The criminal bar is becoming extinct – and we should be worried about it

Jeremy Hutchinson surveys the recent history of Britain’s criminal justice system, and finds much to be concerned about.

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N.B. This postscript to “Jeremy Hutchinson’s Case Histories” was written in March 2015

This book was conceived as something of a celebration of the practice of advocacy in the second half of the twentieth century. Now, in 2015, it may appear more as a valediction to a process that has successfully been brought to an end: a goodbye to an era now seemingly long gone.

I read the headlines “Is the Criminal Bar on the Brink of Extinction?”; “Is the Criminal Barrister an Endangered Species?”; “Is John Mortimer’s Rumpole a Dying Breed?” From my own limited researches the answer seems to be “Yes: indeed.”

When the chips are down, when executive power in the form of Lord Hailsham’s Elected Dictatorship – the whipped and docile party majority in the House of Commons – becomes excessive, all that stands between the citizen and the all-powerful state is the judiciary, the jury and the wholly independent advocate. To undermine the ability of the advocate to practise, to remove the advocate’s inde­pendence and access to the public is the first act of the autocrat as we see across the world. As Erskine said when defending Tom Paine’s book, The Rights of Man: “From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in Court . . . from that moment the liber­ties of England are at an end.”

In 2003 Tony Blair, supporting his autocratic and oppressive Home Secretary David Blunkett, without consultation or advice, sacked his protesting Lord Chancellor, Lord Irvine, and abolished the office itself. Thus, on the whim of an arrogant and power-hungry politi­cian the second greatest office of state was destroyed, after 800 years. The Lord Chancellor was the head of the judiciary: he sat in the Cabinet at the centre of power; he represented justice and the rule of law, and made sure that ministers respected that rule. He was a central pillar of our unwritten constitution.

Of course the presence of an unelected judge amid a group of democratically elected politicians was on the face of it an anachronism. But the modern “acceptable” replacement turns out to be but a puny shadow of the past: enter Mr Grayling, whose job before entering Parliament is recorded as “management consultant”, a transient workaday politician on his way up the political ladder, Minister of Justice with the title of Lord Chancellor. With no experience of the law, no knowledge of how the criminal process works, no understanding of the delicate checks and balances we have put in place over the last fifty years to bring justice to all people, exercising his ‘management’ skills has deliberately destroyed the present system and in doing so in all probability the proper functioning of the criminal Bar. Provision of legal aid has been reduced to a ridiculously small number of fran­chised providers. Rates of pay have been cut by 42 per cent and are based on the type of offence involved. Providers will now have a strong commercial incentive to brief in-house advocates to keep the fee within their own firms. Already 50 per cent of prosecutions in the crown courts are conducted by civil servants, and nearly 50 per cent of all pleas of guilty by in-house solicitors belonging to a new and woeful species, the “plea only” advocate. Now criminal barristers practise far less in the magistrates courts, where I learned my advocacy, and where so many unnoticed miscarriages of justice occur, and in parts of the country they only appear in the crown courts if privately funded. The Jeffreys’ Report, from which my figures are taken, says that advocacy standards have fallen and the courts are finding it increas­ingly difficult to do their job.

Mr Grayling also seized on the embryonic Public Defence Service (the PDS), consisting of salaried and pensionable advocates, which was set up in 2001. Run by his department, he has expanded it as a safe haven for independent self-employed advocates who can no longer afford to practise and young practitioners seeking security: a state prosecutor (the CPS) to face a state defender (the PDS) in a safe and cosy relationship. Independence, choice, competition will have no place in this new subservient and managed brave new world. Types of offence can never measure the seriousness of an offence. A teacher falsely accused of assault by a child, a black student stopped and searched at night and having drugs planted in his car by a dishonest police officer, a civil servant falsely charged with indecency in a public lavatory may all be involved with a minor offence, yet each faces devastation in their life and requires the services of an advocate of the highest skill to bring justice and salvation. Such skill may be far higher than that required in a simple case of murder or fraud and cannot be measured by the number of documents involved or the hours of work required. Further, it should be said this calling is not a mere “add on” to an in-house lawyer’s demanding work within a firm. It is a highly responsible and whole-time profession in itself.

The final blow to independence is QASA, “the Quality Assurance Scheme” which will require a five-yearly assessment of every criminal advocate’s competence, skills and suitability by the judiciary – the judges before whom the advocate performs in court. Not only will counsel now have to bow to the organization to which he or she may belong but also to the views of the presiding judge. The judge at a trial represents justice and for that reason, and not for his personal qualities, counsel defers to all the judge’s rulings in court and shows the judge respect. In all other respects the advocate is the equal of the judge and it is counsel’s professional duty to stand up to an interfering or over­bearing judge in the interests of the client. In future it may well be in counsel’s professional interest to toady to the judge to advance his career at the expense of the client. I cannot help but think that the response of F E Smith or Marshall Hall to such an unworthy proposal would have been to call for a QASA for the judges, managed by the advocates. I doubt I would ever have passed an assessment examination by the judges sitting at the Old Bailey.

