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Saturday, 23 June 2007

Some Issues for the New A-G

As Peter Goldsmith goes, it seems apposite to take a moment to reflect on the main issue for his successor which affects the Bar - the 'world-class prosecuting service' which is (allegedly) the CPS.

This is not a post about competence. Apart from anything else like discretion or tact, 2 things hold me back here. First I have a practice and Myersonettes need - nay demand - shoes, usually by the truckload. Second, Mrs M is a Crown Prosecutor and I retain a healthy respect for the integrity of my body parts (I ought to add, lest some of you were having unkind thoughts about my sources of income, that in 21 years of legal life together, Mrs M and I have adhered to a pact made when we were young and idealistic and she has never, ever, briefed me. Life is quite stormy enough without having to exchange full and frank views on the quality of the Brief or the sufficiency of the cross-examination over breakfast. But I digress).

The CPS is pursuing 'vertical integration'. That is to say, for those who do not speak corporatese, that the same lawyer does the pre-charge advice, charges, sees the case through committal and then prosecutes it in the Crown Court. I profoundly disagree with the concept. Mainly because in promoting 'ownership of the case' the CPS is promoting something which seems to me to be inimical to justice. Cases should not be owned - they should be dispassionately prosecuted. And that means an objective look at the strengths and weaknesses, which I fear they will not receive when an individual's end-of-year assessment is bound up with whether there is a conviction. It encourages failures to disclose, less than comprehensive reviews of unused material and tensions between the Prosecutor's duty to 'their' case and the duty to the Court.

I stress that I do not regard CPS lawyers as either incompetent or dishonest (see above). I would make the same comments if the idea was that the same barrister - not employed by the CPS - had the same role. Or if the defence functioned in an equivalent manner. The old bird on the top of the Bailey has her eyes bound for a reason. She is not bothered about who it is or what it is - her only concern is holding the scales so they are exactly horizontal until the tribunal of fact decides the case.

I do not believe that the CPS can be a world class prosecuting service if its aims are not first and foremost to achieve justice. However good the people and however good the systems, if they, rather than the pursuit of justice, are the main event then the focus is lost. It simply has to be the case that everything else must be subordinate to the need to achieve justice as best we can.

And, whilst I'm at it, I also believe that one mistake is too many. In an adverserial legal system (still the best option - a post for another time) there are lots of things that can go wrong. Witnesses can lie; investigation can be incompetent; barristers can be stupid; juries can be insane; judges can let their opinion show (or worse conceal their opinion and let it show only under a cloak of pretended objectivity). But all those things are human error and the system is designed to try and eliminate them. Vertical integration is a different issue: it inserts into the system a designed area of difficulty and tension that will inevitably lead to failure. Then what do we say - 'whoops I owned the case so entirely that I wouldn't let anyone else even look at it, let alone tell me I was wrong. Sorry.'?

I have talked about this to people with responsibility for it. They suggest two justifications. The first is job satisfaction for CPS lawyers. The second is budget. I believe these are the same answers. Job satisfaction is predicated on the basis that CPS lawyers want to prosecute as advocates. Some certainly do - but not all. And for those who do, the number who also want to give the pre-charge advice etc is vanishingly small. The CPS is aiming at the bar - offering interesting to work to those who might not get it in their current job. And they are doing it because Higher Courts Advocates (HCAs in the jargon) are cheaper than having to pay the Bar what Carter says is a fair sum for the work we do.

So, how much is this country prepared to compromise so that the new A-G can say that he has reduced the money spent on fat-cat lawyers? If the answer is that the costs are more important than the results then the Criminal Bar is in danger.

With that in mind, I also wish the Bar would think harder about pronouncements which satisfy some sense of moral righteousness but which, on examination, seem to me to be shallow and selfish. Specifically I refer to people who 'only defend' or 'only do work I believe in'. We are not supposed to believe in our clients - we are supposed to represent them. We are hookers, not lovers. And, if it's ok for barristers to only do work they believe in, then why shouldn't CPS lawyers 'own' their cases?

Moreover, every barrister who only does work they believe in, is taking advantage of a professional colleague who will accept whatever comes along. The irony being that it is the former who parade their consciences as if they were entitled to kudos (and who obtain the work of that band of solicitors who believe that the barrister must be on the side of what they define as the angels and against what they define as the bad guys).

Next, we have to address our minds to how we can reduce costs and deal with competition. There are genuine issues there and 'they shall not pass' is about as effective a defence as a chocolate teapot. Are we really such poor advocates that we can be manipulated into a defence of our position in which we happily cast ourselves as the self-interested party?

I am fully aware that this is kicking against the pricks. But most of my readers are still to make their minds up about this issue. And if I can influence you, then there may come a time when we can reverse what is looking distressingly like a trend. It is all I can do, it being surpassingly unlikely that there will ever be an Attorney-General Myerson known to history.

There are lots of issues wrapped up in this - for example the definition of a 'successful outcome' forced on the CPS and the Government's political agenda regarding more convictions. Whether I address these things in detail depends on the response - there seems little point in talking about this unless you want to read about it. Let me know.


Troubled barrister said...
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Poppy said...

I would be interested to read more, even if not to comment (Criminal law not my speciality), so please write on!


Mr Pineapples said...

Just one comment to make - I could make more but would be here all evening. The cab rank rule is designed to uncork the concept of doing all manner of cases we are competent to do. Since when does "work we believe in" fit into that?

I recall that recent TV prog' about the Manchester Chambers bending the rules to do work that they believed in and ultimately corrupting themselves to get their clients off. Sick stuff and I felt it gave the Bar a very bad name.

It's a buzz to do work that corresponds to our personal moral code, but that is not what we are called to do.

I love the English Bar and celebrate the fact that we are impartial servants of the Court as well as of our clients. With pride I contrast it with the partisan and emotionally charged style seen in the American Courts.

Look at that dreadful OJ Simpson case.

Barrister 2 B said...

I think you have raised a very important point - namely that the adversarial system of justice only works when the parties involved are detached and don’t get personal, when emotions run high - mistakes are made. This is not good for the Defendant nor the Government as they will be paying the wages of Queens Council when the matter comes up for appeal, then we may have carter2 - whereby the fees that one can claim on cases such as these are put out to tender, thus shooting the cab rank rule between the eyes.

Troubled barrister said...
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Troubled barrister said...
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SM said...

A quick poll of Mrs M and her office colleagues suggest that most do not want to be Crown Court advocates. Nor do most solicitors. Career progression can mean more than better courts - for most solicitors it means better cases.

So, I agree about lack of career progression without tying that to advocacy. It isn't really for a Barrister to comment on the faults of the CPS - it is for its own employees. But the new plan to allow some senior posts to be devoted to casework and others to administration seems to me to be a step in the right direction.

Ultimately, if you take away advocacy, the problem is that it's too easy to get stuck. There are only a few chiefs allowed - and there are lots of Indians. In commercial solicitors firms that problem is resolved by allowing senior people to do marketing and client care as well as good work. At the CPS that option is closed.

Advocacy won't solve the problem - not just because too many don't want to do it and don't see it as progression, but because there isn't enough talent there to do really good work and the preparation time would cause economic problems - how do you account for the 100 odd hours to prepare a moderately complicated rape? Barristers do it at home in the evenings - CPS lawyers don't get paid for that. Why should they do it?

My own view is that there would be better morale if the Crown Court advocacy was left alone and career progression meant case work. There would be fewer employees, more productively employed and happier. But what do I know? That's no one's definition of an empire...