You will never find a more wretched hive of scum and villainy – Institute of Barristers’ Clerks Conference 2014

Getting up at 5-00am on a Saturday morning to make my way to Leeds didn’t seem like too much of a problem. I had however forgotten the 3 or 4 large single malts I had decided to sink the night before. I was therefore a little groggy as I got to the train station however it appears I was not the only one overindulging as there was a chap sat sipping on a can of Special Brew waiting for the train to Skegness.

I was on my way to the Institute of Barristers’ Clerks annual conference to appear on a panel for an open forum Q & A session. Rather embarrassingly in my 23 years of clerking this was my first conference. In my early years up north the IBC conference was very London-centric. We would have been mocked for being whippet fancying, clog wearing, Northern monkeys and we would have sneered at their Chaz & Dave, £10 a pint, Southern wankery. More recently the IBC conference clashed with my wedding anniversary and me and Mrs NAB had a fondness for taking our big Summer holiday to coincide. I was however finally going to see what all the fuss was about and I was more than a little excited at the prospect.

I arrived to be greeted by the conference chairman the senior clerk of 37 Park Square, Leigh Royall, who I know from way back in my early days. Leigh kindly pointed me in the direction of the mountains of bacon rolls and vats of tea and coffee which went some way to dispersing my slightly woolly headedness. I wandered round the various event sponsors stalls and chatted to a few old friends, some of whom I had not seen for many years. Then without any direction from the organisers some strange hive mentality seized us all and we shuffled towards the first session of the day.

Leigh got us underway with his welcome speech which was witty, warm and blissfully short. Up next was the IBC Chair, Brian Lee of 20 Essex Street, who I had seen last at last years Annual Bar Conference. Stuff got a bit more serious now and Brian whipped through some of the problems that the modern barristers’ clerk has to face. Alistair MacDonald QC the vice chairman of the Bar took over the reins and brought more meat to some of the bones outlined by Brian Lee. For those who were in any doubt ours is a profession under massive strains brought about in no small amount by governmental “austerity” cuts and a rapidly changing market place.

Then it was time for the main event, the open forum! Well it was as far as I was concerned as I was on the panel. I was in fine company; Alistair Macdonald QC has stayed on to lend his view, Annabel Thomas from Enyo Law brought the view of the solicitors profession, Taryn Lee QC brought her fabulous shoes and dazzling smile (she knows a bit about family law too) and acting as moderator was Jayne Drake the senior clerk of St. Paul’s Chambers. Jayne wasted no time in introducing the panel to the rather hungover looking delegates. All was going as expected until she outed me! My secret identity had been stripped away and I felt naked and ashamed. Actually most people knew who I was so it wasn’t really a proper unmasking but it was fun watching Jayne squirm as she hadn’t run it past me first.

The first few questions passed me by and then Jayne pushed a question about the plight of the junior Bar my way. I’m a bit like Pringles, once I pop I just can’t stop. I rabbited on for a fair old while about self promotion, social media, public access and different ways to use vinegar to remove stains and odours. I was thoroughly enjoying myself, I was on my soap box and they were going to have to drag me off stage to shut me up. Thankfully for all assembled I ran out of steam.

In the short break for coffee I found myself in several fascinating conversations about the use of social media as a marketing tool. I was swapping war stories with the great and the not so good and having a jolly nice time. Why on earth had I waited 23 years!

With my contribution to the event as a speaker over I could settle in and relax to enjoy the rest of the conference. The next session gave us a delightfully entertaining speech from Robert Webb QC. There were too many highlights to mention them all but two classics stood out for me:

“brief fees marked on back sheets gave subtle bragging rights in the robing room”
“barristers, if you can’t market yourself then basically you’re a prat”

This speech brought back many happy memories of the way life used to be for barristers and clerks and gave me a lovely warm feeling all over. There was just time before lunch for a brief presentation on BARCO by Paul Mosson. It was very interesting if not quite as entertaining as Robert Webb QC. The escrow facilities offered by BARCO are drawing considerable interest from solicitors and this is a service which will be used by many as it’s benefits become more widely known.

Lunch brought a chance to get to press some more flesh and chat to clerks from Bristol, Hull, Northampton, Leeds, Manchester and that London. Everyone was keen to share ideas and stories and there was a wonderful buzz to the whole affair. The food was bloody good.

With barely time to draw breath we were into the afternoon workshops. I decided to sit in on Marketing your Chambers for the first session. This was led by Catherine Bailey from Bar Marketing and Hayley Eustace of the Legal 500. Both speakers were knowledgeable and enthusiastic and offered gems of useful information. There was another brief break for afternoon tea before we plunged into the final workshop. This time I wanted to see what the young ‘uns were up to so I decided on the Evolution of the Junior Clerk.