Now we live in different times. As barristers’ chambers amalgamate and are run as businesses, as self-employed barristers increasingly join firms of solicitors and are allowed to have direct access to the client without the need to be briefed by a solicitor, it would seem inevitable that for all those either committed or confined to doing publicly funded work, the two sides of the profession must start to fuse. We will finally move to the American-style system that has for so long seemed to be on its way, and which we have so stoutly resisted. For those with wealth a small and no doubt elite private criminal Bar will survive to serve them. Indeed that section of the Bar may thrive. For those of modest means or low income, their lot, as in the States, will be to be prosecuted by the state prosecutor (for which read “district attorney”) and defended by the local Public Defence Service advocate or his near cousin, the franchised in-house advocate (for which read “public defender”). Do we really want a system in which the criminal advocate only serves the affluent?

No doubt the next target will be the jury, “a luxury that we can no longer afford”. Its privacy, it will be said, is no longer sustainable and the historic ban on all research into its deliberations will be described as no longer in tune with the modern concept of transparency. A recent attack has been upon the other consti­tutional process whereby the judges, on behalf of the public, hold government and other public bodies to account as to the legality of their operations – Judicial Review. Here Mr Grayling describes the process as ‘a promotional tool for countless left-wing campaigners’ and is happily trying to legislate to reduce its avail­ability in his own direct interest as a minister, causing Lord Woolf, one of the finest judges of my time and a former Lord Chief Justice, to describe his conduct as “contrary to the rule of law”, and adding the withering comment: “If the government had under­stood judicial review they could not possibly have brought in the changes to legal aid . . . I fear it is due to ignorance and it under­lines the need to understand what you are doing.”

Finally, because he stood in the way of the government’s plan to repeal the Human Rights Act, the experienced and competent Attorney General Dominic Grieve QC was removed from his office as legal adviser to the government and was replaced by a junior barrister: an ex-government whip, promoted from his job as Under-Secretary of State in Mr Grayling’s own Ministry of Justice. The new Attorney General was hastily made a QC, without having to undergo the lengthy and demanding qualifications process normally required by the Queen’s Counsel Appointments Selection Panel. Upon resuming private practice he will of course bear the magic letters “QC2 after his name.

I eye my eight volumes of Campbell’s Lives of the Chancellors and open Volume 1 to read: “No office in the history of any nation has been filled with such a long succession of distinguished and interesting men as the Lord Chancellor and Lord Keeper of the Great Seal of England.” I reflect upon the irony that this process of destruction has been managed by a minister of justice whose official oath requires him “to respect the rule of law” and “defend the independence of the judiciary” and “to ensure the provision of resources for the efficient and effective support of the courts.” Not only that, but one who has a duty also to uphold article 6 of the Human Rights Convention: “Everyone charged with a criminal offence has the following minimum rights: . . . to defend himself in person or through legal assistance of his own choosing, or if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

All this in the name of saving money. To save many millions of pounds the Ministry of Justice has only to attend to another area of its responsibility: the crisis in our intolerably overcrowded prisons. The prison population has now grown to over 85,000 (it was 46,000 when I retired). Each of these prisoners costs the taxpayer around £40,000 a year to keep. The ‘warehousing’ and humiliation of offenders in grossly full and inhuman conditions make meaningful education, constructive work, rehabilitation and self-respect impos­sible. It produces inevitable recidivism and lowers the morale of the overworked and dedicated staff. Governors repeatedly point out that they have to cope with thousands of inmates who should not be there at all: the mentally ill, the drug takers, those serving indeter­minate sentences under a law now long repealed, unconvicted defendants in custody awaiting trial for minor offences for which they clearly will not receive a custodial sentence. On top of all this costly new prisons are being built to absorb the relentless flow. Real prison reform calls for imagination, courage and determination; the dismantling of legal aid a mere stroke of the pen.

My profession has given me the most rewarding, enthralling and happy working life and I am sad to write this valediction. My words may be described by some people as those of a “foolish, fond old man”; the silence of the senior judiciary and in particular of the Lord Chief Justices gives some credence to this view. Nevertheless I hope that this book will interest and amuse the reader – and be a warning too.

“Jeremy Hutchinson’s Case Histories” by Thomas Grant is out now in hardback priced at £25, published by John Murray Publishers. It is also available as an ebook