CONSPIRACY THEORY No. 1

I posted a comment on Simon Myerson's blog in relation to his article 'Neglect' (I have subsequently withdrawn it) in which I opined that the series of challenges faced by the criminal bar was the result of a politically driven agenda to 'destroy' it. Oh hush my intemperate soul! Faced with a demand, from a man calling himself Swiss Tony, that I 'keep things in perspective,' I was tempted to hide my face never to be seen again. However, having considered Simon's recent post 'Will the Criminal Bar Last' (24.01.08) - which includes the following passage: "The Government is not trying to destroy the criminal bar in my view," I feel that I may have something, at least, to contribute to the debate.

Until the Carter recommendations on remuneration took effect, there was a consensus (in my view) at the criminal bar that due to the lack of any increase in graduated fees since the mid 1990's, earnings in real terms had suffered. Whilst there had been a more recent accommodation reached in the longer cases, this had little effect on the majority of the bar whose practice, like mine, is predominately that of the 1-10 day case variety. It was dissatisfaction about the fees that led to the situation a number of years ago where individual members of the bar were days away from taking the individual decision to refuse to undertake publicly funded criminal work (with the support of the Bar Council) as not being proper remuneration i.e. strike. The government avoided the consequences of large numbers of individuals making the same decision (a complete shutdown of the criminal courts - huge back-logs of cases - prison overcrowding - guilty defendants walking free etc), by asking them to wait for the recommendations of the Carter report, at that stage due imminently.

Carter was not solely about fees or about the bar. It was a detailed review about the organization and funding of the provision of legal services. But the implementation of any of its recommendations was determined by the government of the day - a government that is not in my view - criminal bar friendly. It had to implement Carter's fee proposals because it had effectively promised to do so and to go back on that promise would provoke individual revolts. Lets not forget that the Government has only promised to honour Carter fees for a very limited period of time; so if anyone suggests that the temporary increase in fees, for defence only 1-10 day trails, was agreed by the government because they recognized that the criminal bar was undervalued and underpaid, and was agreed in anything other than a grudging fashion, they would be guilty of a misrepresentation of the facts.

Carter's fee recommendations did not represent a victory for the bar. The overall budget remained the same. All that was achieved was that the disproportionate remuneration for those conducting long-running cases was stopped, whilst for defence barristers conducting 1-10 day trials some of the reduction of real terms earnings over the previous decade was redressed.

As we all recognize, the public perception of a barrister, whether a hardworking criminal junior or a commercial silk, is that of a 'fat cat'. This government has quite cynically failed - and deliberately so - to disabuse the public of that notion. Indeed many may recall the outrageous publication by the government a few years ago, of a list of names of the 'biggest earners' from the public purse. There was no equality of reporting to inform the public of the average earning, after tax and overheads, of a criminal barrister of say five years call. To suggest that such omission is anything other than deliberate is naive to say the least.

Why the dislike of an independent criminal bar? Some suggest that an independent bar leads to an independent judiciary. Such a judiciary is known, for instance, to determine that knee-jerk terrorism regulations are unlawful, or to pass down judgements that frustrate the ambitions of populist Home Secretaries. But what do I know?

What can the government do to harm the criminal bar? Exactly what it is doing now and has done for some time. First, effectively reduce the income of a criminal practitioner so that: i) talented youngsters are not inclined to become criminal practitioners at all and ii) a percentage of the existing criminal bar choose to leave for more lucrative pastures.

Second, reduce the amount of criminal work that finds it's way to the bar at all.

Well, you ask, how is that achieved? The introduction of means testing for legal aid in the Magistrates' Court is a good start. Set it at a level so that a number of employed people who find themselves facing criminal allegations have one of three choices: either pay large amounts of money to solicitors as private clients to obtain representation in the Magistrates' Court; or elect Crown Court trial (subject to new limitations) or represent themselves in the Magistrates' Court. Of course, the first suggestion is not likely to find many takers - the second and third mean a reduction in a solicitor's fee income should the bar undertake all Crown Court work.