A quartet of sharp suited, tieless, fresh faced clerks faced a keen audience. Leigh Royall quipped later that it was good that One Direction could make the conference and I concurred with his pithy assessment. They all looked so young! Never judge a book by it’s cover. These lads were bright and sharp as a tack, even after a very late one enjoying the many pleasures of Leeds by night. Andrew Barnes of Wilberforce Chambers preached the importance of preparation and courtesy when dealing with fixing cases, Dan Sullivan of Tanfield Chambers waxed lyrical about the importance of networking and business development, Sam Collins of St. Philip’s tackled the thorny issues of fee negotiations and managing barrister’s expectations and Marc Goddard of Stour Chambers gave a more senior view of what makes a good junior clerk.

The future is bright if it’s in the hands of savvy, eloquent junior clerks such as these. To paraphrase Wellington I don’t know what other senior clerks think of them but by God they frighten me. Our conference chair closed proceedings and off we all dashed to the pub.

Things started slowly. A chat, a pint, a joke. Some bloke in a cat costume. Another pint, more jokes, more chatter. Then I was thrust into the company of the young ‘uns. A flock of quick talking, hard drinking baby clerks surrounded me and ushered me towards some sort of carousel of multi-coloured shots. Of course I had to participate, I was notabarrister. This sort of thing should be right up my alley. The fact that these lads were half my age and possessed of livers which had not had as many years of abuse did not cross my mind.

“You’re out now”
“You can stay with us, we’ve got an apartment”
“Nah you can’t get the train, you’re out now”
“Down that, you’re out now”

It appeared that my plan to get the train back was rapidly changing as I was now “out”.

Several pints and a couple of bars later and things had got a little blurry. I seemed to have lost my Fagin like following of young cockney urchins and with it my bed for the night. Sauntering into the next bar brought me back into contact with familiar faces. My bedless plight was quickly resolved again as another helpful sole pledged their floor or sofa. The alcohol evaporated from my glass as there was no conceivable way I was still drinking that quickly. Minutes passed in seconds and suddenly I was surrounded by unfamiliar faces.

It was 1 am, I was in a three piece suit, in the middle of Leeds, more than a little merry, I had lost all my mates and I had nowhere to sleep. Oh dear, thought I with a giggle.

As if by magic the BarSquared lads appeared. They steered me through the next few bars where we managed to catch up with the remaining hard drinking clerks. At some point we may have been asked to leave somewhere for dancing on the tables. I can neither confirm nor deny this but it wouldn’t surprise me. Following a hastily consumed burger I collapsed on a hotel room floor where I slept the sleep of the extremely inebriated.

The following day was painful but it hasn’t dampened my enthusiasm for this truly fantastic chance to spend some time with a congenial and hospital horde of barristers’ clerks. IBC 2015 can’t come soon enough.

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Do barristers need a chambers?

I read an article in Solicitors Journal titled – Do we need barrister’s chambers? The piece is by Adam Makepeace who is the practice manager of Tuckers one of the countries largest criminal firms of solicitors.  I’m going to steer clear of the argument over the Criminal Bar’s “deal” with the MoJ, which forms the background for the piece, as frankly I don’t know enough about it. Instead I want to focus on what the article is really about and this is contained in the last few paragraphs and the title of the piece.

The title is a little misleading. I think it should really read – if barristers didn’t spend so much money on overheads they don’t need then they could share some of the fees they get paid for doing the advocacy that we work hard to get and then have to farm out to them as they have got the expertise that we need to use, well at least for now because soon we will just share work between ourselves and cut out the Bar altogether. That however isn’t nearly as snappy a title so I can understand why the writer went for something shorter.

Why do criminal solicitors brief barristers? There are three reasons.

The first is the expertise of the Criminal Bar. As Adam points out the increase in number and quality of Solicitor Higher Court Advocates (HCA) has taken some time and there are probably still not sufficient numbers of exceptional HCA to undertake the most challenging and complex of cases. Solicitors need to have a pool of experts to send these cases.

The second is client choice. Some clients will request a specific barrister. Repeat (alleged) offenders and those from unfortunate families who seem to find themselves the target of malicious prosecutions may have a chosen brief or briefs¹.

The third is as temporary staff or agents. If, on a particular day, a firm has 5 HCA who are all in court and the firm picks up another case they may need to return the brief to a barrister. The vagaries of court listing with warned cases, last minute additions and overrunning trials can cause havoc with a firms diary and there will always be a need to outsource work often at short notice.

