The Morning after the CBA rally

News of the CBA rally reaches the ears of the Lord Chancellor…


A Balloon too Far

Ballon too Far

South Yorkshire police have adopted an unusual tactic to help warn people about the risks of burglary – by breaking in to homes themselves. It has been reported, , that they attempt to enter unlocked premises and once inside, leave a balloon with a message on it from the police advising as to the dangers of leaving premises unsecured. The idea to encourage people to keep their doors locked. So far, so good you may think, but in doing so might they be committing offences themselves?

A person will be guilty of burglary as defined in the Theft Act 1968, when

(1)(a)     he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below;

(2)          The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

It seems unlikely that they would be committing an offence of burglary then, as the police wont be intending to steal, to cause harm to another and even if they do damage property during the course of their visit, it seems certain that that could not have been their intent.

So if not burglary, what about trespass? As every first year law student knows, or should know, trespass alone does not constitute a criminal offence but rather, is a civil tort. More interesting is the issue of aggravated trespass.

Section 68 of the Criminal Justice and Public Order Act 1994 provides that a person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that land, does there anything which is intended by him to have the effect

(a)    Of intimidating those persons or any of them so as to deter them or any of them engaging in that activity,

(b)   Of obstructing that activity, or

(c)    Of disrupting that activity.

Let us take for example the case of a person motivated by the Great British Bake Off, wishes to try their hand at baking, has burnt the cakes and leaves the door open to ventilate the house. A policeman entering in such circumstances would be trespassing with the intention of deterring the householder from ventilating their house and at least theoretically be guilty of an offence punishable with a fine not exceeding level 4 on the standard scale or imprisonment for a term not exceeding 3 months.

One can envisage fanciful charges should the householder suffer from globophobia and the attendant alarm or distress he may suffer upon receiving an unsolicited communication writtem upon a balloon.

Perhaps a more realistic charge would be one of criminal damage contrary to s.1(1) Criminal Damage Act 1971. A person commits criminal damage if without lawful excuse damages any property belonging to another or being reckless as to whether such property is damaged. It is easy to envisage circumstances when a policeman might without thinking, knock a vase over during such a visit. Such damage could constitute criminal damage, punishable by up to 10 years imprisonment.

When one considers the recent case law as to what constitutes damage, the possibility of a criminal offence occurring seems much more likely, even probable. Damage has been widely defined including the dumping of rubbish Morphitis v Salmon [1990] Crim LR 48, applying water soluble paint to a pavement Hardman v Chief Constable of Somerset [1986] Crim LR 330 or smearing mud on the wall of a police cell Roe v Kingerlee [1986] Crim LR 735. In such circumstances should the police when delivering their message, leave a muddy footprint on the lino or heaven forfend, the carpet, then surely the offence of criminal damage would be committed. If this recent policy was authorised at a high level, might it not be too long before we see the Chief Constable of South Yorkshire Police indicted for conspiracy to commit criminal damage. Somehow, I doubt it, but then again, I somehow doubt that this most recent policing initiative will be terribly long lived.

Chris Grayling – liar or incompetent?

Chris Grayling, our current Lord Chancellor is either a liar or an incompetent. I do not make such a statement lightly. Let me illustrate my reasoning with a true story.

In the Autumn of 2011, Mr Antoine, a person of good character was working as a general support officer  for  a north London Housing Association. His job involved moving items from one place to another, general maintenance work as well as other assorted tasks which he may be given to perform. Problems arose when 4 laptop computers went missing from their server room. An investigation commenced, he was suspended, the police brought in and charges and a dismissal followed in quick succession. In the greater scheme of things, this was to be no trial of the century. It wasn’t even to be a trial of the year. Just the standard knock-about criminal trial which most jobbing barristers have to deal with. That is, with the exception of Mr Antoine who saw things somewhat differently. No trial was more important, no outcome more serious. It was the biggest thing he had ever had to face and depending on the result, his life could be dramatically altered. Even a person of good character can face imprisonment for theft from an employer and the impact on his future employment prospects with a dishonesty conviction couldn’t be overstated.

