criminal bar

The Indignity of Impotence – Why We Must ‘Strike’

They observed one another; the undeniable feeling of anticipation was tangible and electric. After weeks of pregnant expectation and waiting, the time had finally come. She smiled wryly and his heart skipped a beat as she advanced provocatively in his direction. The move wasn’t entirely unexpected, but he nevertheless felt the hairs on the back of his neck stand to attention as the pressure mounted. He knew that she would be watching his every reaction. ‘This is what I was born to do’ he thought, as he loosened off his collar. But, he couldn’t turn away from the nagging feeling of internal doubt, which suddenly enveloped him like a cold, wet blanket. As the crucial moment of impending conquest approached, something happened; something unimaginable.

Flaccidity.

He didn’t notice his own unconscious reluctance at first, but she of course did. It was difficult to ignore his limp, wilted enthusiasm or the clumsy, artificial attempts to rouse that once libidinous, proud member into action. He momentarily floated outside of his body and grimaced as he watched himself going through the motions. Something which should have been instinctive and natural had suddenly become desperate and over-thought. Denial and frustration replaced passion, as he became an unwilling victim of the dreaded paralysis by analysis. ‘Why me?’ he thought resentfully. ‘I used to be good at this! Why can’t things go back to the good old days?’ He reflected, with melancholy wistfulness, his now-receding, former prowess.

She tilted her head to one side and her face creased into a half-smile which didn’t quite meet her eyes. He couldn’t tell if it was genuine disappointment or patronizing delight. Everything was changing and resented himself deeply for it.

A Week of Sex…

You would be forgiven for thinking that I am describing erectile dysfunction; however you would be wrong. Most criminal lawyers would agree that in this sometimes-pleasant, pro bono hobby we call a profession; we don’t much get time for a sex life. In the shrill words of one frustrated solicitor last week: ‘We don’t get time for a bloody life!’ A criminal practitioner’s ‘week of sex’ is more likely to involve the uncomfortable cross-examination of a defendant accused of paedophilia; not a seven day, oxytocin-induced, Craig David-inspired love-in.

The hypothetical impotence, of which I speak however, is professional, not sexual. The metaphorical ‘she’ might be the public, the Government or other criminal lawyers. ‘She’ is your gut instinct, your sense of conscience, your inherent integrity. ‘She’ is now watching and waiting to see how our great profession reacts to the impending assault on our Criminal Justice System. The time is now and each and every one of us is accountable.  Such accountability is all-encompassing and spares not a single one of us. Not even you.

Legal Armageddon

As Great Britain retrogrades further and further into the socially immobile days of Victorian Britain, criminal practitioners watch wide-eyed and with their hands covering their mouths, as Grayling steamrollers ahead on a one-man demolition mission of the Criminal Justice System. The deafening avalanche of fifteen thousand unanimous responses urging him to reconsider has barely turned his head, nor persuaded him to alter course. This breathtaking arrogance/stupidity* (*delete as appropriate) of a man, who lacks the basic rights of audience to conduct a simple bail application, is as dangerous as it is misguided. As the first missives of Legal Armageddon rain down, we can be left in no doubt, that this bizarrely-appointed, non-lawyer Lord Chancellor is not for turning. As the shutters come down on access to justice for ordinary people, those who have actual (rather than absolutely no) experience of working within the law, wonder how things have got so out of hand.

You see, Christopher Grayling, despite arguably having all the charisma, presence and oratory skills of an out-of-date, own-brand cornflake; has somehow managed to dismantle the Great British Legal System in front of our very eyes; with all the care of a five-year old destroying a crudely built Lego house. Make no mistake: this is happening our on our watch. We each bear witness to this mindless atrocity, and in the event that we don’t stop this self-serving megalomaniac, history will rightly judge us. Impotence, my learned friends, is not an option.

The 7th March 2014 is a historic day: the criminal side of the legal profession will stand united in a day of protest, for only the second time in five hundred years. We are on the precipice of something unprecedented. As each of us glances nervously from side to side, it is gradually dawning on doctors, lawyers, soldiers, probation workers, court interpreters, police officers, nurses, firefighters and civil servants generally that we can no longer rely upon our Government to act with common sense, in the best interests of the majority of the people. The elective dictatorship we quaintly refer to as democracy has no apparent interest or concern for 95% of the population; less so for the vulnerable and disadvantaged. Yet, despite the average hard-working Briton feeling thoroughly disenfranchised, ignored and insignificant, protest and unity is rare. Why so?