In the first two scenarios a firm would almost certainly still require there to be criminal barrister available to take these cases. In the third scenario firms cross-referring clients to each other could well be a possibility. There would however always be that fear that the firm who stand in as agent may convince the client that a transfer of legal aid may be in order. Barristers can’t do that and that has always been a big selling point in briefing barristers as agents.

Let us assume that no solicitors firms will pinch each others clients and they all live happily together covering each others cases². That still leaves solicitors needing to brief barristers for some cases. Do those criminal barristers need a chambers?

The answer is – No, Yes, Maybe.

No – they don’t need a massive property to house all of the barristers. A clerks/admin room and a storage/coffee room could potentially suffice.

Yes – they do need an administrative staff. Part of the attraction of a barrister’s chambers for solicitors is the single access point for many barristers. One phone call to a clerk can give you access to anything from half a dozen all the way to a gross of skilled specialists. If a solicitor is desperately trying to find cover for a trial which has just been added to the list is it easier to make one phone call to potentially access 50 barristers or 50 phone call to access 50 HCA.

Maybe – some chambers are already moving away from the traditional setup and moving to a more virtual presence. Maybe the chambers of the future won’t have a physical office space. Maybe the admin will mostly be run by Max Headroom type virtual clerks. Maybe you won’t even have to call the chambers, maybe you just think it and a barrister is booked. Whatever happens there is always, even with the myriad of technological marvels available, a need to have a real person to talk to. Clerks or Practice Directors or Team Leaders or Cutting Edge Legal Facilitators³; it doesn’t matter what you call them but there will be a time when you need one.

One final thought on referral fees. There is reference in Adam’s piece to barrister’s paying 20% of their fees in expenses. That gives them a profit margin of 80%, not bad. However this also includes no sick pay, no holiday pay, no pension, no guaranteed income. The 20% quoted is probably a fair average in terms of chambers expenses but then barristers have other running costs; travel, accountants, legal reference materials (alright it’s probably just Archbold but it isn’t cheap), practising certificate, professional indemnity insurance etc. Solicitors criminal firms have average profit margins of 5-6%, at least according to the MoJ’s impact assessment on the legal aid cuts (which they then set at 17.5%). It is therefore easy to see that when solicitors need to outsource advocacy, from a simple financial perspective, it is far more attractive to brief HCA as they can share the fee. For barristers this is strictly verboten as this deemed to be a referral fee.

I don’t like referral fees. It’s paying for work. It means work doesn’t necessarily go to the best person for the job, it may well go to the one prepared to do it for the least amount of money. That to me just doesn’t seem right.

 

¹I could probably say something about client choice but that would be countered with the late returns argument which would be countered with warned lists/overrunning case. It’s all a bit boring so we will just leave it there.

²Probably whilst riding to court on unicorns across rainbow bridges whilst drinking ambrosia from Kelly Brook’s bra.

³@jezhop

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That can’t be right I can earn more than that…….

I got a taxi back home from Chambers tonight. The driver asked what I did for a living so I explained I am a barrister’s clerk. What follows is our conversation as best as I can recall it.

I saw on the telly they’re on strike because of cuts.

That’s right they have had 40% cuts since 1997 and Government wants to cut their fees again.

They shouldn’t keep putting their fees up.

No, it doesn’t work like that Government fixes the rates they are paid.

So how much does a barrister earn a week.

Well a legal aid criminal barrister on average according to Government grosses just over a grand a week.

Wait, that can’t be right I can earn more than that.

Oh there’s more, from that they have to pay VAT, running costs, expenses, income tax etc. They are lucky to take home half that figure. Most solicitors firms doing crime have profit margins of 6-10% the cuts for them are 15% they will all be out of business in weeks.

But I thought all lawyers were rolling in it.

Some earn very well out of criminal law but they are the very best, they have worked for years to hone their skills so they do the biggest most complex cases. The big money is in company, commercial and tax law those boys can earn mega bucks.

The country is in a right state so I suppose we all have to take a knock but I never thought barristers earned so little.

Well the cuts are a joke really. The Government has cut funding from the courts, probation and the CPS for years. It means that cases often go on for far longer than needed and what is really needed is a  big shake up of the system.

Well why doesn’t the Government do that?

Because it requires investment. The will have to put money in in the short term to save costs in the long term.

The whole thing is mad. Why do barristers and solicitors do it if they earn so little?

And why do they do it? It isn’t for the money. They do it because they all know that what they do is the right thing. That they speak for those without a voice. They ensure that the state is kept in check and does not abuse it’s powers. If you don’t think that this is a problem you only have to watch the news tonight.