He appeared before the magistrate’s court, elected trial by jury and the case was duly committed to the Crown court where I attended all the hearings. The first hearing was to be his Plea and Case Management hearing, the papers were not ready so the case was adjourned. At the second hearing, he was arraigned, entered his not guilty plea and the matter was set down for trial. On his instructions, I drafted a detailed defence statement. Essentially, he admitted taking the computers from the server room, but said that he had dropped them off at another location within the company. Further, he did this on the direct instructions left for him by another within the company. The prosecution case was somewhat different. They contended that the Housing Association had a strict policy regarding the movements of technical equipment, with requests for transfers being in a particular form, documented and being issued by a certain department alone. They said that as the relevant department had not made a proper and documented request, Mr Antoine could not have received any such request and he must therefore be lying. Mr Antoine was adamant that he had received instructions, albeit on a handwritten note and that he had received dozens of similar requests previously, many of which were confirmed by email. Hearing 3 was a disclosure hearing, designed to compel the Crown to hand over all of his previous emails, stored on the company server, something they were loathe to do until ordered to do so by the court. 10 days before his trial, the prosecution handed over 34000 emails on a hard drive, served as unused material. Hearing 4 was to break the (first) trial fixture, given that 34000 emails took some time to digest and the defence was not going to be ready in time. Subsequently and with Mr Antoine’s assistance, approximately 250 emails were identified which made similar requests to that made in his case, requests which the prosecution were contending ‘couldn’t happen’. I prepared jury bundles with copies of all of the relevant emails and prepared for trial. This (second) trial fixture, hearing 5, also did not take place. Various prosecution witnesses hadn’t attended and the prosecution were not in a position to proceed. Directions were made to ensure that the next trial date would be an effective one. Hearing 6 was a fiasco. It was meant to be a pre-trial review but fast descended into hours of delays while the Crown HCA desperately tried to find a reason why none of the previous orders made, had been complied with by the Crown. What made matters worse was I was double booked that day. Knowing the history of the case as I did, I felt I had to be present during that PTR which meant I had to pay someone else to do a different PCMH of mine, a fee which I would never recover as it comes out of the total brief fee. Hearing 7 was to be the third trial listing. At the trial date counsel who had now been instructed to attend on behalf of the Crown considered the defence bundle of emails, took instructions and offered no evidence against Mr Antoine. The date was August 12th 2013. His ordeal had lasted just shy of 2 years but at least it was over. He left court an innocent man.

During the course of this matter I had attended court on 7 occasions, drafted a defence statement, drafted submissions re disclosure, prepared jury bundles, considered Mr Antoine’s instructions and perused literally thousands of emails as well as preparing for trial twice. Conservatively, I imagine the case took about 60 hours of preparation spread amongst evenings and weekends, together with the actual 7 days of court work. My fee paid for all of the above. £194.

Paragraph 9, Schedule 1 of the remuneration regulations provides that where a defendant elects for the case to be tried in the Crown Court and subsequently the case does not proceed to trial, either by reason of guilty pleas or otherwise, a fixed fee of £194 will be payable. It doesn’t matter how much work is required, how much work is done, how many hearings there are. If the case folds without a trial, £194 is the total fee paid.

The rationale for this rule is obvious. Crown Court trials can be expensive. Penalising advocates whose clients elect Crown Court trials is designed to incentivise advocates to persuade clients to plead guilty, or stay within the Magistrates Court. If they don’t, the advocate knows he will lose money. To my mind, a system which builds in a conflict of interest between the advocates pay and his professional duty to his client is wrong. What’s worse, are the current proposals to transform legal aid which embrace such incentives and seek to impose them throughout the system, introducing measures which reward a quick result over the right result. It seems that justice must no longer be seen to be done, but seen to be cheap.