Great Britain?

The Western population has slowly and sadly become a nation of armchair voyeurs. Millions are passionately committed to the globally irrelevant performances of a bunch of overpaid ‘celebrities’ kicking a leather bag of wind up and down a football pitch, yet feel motivated to do precisely nothing to combat the gradual destruction of our planet. We gossip with our workmates about which latest vacuous personality has eaten a frog’s eyeball on I’m A Celebrity, yet petrol prices increase by another 20% and it’s all that we can do to let out an apathetic sigh as we resignedly hand over even more of our already heavily-taxed wages. Akin to worker ants, we conform to the bizarre social ritual of spending thousands of pounds commuting to work each year, in a car we don’t own; to fund the mortgage on a home in which we rarely relax because we’re always out, working most of our waking hours in order to pay off debt, utility bills and tax. We have become desensitized to pain, suffering and tragedy; moreover we have seemingly lost the once inherent ability to stand together and fight injustice and corruption. We are drip fed a 24/7 brain-food diet of disinformation and distraction, whilst the media brainwashes the new working-middle class to blame the poor, the disadvantaged and the powerless for the ongoing catastrophe created by corrupt bankers, disgustingly rich corporations and certain politicians.

So why does the responsibility lie with criminal lawyers to restore order out of chaos? Why do I beseech each of you to search your soul and your heart, in order to fight to win the case of your lives?

We Cannot Change What We Refuse to Confront

I’m going to say something that might cause mild outrage across the profession. I predict that several solicitors or barristers might be driven to putting down their sandwich. There may even be isolated outbreaks of frowning.

The uncomfortable truth is this: there are a significant number of practitioners who fear that we will not win. They believe that we are simply going through the motions in a vain and transparent attempt to ensure that historians will be kind to us, when future generations question how we allowed justice for all to be sacrificed on the hastily assembled altar of Grayling’s single-minded career aspirations.

We must confront reality. To describe professional morale as waning would be to award an unworthy compliment. An accurate description of the mood would range between self-excepting, optimistic denial and resigned defeat. This week alone, one of my instructing solicitors was made redundant on the day he qualified as a criminal practitioner. His dream of orating in court was dashed on what should have been a long-anticipated, hard-earned day of celebration. I know personally of numerous practitioners who are working each day despite being under their doctors for work-induced clinical depression. Two others told me how they are soon to be taken to court to face bankruptcy proceedings; their homes and small offices to be repossessed. I know of others who can no longer afford to remain in practice and have hung up their wigs and gowns forever; a bleak and uncertain future ahead.  The idea of a qualified barrister on benefits is no longer an oxymoron: this is the new-found, grim reality of criminal practice for many. Social mobility has unfortunately reversed for working class practitioners, as the Criminal Bar returns to the domain of the privileged and elite. Sadly, so too does access to justice for defendants and victims of crime alike.

Many practitioners are secretly hoping that we are going to witness a movie-style ending, where all manner of unlikely scenarios serendipitously coincide, despite the laws of time and physics. Just as the Criminal Justice System descends into catastrophic meltdown, Grayling’s mask is ripped off and everyone breathes a collective sigh of relief as a bumbling, cartoon Homer Simpson is revealed. The world makes sense again. Fairness is restored. Superman flies in and leads the canary yellow caricature away in handcuffs on charges of being a complete and utter idiot.

Sadly, this isn’t going to happen. Our fearless leaders have brought us this far, but the turbulent journey from herein is up to us.

A strike by any other name…

Impotence can be embarrassing and lonely. It causes frustration. It can make a person feel powerless and out of control. As a former therapist, I can tell you that the primary cause of erectile dysfunction is the result of a little-known phenomenon referred to as Coue’s Law of Reversed Effort. Simply put, the more that you think about the adverse outcome, the more likely the adverse outcome will re-present. As the symptom intensifies, so too does the compulsive thought process. Eventually, the mind, which processes fact and imagination in exactly the same way, starts to ‘believe’ the imagined worst case scenario as a foregone conclusion.