I asked the taxi driver if he was to have a crash tonight and someone died as a result would he want to be represented by an experienced team of lawyers who would fight his case or the cheapest possible option that could be found.

See if you can guess what his answer was.

 

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How I became a barristers’ clerk

In my last post I promised to reveal how I became a clerk. Prepare yourself this is not for the faint hearted.

Trigger alert – there are some very bad puns and a reference to prog rock in this post. Please don’t read any further if this may cause you distress or discomfort of any kind.

My own story is a turgid tale which twists and winds around itself like the cheap headphones in your pocket.  I had wanted to be a chemist, not the sort who sells packets of three to blushing acned adolescents. I wanted to be mad professor surrounded by test tubes of bubbling liquids and bunsen burners, a modern alchemist looking to turn my efforts into gold. Sadly I didn’t have a high forehead and a mass of frizzy hair1 nor did I have the work ethic at 17 to apply myself fully to Maths, Chemistry and Physics A-levels. This is back when A-levels were hard, not these A triple stars that you get nowadays for spelling your name correctly on the exam paper.

After a year of A-levels and a stern word or fifty from my tutors I decided that further education wasn’t for me and I would therefore get myself into the working world, earn a crust and become a man. That didn’t initially turn out too well. Prospective employers saw someone who was either too bright and would in all probability leave to seek further education or else someone who was not bright enough and under qualified. I ended up taking whatever work I could find to try and pay my way. I did some painting and decorating in a retirement home and had a brief spell in retail selling model railways and scalextric. I also worked at a picture frame factory where the fruits of my efforts were sent on to Athena to mount that picture of the blokeholding a baby so beloved of teenage girls in the early 90’s.

Whilst there were enjoyable aspects of all these different jobs there was definitely something missing, though I was buggered If I knew what it was. A friend suggested getting into law, you could get on the job training and become a legal executive. I had no idea what that meant but it sounded cool so I switched my focus to the legal recruitment section of the local newspaper. I had a couple of interviews but I have always been a somewhat overly confident soul3 and it seemed that solicitors weren’t looking for someone of my mien.  Then one glorious day I spotted something slightly different – Office Junior required for barristers’ chambers. In my younger years I had watched Crown Court at lunchtime at my Grandma’s with pie4 and chips and mushy peas. I had also seen and read Rumpole of the Bailey. What a cracking bit of fun that all looked.  I duly applied and was invited to an interview.

I am not a cockney barrow boy and I work in what what London clerks call the provinces i.e. everything that isn’t the Temple. The chap who interviewed me, the senior clerk, was a cockney. Initially I struggled to understand what he was saying but after a few minutes I started to grasp the thread, it seemed that watching Dirty Den and Angie war in the Queen Vic had been useful after all. It all seemed to be going well, not brilliant but not awful. He asked if I had any questions. I didn’t but I did declare that I didn’t have a criminal record. He said he did but it was by Rick Wakeman. I asked if it was the same Rick Wakeman who was in Yes.

That ladies and gentleman is how I got the job! I  knew who the long haired keyboard playing prog rock legend was, who had released an album, which was wittily called Criminal Record, which had been purchased by the senior clerk who was now my new boss. I don’t suppose this actually counts as careers advice but it worked for me.

My early years of clerking involved lots of running around collecting and delivering a whole host of different things. In addition to the normal things you would expect a junior member of staff to move around (post, banking, stationery, sandwiches etc) there were also some more unusual things. Wigs and gowns frequently needed to be rushed down to court. I never quite understood how a barrister could go to court without them, imagine a plumber turning up to a job without his tools. I often had to go and pay barrister’s personal bills – gas, electric, phone and wine merchant were common. For one particular barrister it was a regular trip to purchase a packet of small foul smelling cigars called Agio Meharis. When not running hither and thither with an armful of briefs and a couple of red bags5 over my shoulder I would be expected to make enough tea and coffee to sink a small flotilla of racing yachts. I was plunged into the bizarre middle class world of the cafetiere, at home we just had Mellow Birds. I can’t actually remember anyone showing me how to use the blasted contraption but someone must have otherwise I would have just thought it was a posh teapot and shoved in a couple of bags of Tetley’s and boiling water. I was not allowed anywhere near the management of the diary or the agreeing of brief fees for many, many years. I was however thrust into the magical world of listing meetings. This is a topic all of it’s own and I will explore it in more depth in a later post.

I was soon exposed to the often puerile humour of the clerks’ room. My favourite running joke revolved around the manner in which one particular barrister would ask what was happening for the following day.

Mr. Niedermeyer – Position tomorrow?

