Will the Criminal Bar Last?

This seems to be a current faq (as they say in the blog biz). So I thought I would address it.

Yes.

The government is not trying to destroy the criminal bar in my view. What the government - or actually its civil servants - are trying to do is to look as if they are trying to control cost. Barristers (see the Editorial) take up a tiny percentage of the relevant budget. But they are a very visible part and the public (it is felt) recoils from lots of money being paid to help guilty people escape justice. That, coupled with basic jealousy, seems to be the motivation.

I say this because a real attempt to control costs would ensure that listing was entirely efficient, that Judicial time was costed and then wasted if that was the cheapest option, that the Courts were provided with expensive equipment which diminished long-term costs (such as digital recorders), and, crucially, that case planning was judged after the event by lawyers rather than before by civil-servants. In the marketplace that is civil law, this is exactly what happens. That is because the market efficiently regulates cost.

In crime the issue is how big the budget is, not how much ought to be paid per case. The budget is fixed before costs are incurred. Efficiency is thus irrelevant unless there is an actual danger of running out of money (When that happened at the CPS as it did 3 years ago, they simply didn't brief barristers to prosecute in the Magistrates Court and CPS staff did those Courts whilst the work they would otherwise have done waited until April 6th). That leaves those in control with a different agenda - namely to look as if things are being done. The Bar is in the frame.

It seems that about 50 people have signed the VHCC (a large proportion of whom are Higher Court Advocates - i.e. solicitors). Let us assume that my information is out by a factor of 10, so that 500 have signed. That is less than 25% of the total. The work simply cannot be done by that number of people. Moreover, the criminal bar is efficient. Long cases in the hands of inexperienced advocates (and I make no prejudgment about competence at all) last longer. Agreements are not reached. People do not trust their opponent. Judges have to make rulings. Extra evidence is called. The scheme will fail.

One can be reasonably sure that the contracts have not been signed in droves because the LSC website has not published the list of names. Instead, the weasel words 'or after' have been added to the promise to publish the list 'on the 21st January'.

That argument applies to criminal work generally. In the long run there will have to be efficiencies. That means the Bar is needed. The necessary work cannot proceed at the necessary pace without us. At the stage at which real attention needs to be paid to what it costs to run a fair criminal justice system, rather than the masquerade currently being played out, I believe that the Bar will be cherished. At that stage it may be that civil servants may have to be quietly moved on.

I am an optimist but that is not (yet) a crime. Hang in there - we have a share in tomorrow.