It costs me £10.60 a day to get to Southwark Crown Court by tube. I had to pay £100 to a fellow member of chambers who covered my double booked PCMH. Out of the £194, I have to pay my chambers and clerks a total of 14%, that is £27.16. For the purposes of these calculations I am ignoring the costs of any sandwiches I may have eaten, or coffee bought whilst at work. So what do I in fact receive? My fee for the preparation is nothing. We do not get paid for preparation or for out of court work. We do not get paid for considering unused material, however voluminous. Looking on the bright side however, although I was paid nothing for the preparation, that beats what I was paid for my court work where I had to pay for the privilege of working. My fee for the court work was a kingly -£7.36. That’s right I pay for the privilege of working.

The truth is, often it is a privilege to do this job. In securing a not guilty verdict for an innocent man, one has the rare opportunity to impact on lives in a positive way. Is it so wrong though, to expect to be paid something for doing such work? In doing this work, do I deserve to be called a fat cat? Is it really fair, or in any way justifiable to cut our fees a further 17.5%-30% if the latest legal aid ‘reforms’ go through?

So that is my true story. It may be, however, that some of you wonder why such a story leads me to the conclusion that Chris Grayling is a liar or an incompetent. The reason is simple. In answer to a recent question in parliament as to how the reduction in fees might effect those at the criminal bar he said under his new proposals, “the least that a junior barrister can be paid for a day in a Crown court trial is £225 plus VAT.” See at column 497. Either he knows he is wrong in which case he is a liar, or he is just badly briefed, doesn’t understand his department and is an incompetent. Personally, I have never thought him stupid but perhaps that is just me.

Do you hear the people sing?

Last night I sat down to watch the news. They led with the prospect of imminent industrial action being mooted by those working in healthcare, because the government were proposing to resile on their promise to increase the pay by 1%, of those who work within the NHS. Instead, the proposal was to freeze their pay, following two previous years of pay freezes. The camera switched to various healthcare workers arguing as to the unfairness of their situation, various union officials venting their fury and of course, the token government junior minister arguing how the pay rises were simply unaffordable. As the arguments went back and forth I couldn’t help but wonder what level of outrage would be manifested if rather than freeze their pay for the third year running, the government chose to cut their pay by between 17 ½ and 30%. I wistfully thought of how nice it would be to have a pay freeze, or at the very least, to be paid for the work I did.

You see, in the previous week I had attended a conference on a murder case at Belmarsh prison, a difficult day with a difficult client explaining complicated points in an extremely serious case; had a mention at the Bailey in that same case; done a sentence on a drugs trial I had been involved in some weeks previously as well as drafted a skeleton argument, attended a PCMH, had an evening conference in a new matter and attended a pre-trial review in a fraud case which is due to be heard soon. My take home pay for that week? Nada, zip, f*** all. We don’t get paid for conferences. We don’t get paid for mention hearings. We don’t get paid for pre-trial reviews. We don’t get paid for advising on evidence. We don’t get paid for sentence hearings. We don’t get paid for skeleton arguments. The only thing we do get paid for is trials, or at least those parts of trials which aren’t included within the brief fee and after having done the work and submitting the bill, I know it will be nothing short of a miracle if I’m paid what is owing in full, or within 4-6 months.

Now none of this is news to anyone at the criminal bar. We all have our own horror stories to share, know of people who have had to leave the bar, or been forced into bankruptcy. It bears repeating though as it highlights something I think has become lost in the most recent discussions as to whether to strike or not. That fact is, that the rates we currently work for are insulting, demeaning and in no way, in no manner, properly reflect the level of work we do, the seriousness of the responsibilities we bear or reflect the difficulty of our day to day challenges. Yet somehow, all of this seems to have been forgotten. We argue about the most recent proposals to cut fees by 17.5% whilst forgetting that fees have, on average been dropping every year since 1997. We argue as to whether our fees should be subject to a taper whilst forgetting that over half of our daily attendances are unpaid in any event. We argue as to rates whilst forgetting that the greater majority of the criminal bar are owed thousands upon thousands of pounds, by a dishonest LAA who appear to reject or reduce claims as a matter of course, in the hope that those who made the claims will not appeal, or will not appeal in time. We argue as to what we should be paid next year without any sort of united stand being made as to the monies we are all owed for work done in months or years gone by.