Baz – I’ll just check sir *hand held over the mouthpiece so that the following could be announced loudly to the room* Handcuffed to the bed, blindfolded with a broom handle inserted in his rectum

All of the clerks – Guffaw, chortle etc

Trev – Tell him he’s got a backer trial at Mold Crown Court the papers are being faxed

Baz – Oh not faxed. It will take hours and the bloody paper curls up and jams……….

We would take great joy in trying to outdo each other in the outlandish nature of the positions we could think up. My old senior clerk had one brilliant gag which he rarely got the chance to use but when he did his timing and dead pan delivery was immaculate.

Mr. de Vier – Trev I have just seen my diary for tomorrow,  surely this sort of thing doesn’t need  someone of my seniority.

Trev – Not sure I know what you mean sir.

Mr. de Vier –  Driving without due care in Halifax Magistrates! Due care Trev!

Trev – ‘Course I care sir.

There was one gag which was solely the reserve of the more junior clerks.  There was a long running case in which the plaintiff was call Mycock. The case had been running for quite sometime and so the papers were voluminous. This was a goldmine of hilarious silliness which provided much entertainment for all concerned:

After a junior clerk failed to find the brief in a barrister’s room – “what do you mean you couldn’t find Mycock, its massive”

When the case had to be returned to a relatively inexperienced female barrister – “do you think Ms Wallace-Jones can handle Mycock”

When the case was moved by the court on several occasions in a short period of time – “Mycock just keeps going in and out”

In amongst the humour and menial tasks I learnt a great deal and my grasp of the law grew rapidly. I developed a taste for red wine thanks to the Agio Mehari smoking eccentric who thrust a bottle of claret into my hand one Christmas. My friend and I polished it off after a session in the local pub not realising that it was £20 a bottle (this was in the early 90’s!). I had also found that thing I was looking for, a career. There was something about clerking and barristers and the courts it pulled me in and wouldn’t let me go. Not that I would have let go. I had found my purpose and my place and I never looked back.

¹An amalgam of the Tefal man (Google it) and Professor Emmett Brown
²I saw that bloke in a documentary years later, he stopped washing and said his natural scent was far more pleasing on the nostrils. Sorry if that has ruined any teenage fantasies but he does now in all likelihood smell like a rush hour tube in August which has been stuck between stops for an hour.
³ Cocky bastard
4 Holland’s pies, none of this Pukka crap you all put up with nowadays. There is no finer chip shop dining than a Holland’s steak and kidney pudding, chips, peas and gravy in a tray, fact.
5 Barristers carry around their wig and gown in a blue damask bag, if they have been led by a QC it is traditional for their leader to buy them a red bag. This enables the lucky barrister to show off and cock his snook at all those who only have a blue bag.
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How do you become a barristers’ clerk?

One question I am often asked is “how do you become a barristers’ clerk?” not “why” which to my mind would seem a more appropriate question to ask. When I first started clerking the most common career path was to start at the bottom and work your way up. Now there are many different routes available to those who wish to become a clerk. As times have changed  so has the clerk’s role. There used to be only two types of clerk; senior clerk and junior clerk. Now there are many variations on the originals, clerks with very specific responsibilities for some portion of the smooth running of chambers. There are fees clerks, marketing clerks, conference clerks, team leaders, CEOs, practice managers, directors of clerking and even the lesser spotted warbling clerk. The mind truly boggles.

This wide range of new roles requires different skill sets from those of the traditional tea boy done good. It is now possible to become a clerk without necessarily having done the traditional apprenticeship of yesteryear. I personally think that if you want to understand the whole job that you should start at the bottom and work your way up but I can also see how those with different experiences can ultimately add to the clerking profession.

Back in the mists of time all barristers were based in London and traditionally all clerks originated from three families of market traders from the East End¹. New clerks would normally be sourced from distant branches of the aforementioned three families. A senior clerk’s  second nephew twice removed on his mother’s side by marriage had just left school and was looking for a job and have you got anything at the moment. Poor Trev/Bob/Dave would take the scrawny scruffy distant relative and shove him up a chimney in the Temple and hope that when he came out, by some strange clerking osmosis, he would have learnt enough to be of some use. It was also hoped they would have ditched the ghastly white socks.

Young Baz/Daz/Chaz would be expected to do a whole host of menial tasks whilst slowly learning new skills. These would be as diverse as lighting the fires, making tea, waking up old Mr Fortesque when he nodded off in the library, fetching Mr Ponsonby-Smythe from the wine bar as he was late for court and a host of other exciting jobs. Eventually Young² Baz/Daz/Chaz would be allowed to touch the diary though he wouldn’t be allowed to write anything in it, just touch it. If he managed to make his accent into something vaguely recognisable as the Queen’s English he would possibly be allowed to speak to people.