What does the Government do next in our hypothetical suggestion? Well, make reductions in solicitor's fees and preparation costs, so that they will look to find other income streams. The obvious complaint made by solicitors - 'Magistrates' Court fee incomes are declining whilst Crown Court fee incomes for defence practitioners are seemingly increasing', suddenly has an obvious answer - get into the Crown Court and conduct litigation there. I have been told that that answer was the one actually given by a government minister when asked about the reduction of fees by solicitors in a meeting held last year: 'what's stopping you going to the Crown Court and working there?'

Isn't this the most important question - what other profession relies on its direct competitor for work?

Imagine the scene. A client comes into a solicitors office. He is charged with an significant offence (lots of paperwork) that looks like it will result in a guilty plea. The choices are to give that easy piece of lucrative work to a barrister or retain it yourself - thereby earning the firm a potentially lucrative brief fee? A solicitors practice with a higher court advocate will inevitably attempt to retain the brief. All but the most difficult cases, or cases that are not economically viable will be retained by the solicitor.

That simple economic fact is why, on every circuit, the larger firms of solicitors are training new solicitor-advocates or hiring in new advocates.

Those members of the bar reliant on prosecution work have similar difficulties with the emergence of budgeting standards for the CPS that demand a certain percentage of its work to be conducted by their in-house advocates. Take a look, certainly at any provincial Crown Court centre, and calculate the percentage of prosecution cases conducted by their in-house advocates. It is not an exaggeration to say that entire lists on a busy plea day in some provincial centres have been conducted by in-house CPS advocates, with a large portion of solicitor-advocates representing the other side. What about the bar?

To suggest that solicitors will always want the expertise of a barrister is again, in my view, naive. The bottom line is that managing partners are business people conducting a commercial business enterprise. If it makes business sense for its in-house advocates to retain as many Crown Court cases as they can, that's exactly what a solicitors firm will do. Of course, cases, will always go to the bar - but do we know what sort of cases? Whilst the top members of the profession will always be needed due to their expertise, what about juniors? How do even the most talented cut their teeth when the cases they traditionally used to do so are now retained by solicitors?

Some say that defendants will always want a 'proper brief' and will insist on a barrister to represent them. Really? How many defendants do you actually think will be given the choice? How many are informed by their solicitors that they have the right to use an independent member of the bar and have the decision patiently discussed with them? How many solicitors instead tell the client something along these lines: "we have a fantastic advocate that we use for these sorts of cases, he/she is really very good."

That is why I agree with many that the decision to allow solicitor-advocates the right to wear wigs is another deliberately designed decision that undermines the position of the bar. Before that decision, the defendant sat at the back of court and saw that his advocate did not have a wig, whilst his co-accused's advocate did. Asking themselves the question of why that was, he discovers it's because he doesn't have a barrister.

It is not an issue of competence as opposed to issues of perception. But perception was one of the only weapons that the bar had, due to its undermining on other issues. Solicitor-advocates have briefs that are written identically to briefs to the bar. Some have the same template as the briefs to the bar: 'brief to counsel Miss X'. Why do they need letters of instruction when they work at the next desk to the clerk who briefs them? When they are in court in wigs, with a brief on the table in front of the defendant that refers to them as 'counsel' - the defendant is hardly going to think he does not have a barrister.

These are not schoolboy whines - they are legitimate complainants in the context of a decade of attacks on the criminal bar.

Is this position the result of a series of 'cack-handed' and ill thought out measures based purely on financial expediency? Of course not. It is the result of a deliberate design.

I am, in fact, firmly of the opinion that there will always be an independent criminal bar. It will be a great deal smaller that it is at present, servicing a much smaller workload. But it will also be weak as a result. Its survival in that form is, in my view, a testament to its inherent values - but nothing to do with this government - which has consistently manoeuvred in its attempts to destroy a profession whose fundamental independence is both its strength and weakness.