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!

VALUE FOR MONEY

Chris Grayling, the Justice Secretary, has recently questioned the need for Queen’s Counsel, or Silks as they are known,  to be instructed in criminal proceedings, and by that, he means defence criminal proceedings.  This questioning comes on the back of a legal aid bill submitted on behalf of Asil Nadir in the region of £1 million.  I do not know who represented him, but I suspect his defence team included a smattering of Silks.

The eligibility to legal aid has always confused and bemused me in equal measure. In the case of Nadir, it was proved in court that he had squirrelled away up to £29 million from Polly Peck when it went into administration.  He fled the jurisdiction and lived high on the hog in his home in Northern Cyprus for 17 years.  When he returned to the UK “to clear his name” (dumb move as it turned out), he was living in Mayfair on bail in a house rented at £20,000 per week, so no evidence of hardship, but against all this, he was granted legal aid on the back of a claim that he had no assets, and was dependent on handouts from his mother and girlfriend.  Some mother! Some girlfriend! As it turned out, that didn’t wash with the judge, who ordered him to pay £5 million in compensation to the administrators.

But enough of Nadir if that’s possible, and back to Grayling’s wider point.

He said: ‘If you look at the daily rate for a senior QC it can be between £1,300 and £2,000. For somebody who’s going to become a QC in a month’s time, it’s half that amount.  The question is, can we really afford so often to use people who are paid such an additional higher rate compared with somebody who’s nearly as experienced, who’s a seriously competent barrister, who will become a QC one day if they choose to do so.’ Quite so.

In a nutshell, and Grayling is referring to legal aid, if a senior barrister is qualified and competent enough to become Queen’s Counsel, it is more cost effective to use him at half the price instead of a Silk who is no better qualified and competent, simply because he is entitled to use the letters ‘QC’ after his name.

There was an active debate back in 2003, with the proposal that the rank of QC should be abolished altogether.  The Bar Council, amongst others, argued that this would discriminate against ethnic minorities and women.  For my part, I have never understood the rationale behind that argument, although I am not an ethnic minor, unless WASPS qualify, and I am not a woman.

Perhaps the obvious solution is for Silks not to use their appointment as an excuse to double their fees.  That would leave the rank available to those who seek elevation and who feel it important to their standing in the profession, and satisfy Grayling’s demand that there should be better value for money in the market place where the public purse is the provider.

At the end of the day, the Legal Services Commission sets the budget, and if the Silk will not work within that budget, he loses the brief. End of story!