As barristers realised there was a world outside of London they gradually moved out of the capital and set up chambers across the whole of England and Wales. Usually the new chambers would recruit a proper London clerk luring them with the holy grail of 10% clerks fees. There was also the promise of a cost of living which appeared to be at pre-war rates when compared to London.  It was not really viable to rely solely on the extended families of the senior clerk, as to drag young Baz/Daz/Chaz to the wilds of the frozen north³ was not an option. Slowly but surely the gene pool of clerking grew.

There was much snobbery in clerking, though it has been ground slowly down by the shifting sands of time, and some of those who originated in the Temple still look down upon those who did not. I was not born within the sound of Bow Bells nor do I know the lyrics to all of Chaz and Dave’s back catalogue. I pronounce my aitches and try as I might I cannot make grass rhyme with arse. In short I may well be deemed a lower class of clerk. I do however have one saving grace, all of the senior clerks I have ever worked for all started in the Temple. Because those most venerable of clerks who have been around for some time still originate from the three families then in all likelihood I have at some point in my career worked with someone related to them. That makes me practically family (please don’t read that last word in an Eastenders voice, too late).

If you are considering a career in clerking or if you have second nephew twice removed on his mother’s side by marriage who has just left school and is looking for a job then I can heartily recommend clerking. You work long hours and get little in the way of thanks. The wages aren’t great until you get to first junior level and that can take years of hard graft and a healthy chunk of good luck. Barristers can be the most difficult, infuriating and capricious swines to work. It’s stressful, it will leave you with an alcohol dependency and you will wonder why on earth you do it. You will never be bored, you will meet some amazing people and some incredible characters. If you like people and you work hard, can think on your feet and can pick yourself up when you are knocked down you will be one of a very small number of the population who can call themselves a barristers’ clerk.

To answer the question that gives this piece it’s title I would have to rely on my own personal experience. How did I become a clerk, well that’s a subject which needs it’s own blog post………

¹ I may have slightly distorted the truth here but you get the drift.
² Young is an actual title which you only lose when you move up the ranks. When you have a more junior clerk below you they inherit the Young title.
³ Anywhere north of the Watford Gap.
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Broken glass. It’s just like glitter, isn’t it?

The furore that surrounded the leaked CPS e-mail which revealed that they were putting costs savings before justice has died down a little. I put forward my own thoughts on this embarrassing revelation in my last post The Truth is Out There. I promised a follow up which would look at how I think the situation could be improved. Just in case it isn’t obvious that forms the subject of this post.

Before I wander off into my own thoughts I ought to set out how I see matters:

  • The CPS are committed to using their own advocates because it saves money, they aren’t about to do a huge u-turn.
  • The CPS have been subject to the same swingeing cuts that all government funded agencies have and cannot throw money at their problems to resolve them. 
  • The CPS can point to the savings they have made of proof of the effectiveness of their strategy but I think there are knock on effects causing higher costs elsewhere in the criminal justice system which have not been quantified.
  • The criminal justice system is in a sorry state due to cuts, poor high level management, poor use of technology and a host of other issues.
  • The way advocates are remunerated does not work as it should.

When I first started clerking, the CPS operated in much the same way as solicitor’s firms. Case workers handled the preparation of the case and instructed counsel at the very outset of the case. The CPS grading system meant that cases were properly allocated to a barrister with the correct level of experience and skills to handle the matter. There was therefore a team allocated to run the matter through the court process; the case worker and the barrister. If the barrister failed to properly prepare, performed poorly at court or frequently returned cases with little notice then that barrister would find his work from the CPS suddenly drying up.

Now it appears that the CPS use their in-house advocates to deal with the vast majority of the initial crown court hearings (plea and case management hearings or PCMH). The cases are not allocated to a specific advocate and so are often poorly prepared prior for trial. Because the case may only be allocated to an advocate the day before a trial it allows little time for problems to be rectified and this can cause wasted court time as cases have to be adjourned or else are dealt with by a very late guilty plea (known as a cracked trial). If an in-house advocate performs poorly there is, at least from the evidence I have seen, no sanction for poor performance.

The report by HM CPS Inspectorate of March 2012 has much to say on this subject:

  • Effective preparation for trial is important in every case.
  • The original Bar/CPS framework committed the CPS to identifying cases that are likely to be contested and selecting the trial advocate as early as possible, preferably 14 days before the PCMH to ensure advisory work and case preparation can be undertaken.
  • Where counsel is instructed they should wherever possible conduct the PCMH.
  • These key principles are only adhered to in the most serious and complex cases.
  • Only a small percentage of cases are allocated with any consideration of continuity of advocate.
  • A high proportion of PCMH are covered in-house, work is often allocated the day before the hearing.

