UNFIT FOR PURPOSE

There are many barristers who, despite all the evidence to the contrary, are still intent on grinding out a practice in crime.  It should come as no surprise to the vast majority of them, but crime doesn’t pay!

For some time, the Criminal Bar has been under siege.  At the forefront of the attack has been successive Lord Chancellors, going back to Maggie Thatcher’s time, who have been mandated to reduce the legal aid bill, and the biggest consumer has been crime.  We have all read with astonishment the enormous legal aid bills submitted to the taxpayer, most recently by Asil Nadir and his team, with a bill in the region of £1 million.

But for every Asil Nadir there are thousands accused of crime who genuinely cannot afford to pay for their representation, so legal aid is an essential service if justice is to be done and seen to be done. The hallmark of a civilised society is the way in which we treat our most disadvantaged, the more so where they risk a lenghty sentence of imprisonment.

But when you have a service driven primarily by budgetary considerations, something has to give, and regrettably, it is the quality of the representation available that is the first casuality. And so it was when defence solicitors acquired their higher rights of audience, with the maxim “you don’t buy a dog and bark yourself”, these solicitors are chancing their arm in the art of advocacy and doing their own cases where they had formerly instructed counsel.

This is not to suggest that all defence solicitors are hopeless, but advocacy plays no part in their training, so they are immediately on the back foot when going forward.  Their clients are ill-prepared to judge their advocacy skills, and judges are constrained against throwing their wigs in the air and stomping off the Bench.

As part of this ongoing policy to drive down the legal aid bill, the Crown Prosecution Service was created, along with the usual budgetary constraints, and they too have climbed on board the advocacy bandwagon.  In a recently disclosed email, CPS “advocates” are enjoined to use a ‘tick’ and ‘star’ system on each and every brief.  The tick indicates possible complications that not even the most ambitious advocate would want to tackle, so that brief will be farmed out to counsel, and he can pick up the pieces.  The star indicates a brief to be kept ‘in-house’ for the aspiring CPS advocate to cut his teeth on.  The criminal law should not be a lottery with those least qualified deciding if the case should be kept in-house or farmed out to the luckless barrister, and this applies equally to prosecutors and defenders alike.

However, I believe we reached the point of no return some years ago, and the Criminal Bar has only itself to blame for this farrago.  What lobbying that was done was very half-hearted and wholly ineffectual. But ultimately the government as the sole provider of legal aid has the whip hand, and with so many mice chasing the same piece of cheese, it’s a case of ‘take it or leave it’. Put crudely, get stuffed!