret gone, the thought of Heseltine as the Head Honcho was more than many in the Party could bear.  Imagine his dismay and humiliation when he came second to John Major, promoted well above his rank of corporal, and we, the long suffering public, were forced to endure six years before he was put out of our misery by Tony Blair.

Since then, Heseltine has become a self-appointed Tory Grandee, a title reserved for the old farts who are always good for a quote when the sub-editor has a small column to fill and can’t find anybody else to fill it.  And so it came to pass that Heseltine, now firmly ensconced as the Party’s Grumpy Old Man, has become a fervent anti-Brexiteer, so much so that he refuses to accept the will of the people in the referendum.

That alone may not be sufficient to cast the man into the category of grumpy old man, but his grumpiness knows no bounds when he bemoans the fact that whilst Germany lost the war, ‘we’ have given them the opportunity to win the peace. Make of that what you will, but to me, it seems like complete drivel.

Germany has become the power house of Europe by dint of hard work, good organisational skills, a dedicated and hard-working workforce which doesn’t go on strike at the drop of a cloth cap, and which builds goods we want to buy when all ‘we’ had to offer was British Leyland and Harold Wilson.

Heseltine has been in politics for long enough to know that politics is all about listening to the people and not working for narrow self-interest. One of the main reasons why politicians like Heseltine are held in such low esteem is their failure to respond to the will of the people.  Theresa May was right to sack him for failing to support Article 50, so he should now be put back in his box and the lid slammed tightly shut.