The report also states that the training and development of in-house advocates is not what is should be. The crown advocacy training for in-house advocates in 2010-11 saw only 45 reach the required standard from a field of 248, a failure rate of 71%. The course is supposed to teach the minimum standard required but is seen by those who attain it as the only way that cases should be presented. This produces “formulaic, mechanical advocacy which is dull, lacklustre and repetitive”. When considering the importance of the presentation of a case to a jury this is a fundamental problem. Ongoing development via in-house training is erratic depending on which local CPS office is involved and 35% of in-house advocates felt they did not have sufficient support with a worrying 10% feeling that they lacked the necessary skills to perform the role. There is a limit to what you can learn in the class room and the report points to the need for in-house advocates to undertake more trial advocacy. This however does not happen and what little is learned from in-house training is seldom tested in practice with in-house advocates completing on average less than four effective trials per year.

This is where the Bar truly excels, in it’s initial and ongoing training. Throughout pupillage a barrister will see a vast range of cases and advocacy styles. Pupils review case papers, prepare advisory documents, attend advocacy training courses run by the Inns of Court and learn on the job. During the second six months of pupillage they will undertake lower level cases, usually in the magistrates courts, to put into practice what they have seen and been taught. Gradually as they gain experience and skills they will progress onto more complex cases and start to appear more regularly in the crown court. Surrounded by colleagues with vast collective experience, a junior barrister will learn from all around.

The effect this lack of proper training and development is clear and the report offers these observations:

  • There has been an overall decline in the performance of in-house advocates dealing with non contested hearings, primarily PCMH, since 2009.
  • In-house advocates were not adept at identifying what information a court would require at a non-contested hearing or anticipating what questions a prosecutor might need to answer.
  • In-house advocates frequently fail to be of any real assistance in sentencing, leaving the dialogue to defence counsel and the judge.
  • The acceptance of inappropriate pleas was an area of concern, particularly in relation to recording of basis of plea.
  • In trials opportunities are missed during cross examination and speeches.
  • There are failures to challenge clearly inadmissible and prejudicial evidence.

This presents a fairly bleak picture. Work is poorly prepared and allocated in such a way that it is near impossible for an advocate coming in at the last minute to properly prepare and rectify any problems. In-house advocates are not as well trained and mentored as the Bar and the standards of in-house advocate’s skills are declining creating a greater gulf between the two. Just to really hammer the final nail in the coffin the report has this to say on the a hidden impact of the way work is allocated “the junior Bar is suffering now from inexperience and they are not all developing as quickly as they should . The effect of reduced agent usage in the magistrates’ courts and the limited work at levels 1 and 2 in the Crown Court is beginning to show in terms of the quality delivered”. The way that work is allocated is failing to develop in-house advocates and the junior Bar which in future will inevitably mean lower standards of prosecution advocacy.

Leaving aside the obviously higher standards of training that the Bar provides, what is clear is that the management of the allocation of CPS work both to in-house advocates and to self employed counsel is deeply flawed. I think I have spotted what the problem is and it is so very simple, the CPS don’t employ barrister’s clerks.

Clerks manage diaries to ensure that wherever possible the instructed barrister retains the case throughout. Clerks harry, harass and harangue crown court listing offices to do all they can to make sure that counsel who dealt with the trial can attend at the sentence. Clerks allocate work based on the skills of the barristers they have available and when it is clear they don’t have someone with the right skills they find someone from outside chambers who does. Clerks gently nurture barrister’s careers; starting slowly with summary trials and traffic courts, moving on to crown court appeals, mentions and sentences, progressing onto low level crown court trials such as thefts, possession of drugs and ABH, incrementally guiding a barrister to the most complex of cases.

The CPS need clerks. Real clerks with an understanding of how to manage a diary and how to allocate work to make costs savings whilst at the same time progressing careers and ensuring that justice is properly served. Maybe the CPS could grow their own as they are attempting to do with in-house advocates, but initially they need some external assistance.

The CPS and the Bar need to get together and plan how to unravel this messy tangled ball of poor management and mistrust. A transparent plan which tells all how the CPS and the Bar will work together on ensuring that the prosecution of cases will focus on being cost effective whilst at the same time ensuring that all who prosecute are highly proficient. The need for succession must be addressed and future in-house advocates and self employed barristers must be certain of a future which ensures both have the tools to the do the job and access to the right sort of work to allow them to progress. Some joint commitment to training with in-house advocates being sent on some form of non-practising pupillage in chambers. Pupils could go to the CPS on secondment and learn how crown prosecutors do their job to better understand the processes involved.