It is against this backdrop that I read of the discussions as to whether to strike, of those who counsel that the time is not yet right, that such action could turn the press or public against us, that such action is unaffordable by those at the junior bar and that such action may be counter-productive and when I read such, I become further disheartened.

 To me, the issue is clear. It couldn’t, in fact be clearer. What we are facing is nothing less than an attempt by the MoJ to destroy the independent criminal bar. I doubt there is anyone who still believes the MoJ will listen to the evidence, or engage with us unless compelled to do so. Work at our current rates is almost unsustainable, at the new rates survival is inconceivable. Even Des Hudson, that Judas ensconced as the chief executive of the Law Society accepted at the recent LCCSA meeting that he did not believe solicitors could properly prepare cases at the rates being offered. He also said they cut your fees because they can. To me, the answer is simple; we need to show them that they cannot. They take solace in decades of inaction by us. They take solace in our lack of unity. They take solace in our need to discuss, argue and debate whilst Rome burns. They laugh whilst we prevaricate as to how we will be perceived by the public, they laugh whilst we worry about the press. They will be laughing whilst the independent criminal bar withers and dies.

Of course it is true that to strike may be unaffordable to those at the junior bar. Of course it is true to state that any strike is uncertain, with an unknown landscape facing us once we have gone through it. These factors are however, set off against the certainty as to what will happen if we do not take action.  The junior bar will be killed off, the more senior and established members will be left trying to earn such living as they can before moving into other better paid areas. The criminal bar will become a playground for those who are wealthy enough to practice within it as a hobby. The decades of progress to BME individuals will be undone at a stroke and instead of the criminal bar attracting the very best advocates, filled with passion and commitment, we will move towards a USA style model, with law students or trainees doing a ‘pro bono’ stint as public defenders before moving onto bigger and better things.

Do I relish the prospects of a strike? Of course not. However, I care about the profession I practice within, I care for the clients I represent and I also care for my family. I do not understand why I shouldn’t be able to provide for my family whilst at the same time working hard in worthwhile job. I understand the anger of those in the NHS who wish to strike for lack of a 1% rise. I have greater difficulty in understanding those within our profession who don’t wish to strike when our very profession’s existence is threatened. It has been said that the fight we are about to undertake could be difficult. Our opposition are masters of the dark arts, they have people in the press ready to spin their lies and they are both unforgiving and uncompromising. The truth is, none of that matters. When you are fighting for your survival it matters not how hard the fight is, how long the odds are, if to lose is to die then the only option is to fight.

So if the call goes out, I shall be on the barricades, I shall be fighting for our profession and I hope you shall too.

An Hysterical Question Time

When I listened to Lord McNally suggest that I amongst others was hysterical, on BBC radio 4’s Law in Action last week, I was somewhat taken aback. Even if he didn’t mean me personally, but the profession I belong to collectively, there was something discordant about his description. I recall the demonstration outside parliament a few weeks back which must go down as the most orderly protest in history. One where those ‘protesting’ calmly took a few steps backwards to clear the pavement when reminded that they were obstructing pedestrians. These protesters were ‘hysterical’?? Or maybe I am being unkind and its not this group to which he refers at all, but instead the 140 treasury counsel who wrote to the Attorney General complaining about the reforms or perhaps the 90 QC’s who wrote to the Telegraph warning that the reforms could undermine the rule of law. After all QC’s and treasury counsel are renowned for their hysteria. If not them perhaps he means the council for circuit judges that well known hotbed of marxist agitators or maybe even Lord Neuberger, that epitome of hysteria. On reflection, he might simply mean each of the 16000 respondents to the sham of a consultation, the CBA, the Bar Council, The Law Society as well as more charities and law centres than one can shake a stick at.


Lord McNally looking happy to have been invited to be at the legal aid question time

So it was with more than a little interest I attended the legal aid question time last night to look in the eye and listen to the Minister, Lord McNally explain his position on the proposed cuts (reforms) and of particular interest when Joshua Rozenberg asked him if he regretted using the word “hysterical”. Lord McNally responded that he did not. That “we are in a wage negotiation and for us to deny our vested interest is wrong”. That we “can have our public protest but some of the claims that have been made are hysterical.”

