Déjà vu? The Criminal Bar in 2022

Us oldies always refer back to the comics Peter Cook and Dudley Moore, remembering when Pete turned to Dud and said, ‘I could ‘ave been a judge but I didn’t have the Latin’. I must confess that not only did I not have the Latin, but my French was little better. I made my way ad silvam, to the wood, to look for la plume that ma tante lost.

That said, recently I found myself employing a French expression at the same moment that Jo Sidhu QC, the current leader of the Criminal Bar Association, was using a different one. Mine was déjà vu. His was plus ça change.

Those who have followed my career avidly, other perhaps than the Bar Council and Her Majesty’s Revenue and Customs, will have noted that, having been in practice since 1976 through to 2017, I sat as a Crown Court Judge from then until my retirement in 2021. Perhaps what meant most to me was that I had the honour of leading the Criminal Bar in 2014 and the action of that period against the government (pictured above). The Minister of Justice was Christopher ‘Failing’ Grayling. I am sorry to remind us of his nickname, but his classic failing had been in his dealings with the criminal justice system. He was seeking to cut £220 million from a budget that had already led to many counsel being paid £46 a day. Not just long hours and poor pay, the Criminal Bar was ravaged by many other defects; notably a lack of diversity and support for those seeking to enter the profession from lower socio-economic groups. Of course, there was the view of some that ‘I am all right Jack’ (or Jacques or Jacobus if you haven’t got past the French/Latin above) from those who commanded well paid practices. But stumbling under the weight of it all was the junior end of the profession, barristers and solicitors who were going to the wall. Our demand of the government was to stop the cut and that was achieved.

Some time later, I packed my bags, including the model cars, paintings and soldiers that were to sit on my shelves in my room at court, in lieu (more French) of books and made my way up the M1 first to Luton and later St Albans. I also took Judge Wonky Glasses for my wig to sit on. Being a judge can be a cocooned life, but I strove to maintain my humanity and kindness throughout the period there, as well as being triple vaccinated against COVID, flu and judge-itis.

I re-emerged last summer into the dystopian world of the criminal justice system. It hit me like a sledgehammer. The most worrying features:

• The exodus of advocates. While I had been sunning myself in Herts and Beds, the Ministry of Justice (MOJ) does not seem to have noticed that up to 20% of criminal advocates had left; driven away by unsociable work patterns and a lack of proper remuneration. The £46 headline figure for a day’s work, such as a pre-trial hearing or an aborted case in 2014, had been overtaken by the National Audit Office spending review’s figure of £12,000 net for many juniors in the first three years of their practice. With their accumulated debt from studies, how could they live like this? And how would this promote access for those who weren’t born with a proverbial silver spoon or ensure wider future diversity in the profession? While their fellow pupils in civil/commercial sets may garner inducements of £60,000, pupils in criminal sets are lucky to receive quarter of that.
• I had watched the backlog of cases move from several hundred at each court centre in the 1980s to the current intolerable total of over 60,000. This wasn’t all due to COVID. Twenty three per cent of this backlog had been generated by the ridiculous idea of cutting court sitting days. While Latin and French in courts may be confusing, maths is simple. Every court in every building should sit with its own judge each day. Instead, with the obvious outcome of hurting advocates’ earnings, an arbitrary number of days appeared to be axed from the calendar. The ten-day fortnight became the eight-day fortnight. Don’t get me wrong. I am as happy as the next man having a day off, indeed some thought it was my raisin d’être (more French). But this was ridiculous. What this silly step started, lockdown finished, although with one positive feature. While trials could not be dealt with remotely, many hearings were done remotely. Judges were at last able to bring their attire into the 21st century, jackets and ties above screen, swimming trunks and flippers below.

Remote hearings accorded with the message that was being given to the Bar as long ago as 2015 by inter alios (Latin) Lord Justice Leveson who in a keynote address, ‘Modernising Justice Through Technology’, said: ‘Jury trial is not about to move to virtual reality – but much of the preliminary work will be done by everyone in their offices, retiring rooms, living rooms with all the participants being linked together.’

But having started down the road of taking non-trial matters out of court, the message that next came out from the MOJ was ‘get yourselves back in here’. It doesn’t matter that it’s inconvenient to most participating in the hearing, nor that it exposes judges without Perspex, witnesses with unshielded witness boxes and not even rudimentary testing for COVID, we at the MOJ expect you back.

These are truisms: backlog, remote hearings and exodus of criminal advocates due to poor remuneration, are linked and it follows so must be the solutions. Building more or grander courts and more prisons to house the increasing number of defendants awaiting trial is a false economy. None of these will replace the shortage in criminal advocates (and indeed judges) to undertake the work.

Remote hearings

Every day, every court is engaged in hearings that could be done by the equivalent of Zoom. Pre-trial hearings, progressing hearings and much sentencing are perfect for the digital age. The presumption of it being in the interests of justice to hold such non-trial hearings digitally should replace the test currently applied. The response from some judges that remote hearings are being requested to somehow ‘feather the lawyer’s nest’ must stop. This would:

• free up the courts to be available for hearing trials;
• convenience police, prisoners, defendants, advocates, observers and judges (who could conduct a day of such hearings from home, freeing up that court);
• potentially aid the advocate’s remuneration by enabling them to appear remotely on a number of cases per day rather than spending time and costs travelling to just one;
• release more advocates to sit as recorders (currently the same diminishing pool is being used to meet the shortfall in judges);
• reduce the backlog of cases.

Remuneration

The larger part of the solution would be to improve advocates’ remuneration and attract them back to work in the criminal courts. Poor earnings and large expenses have driven them away. As with HGV drivers, the only thing that will bring them back is a well-calculated system of pay. If the government is serious about its message of levelling up, then see what those in other areas of law earn; what their pupillage grants are. If not parity, at least a fair and realistic level of remuneration to reflect the responsibility they carry.

What I left in 2017, is the picture I find now – only worse. A government who does not recognise its own role in cutting sitting days pre-COVID, nor the lack of proper remuneration as major contributors to the backlog. A government that hides behind the fabricated idea that lawyers do not properly advise on credit for an early plea. An uninformed view that somehow civil and immigration cases have anything to do with the breaking point problems in criminal justice. This is Nothing Like the Truth.

So, I say déjà vu, I’ve seen it all before. Jo says plus ça change, everything stays the same. But it must change. This is yet another crossroads for criminal advocates – the government should heed that this could be 2014 all over again and remember that there is Nothing Like the Truth.