Some of the problems the Bar and the CPS face with the allocation of work and the continuity of advocates are caused by the court service. By working together with the courts a better system of case management could be developed to ensure greater continuity. The judiciary would doubtless be keen to have well presented cases before them and would lend their weight to any well considered proposals.

The DPP has quite rightly got egg all over his face due to that e-mail and the disastrous CPS strategy it has revealed. The Criminal Bar Association rather than pointing and laughing should hand him a towel and extend the hand of friendship. Only by working with the CPS will the criminal Bar be able to ensure that the future is not bleak for those who prosecute.

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The Truth is Out There

Criminal barristers have long discussed the conspiracy theory that the CPS creams off the good and the easy for it’s own in-house counsel and farms out the low end and the messy to Bar.  This is however not some crazy theory borne of the heat oppressed brains of the paranoid Bar, there is actual documentary proof that this is CPS policy. (Taken from an article from CrimeLine).

The Criminal Bar Association are quite rightly up in arms about this as can be seen from their blog post – The Culture within the CPS exposed.

The DPP has  in turn promptly responded:

“The e-mail in question should not have been sent and categorically does not reflect the CPS policy on allocating cases to advocates. The circulation of the e-mail was small (about 43 recipients in an organisation of over 6,000 staff), it only covered advocates dealing with cases in North London Crown Courts and its existence was short-lived (it was dated 15th January 2013 and was withdrawn on 19th February 2013). I have had assurances from all Chief Crown Prosecutors across England and Wales that no such or similar scheme has been operated elsewhere in the CPS. I am disappointed that the e-mail was sent and I have assured the Attorney General, the Bar Council and the Criminal Bar Association that I will ascertain how it came to be sent and revert to them on the matter.”

At first blush it seems a storm in a tea cup. No need to panic, some maverick Crown Prosecutor has gone bonkers, hardly anyone really saw the e-mail anyway, nothing to see here move along. I repeat the words of the DPP that it “categorically does not reflect the CPS policy on allocating cases to advocates.”  That clears all that up then.

Well it would if it was only evidence of a standard CPS approach to maximise cost savings by unethical management of the allocation of work.

In a report by Her Majesty’s Crown Prosecution Service Inspectorate dated March 2012 the true nature of the impact of the CPS policy is laid bare:

  • The advocacy strategy has delivered net savings of approximately £26 million across the last five years
  • Crown advocates are not managing to develop their experience of trial advocacy in part due to ….. the high levels of cracked trials on the day in the cases allocated to them 
  • The average number of effective trials completed by a crown advocate is less than four a year
  • There are failures to challenge clearly inadmissible and prejudicial evidence
  • A number of advocates still have an over reliance on case notes, this can have a negative impact on the conduct of the trial
  • Legal submissions are not always timely or supported by reasoned oral argument
  • The continued focus on financial savings has resulted in …… late instructions to self-employed counsel who do not have time to remedy poor preparation

In short according to HM CPS Inspectorate the CPS advocacy strategy saves money but at a cost to quality and a failure to improve the skills of crown advocates. The report details a long list of recommendations and also takes a long  look at how effective the cost savings are in reality.

The cynics may say I only picked out the points out of the report that assisted in proving the theory that the CPS are choosing cost over quality. The same convenient editing could also be said of the DPP who responded to the report stating:

“The report rightly highlights our commitment to quality advocacy and a number of areas where the CPS has improved this quality. Our increased use of in-house advocates has resulted in significant savings since 2006 and at the same time the overall quality of advocacy has remained high.”

It’s a bit like those DVD boxes that say “truly gripping” but the full review said “the only truly gripping part of this film was whether I would stay awake until the end”.

What is clear is that the quality of advocacy and case preparation is sacrificed for financial saving and this is commonly happening in more complex cases. Cases which are likely to crack are retained in-house to save costs but this hinders the improvement of crown advocates. This knock on effects are many but the most important is that justice may fail to be done.

N.b. I am a clerk and as such I always like to look for a solution rather than just pointing the finger. I am therefore working on a follow up piece where I look at how things used to work and how they work now. If you have read any of my previous posts you will know that I have a fondness for looking back and comparing the past to the current. I will also throw my hat into the ring and offer my own humble opinions of how I think things could be improved. It may however take a while to collate my various thoughts together so this follow up may be a few weeks away.
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