I suspect I was not alone as a dark mood settled upon me. Listening to Lord McNally talk with pride that, “he was not a lawyer” with the obvious sub-text that lawyers are fat-cat, vested interest ridden, hysterical, seditionary idiots, that of course he recognized that quality wasn’t built into the PCT model yet still believed it “would not be a race to the bottom”, I couldn’t help but wonder what world Lord McNally was living in. If he genuinally believed that which he was saying or had simply trotted out the same old lies so many times, that they barely registered upon his brain as they got uttered again.

It was when he said with obvious pride how he had been warned that “when taking on the professions he should not buckle, and he would not” that I really started to get angry. How could his words be squared with the promise that the consultation process was an honest one and not merely a sham, a gossamer thin cloak designed to do no more than prevent the introduction of the PCT model being challenged by way of Judicial Review.

It is a measure of the calm and collected manner of Maura McGowen QC, Chairperson of the Bar Council in answering the question “was she hysterical”, that she started her answer “Not yet..”

Lord McNally, watch this space. What you do not seem to understand is that for too long, the system has creaked on merely due to the goodwill and hard work of those whom you seem to hold in contempt. Without our efforts, often for no payment and which go above and beyond that which most reasonable people would contemplate doing for a decent wage, the system would long since have come crashing down. If you think we are hysterical now, just wait till later should our concerns not be heeded and our goodwill is withdrawn.

Earning a Client’s Trust – or why I say no to PCT

I’m often asked, “How can you defend someone you know is guilty?” Of course I never know someone is guilty even if I suspect they are. The truth is, it’s not defending the likely guilty which causes me problems but defending those who I’m convinced are innocent which causes me sleepless nights. What follows below is one such case and it shows why as a barrister one must always take ones client instructions as the final word as to what happened and why one should never pressure a client into pleading guilty.

The case is one which might make the stereotypical Daily Mail reader froth at the mouth and one in which I was instructed a few years ago. An allegation of rape, against a minor, by an illegal immigrant. When I got the papers and read the case summary my heart sank. Mr A was an illegal immigrant and on the night in question was baby-sitting his partners’ 11 year old daughter whilst his partner was out with friends. During the evening the daughter complained that whilst she was watching TV on the couch, Mr A entered the room dressed only in his boxer shorts, sat next to her and then later, attempted to rape her. She ran upstairs to her bedroom, locked the door, hid in her closet and phoned the police. The case summary explained how that during the phone call to the police, Mr A could be heard hammering on the bedroom door asking to be let in. In due course the police turned up, banged on the door demanding to be let in. Mr A, rather than let the police in, made his way to the loft, escaped through a skylight window in the roof and dressed only in his boxer shorts made good his escape along the rooftops of North London. If ever there an overwhelming case, this was it.

The first conference I had with Mr A was fairly typical. It took place at HMP Wormwood Scrubbs and although booked for 2 hours didn’t start on time due to a ‘lockdown’ in the prison on the day of the visit. By the time I got through to see him, I had barely 45 minutes to gain his trust, advise him on the evidence and go through his instructions. The second conference was somewhat better. Mr A explained how he had only ran from the police because he knew he was here illegally and believed the girl had made up the allegation because she was annoyed at him for telling her to go to bed as it was her bedtime. My problem for the forthcoming trial was that I had nothing of substance to put to the girl and at least to my mind, the idea that someone might make all of this up, call the police and put her mothers partner through all of this simply because she was told to ‘go to bed’ was just fanciful. The final conference I had with Mr A turned out to be the most important one. By now, he trusted me and was prepared to open up to me in a way that he hadn’t previously. During the course of this conference he happened to mention that he had previously suffered an heart problem which had resulted in surgery. I asked how matters were now and he replied that he was fine save for the scarring.. I asked to see his scars and he refused explaining that he was embarrassed by them. I insisted and eventually he was persuaded to show me. His scars were horrific and extended from his upper chest all the way down the centre to his groin area. Almost as soon as he showed me, he began covering up again and explained that he doesn’t show anyone his scars. Even his partner hasn’t seen them properly as he insists on wearing a T-shirt when he goes to bed. For the first time since I received the papers, I began to see a glimmer of hope.

The trial was listed at the Old Bailey and in the weeks running up to it, I had sleepless nights for fear as to how my cross examination of the young girl would go. If it went well Mr A, as to whose innocence I was now convinced, would be acquitted. If it went badly he would be convicted. Lawyers and non lawyers alike know that a golden rule of cross-examination is to never ask a question which you do not already know the answer and I was intending to break it. The trial duly started, evidence was called and my questioning of the girl reached the stage where I asked her to describe how Mr A appeared when he entered the lounge, dressed only in his boxer shorts and still panicking that she might reply stating that he had a huge scar running down his body. She did not, however, and when later in the case during the defendants evidence he removed his shirt to show the jury his scar, I knew the case was won.

There are a couple of morals to this story. The first is you must always believe your client and defend him fearlessly. It doesn’t matter how overwhelming the case may seem to you, you are all he has standing between him and a long period in jail. If you don’t stand up for him, who will? If you don’t present his case, who else can?

The second moral is equally important and is that you must always engender trust between you and your client and go the extra mile in defending him. Many non lawyers, or indeed non criminal lawyers may not appreciate this, but as a criminal legal aid lawyer, you aren’t paid for attending conferences. Each conference at the Scrubbs is a day out of court where one might otherwise be earning. In Mr A’s case, I had 3 such conferences, 3 days out of court, 3 days where I was paid nothing.

The government is proposing to introduce PCT (price-competitive tendering) whereby organisations will bid for the right to provide legal services with the lowest bid winning. Lawyers are to be “incentivised” to get their client to plead guilty with the same rate being paid for a contested trial and for a guilty plea. Client choice is to be abolished and instead, the state which prosecutes you will dictate which of its cheapest bidding lawyers will defend you. Not only will client choice vanish, but so too will client trust. It is inconceivable that in the factory style target driven justice system which will follow, lawyers will have the time or inclination to attend at multiple unpaid conferences or even bother contesting a trial in the face of what might otherwise seem to be overwhelming evidence. I have no doubt, in a post-PCT world, with a Stobbart barrister, Mr A would even now, still be languishing in prison.

It is not simply illegal immigrants who fall foul of the law. Your son could be defending himself on a night out yet be arrested and face charges. You might be driving home from work, a pedestrian step out in front of your car and you be facing a possible prison sentence. In such cases you would want to be able to trust your lawyer and be confident they would go the extra mile in defending you, not just do that which their weekly quota demanded.

If this is the way you do feel, then please take a moment to sign the following petition. The government are set to be introducing these changes without any parliamentary scrutiny. 100,000 signatories will see the possibility of a debate in parliament. Help stop our criminal justice system being destroyed. It only takes a minute. Say no to PCT. Sign up now.

Do Right, Fear No-One or why I say no to QASA

This is a true story and is just one, of many reasons why I oppose QASA and PCT.

The more fundamental and principled arguments have been argued elsewhere, they include lack of client choice, the closure of hundreds of solicitor firms, the disintegration of the independent bar and the derailment of our criminal justice system. This story, however, doesn’t touch upon those ideals but rather, as what I fear may become in the brave new world of a post PCT environment.

The story starts some years ago and on the day of the England v Slovenia game world cup match. It was a sunny day in June, but far from sitting in the pub drinking beer and awaiting the match, I was driving up to St Albans Crown Court, on a late return to cover a 2-3 day making off without payment / dangerous driving trial. The facts were fairly straight forward. My client, a Mr Rochford, had been accused of filling up at the petrol station, making off without paying for the petrol and driving dangerously in his bid to get away. The issue was one of ID. The vehicle driving had its number plate captured by the automatic system at the petrol station, but that CCTV was of insufficient clarity to capture who was the driver of the vehicle.

After a quick review of the papers I thought this should be simple enough and just as I was thinking matters were going to be OK I came across the defence case statement. To say it was drafted badly would be understating matters. On any view it was deficient, on some views it was laughably deficient. Grateful that it was not I who had drafted it, I turned up at court, had a conference with my client and then entered court ready for trial.

I recall being taught at Bar school that our duty is to defend without fear or favour all of our clients but had little idea that the next two hours would demonstrate exactly what this could mean in the real world, down at the ‘coal face’. I was greeted by the Judge and told instantly that the defence case statement was deficient. I nodded. I was then told to amend it. I respectfully declined to do so. My problem was this. As matters stood, I considered the evidence against my client to be weak. Indeed, I considered it likely that a submission of no case at half time would be successful. The issue of the defence statement ought not to come into play given that either the case would stop at half time, or if it proceeded further, the client was not going to be giving evidence and so could not be cross-examined upon it. Had the defence case statement been amended matters would be very different. The prosecution could then apply to use the inconsistencies in the defence case statements as part of the prosecution case, which might of itself get the case beyond half time and would certainly be detrimental to the clients’ case. Again, the judge told me to amend it, again, I declined so to do. There then followed an exchange which has been seared, indelibly on my memory:

Judge: “Either you amend the DCS or you, and your client, will be sent down to custody.”

Myself: “Before your Honour makes good on your threat, may I have some time to speak to my lay client?”

Judge: “ That was not a threat but a reality. You may have 10 minutes”

10 minutes later I was stood in the small anteroom outside court with my lay client, having explained to him that we shouldn’t amend his DCS as to do so would harm his case, that if the Judge sent us both down then so be it. He then turned to me and said, “I don’t mind, I’ve done bird before and don’t want to get you in any trouble. We can amend it if it will save you any bother”. Fortified by his concern for me and mindful that this is what defending without fear or favour means, to stand up for your client, in the face of a judge and in the face of a threat of custody I re-entered the lions den. Leaning over to the prosecuting counsel to give him my wife’s telephone number in case things went bad was perhaps the most sobering experience of my career to date. I genuinely believed I was about to be sent down.

The point of the story is this. How are we to be assessed by Judges under QASA when our duty is to stand up fearlessly before them. How are we to engender our clients trust if they know we are trying to please the judiciary. How can it be right to impose a conflict of interest in our professional duty, on the one hand to do what is right by our client and on the other to try and keep our trial judges happy with our performance. Moreover, in the post PCT world, god forbid it ever gets implemented, can anyone believe that a Stobart in-house advocate would place his clients needs ahead of his production-line need to expedite a case, to risk custody himself over doing what is right for the client or to stand up to a judge and risk his “quality assessment” being removed. I don’t believe it and I hope it never gets implemented.

As to my story, well the judge backed down, at least overnight and the following day, a QC from the Bar Council attended and spoke to the Judge in his chambers. I was saved imprisonment although the judge did send my client down for failing to amend the DCS. After working through the night we appeared at the Court of Appeal the next day, where they granted bail to my client pending a full appeal hearing, which we duly won. (R v Rochford [2010] EWCA Crim 1928). As to the trial, that took place in front of a different judge and at half time, the client was duly acquitted.

Michael Turner QC ends his weekly addresses with the phrase “Do right, fear no one”. That phrase sums up to me, my duty in going the extra mile for my clients. I fear for a world when production line advocacy treats clients as commodities and where the person who is feared is ones manager who holds the monthly target quota over you in telling you, “you have to get 15 people to plead guilty this month.” I fear for a system where the Judges we need on occasion to stand up to, have the power to assess our performance and where one fears to take a point in case it reflects badly upon your ‘grading’. I fear for a future where because of the constant cuts to fees, the independent criminal bar is no more, and the Mr Rochford’s of the future will be represented by those with no backbone and no independence. For these reasons, amongst others, I say no to PCT and no to QASA.

Richard Bentwood