To combat impotence, one must focus strongly upon the desired, rather than feared outcome. The desire must become all-consuming. We must desire victory in the same way.

Failure is not a foregone conclusion. We still hold destiny in our hands. Grayling is not the bogeyman. He is a solitary politician in a transient, temporary role, pitted against an entire, time-honoured profession. We must recognise the strength we have. We must decide on our desired outcome. The word decide comes from the Latin decidere, meaning ‘to cut off’. A true decision involves cutting off all other possibilities and committing to such without the consideration of defeat. Just as Hernán Cortés instructed his men to burn the boats as they descended on Mexico in order to conquer the land, we too must cut off every possibility of defeat.

As yet, we have fought the assault on Legal Aid by allowing the Lord Chancellor to dictate the rules, the position of the goalposts and even the dates and times of our games. Thus so far, we have bargained on his terms: we have pleaded, we have begged, we have reasoned. On the 7th March, we will politely abstain from attending court. Sadly, I fear that this is just the start. We must be prepared.

You, the reader, are being called upon to stop it. Do not think that others will overcompensate for your lack of participation in this all important battle.

Do or don’t do; there is no try.

The time has come to pin your colours to the mast.

Remember the analogy of bacon and eggs: the pig is committed but the chicken is just involved. Don’t be the impotent, uncommitted chicken as  your colleagues run into battle, burning boats in the background.

Save Legal Aid is a command; not just a catchy strapline.

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Social Mobility and Public Perceptions of the Criminal Bar

‘What do you call fifty barristers at the bottom of the ocean?’

‘A good start.’

It’s an old, well-worn joke, but the sentiment is crystal clear: the general public have never really liked those hailing from our mysterious bewigged profession, with many outside the Bar traditionally believing us to be privileged snobs possessing questionable moral fibre. Despite this, the latest buzzword of the Bar hails itself a ‘meritocracy’; promising that the profession has moderated its once-VIP door policy to welcome any candidate who is talented, hardworking and dedicated enough to practise, irrespective of background. So, has this paradigm shift seen the modern Criminal Bar shrug off its former stereotypical image as a domain for the socially advantaged few? Moreover, given the current financial stranglehold on the profession, have public perceptions towards barristers softened? Looking to a recent online article[1] penned by Michael Mansfield QC regarding the latest round of Legal Aid cuts, the mood of non-lawyers does little to inspire confidence:

“Oh boo bloody hoo. Less of my tax money being given to lawyers to represent terrorists and murders. If you think the legal profession offer [sic] such a great service and such moral integrity why don’t you stop taking the Government’s money and see if you and your lawyer friends can survive on your own. Perhaps you should consider lowering your rate like everyone else not subsidised by the taxpayer when business dries up. Lawyers are not gods.”[2]

This comment would indicate that far from improving, the climate of public resentment towards our profession is gaining momentum. If this bile-infused rhetoric is to be taken as the barometer of social opinion, what belies the heart of this perceived contempt aimed at the Criminal Bar? Given that we are a client-focused profession, dealing with some of the most challenging and vulnerable cross-sections of society, why do we not enjoy the same social adoration enjoyed by our equivalently-qualified, handsomely rewarded cousins in the medical profession?

One consideration is the public assumption that we are but one step removed from our criminal clients. In a climate where crime and disorder stirs up such public emotion, it seems that a body of professionals who represent alleged criminals may be disliked by association. After all, we do spend many hours sitting in windowless court cells giving advice to alleged paedophiles and attempting to persuade Judges that our drug-dealer clients really weren’t the ‘big fish’ of a particular operation. This privilege is not something that members of the Bar take lightly, however. The very fact that criminal barristers put their own personal feelings and prejudices to one side in order to listen to people accused of the most terrible crimes is at the very heart and strength of our adversarial, rather than inquisitorial system of justice: namely; that suspects are innocent until proven guilty and not the other way around. Can it be said that society truly understands and appreciates that its ongoing collective faith in the court process is borne from the fact that defendants are properly represented and therefore properly convicted or acquitted?

The fact that Legally Aided barristers are paid from the public purse only serves to incense the public, who resent our often non-working clients being represented at a cost of millions of pounds to the taxpayer. We are seen as both facilitators and beneficiaries of a system which openly benefits those who break the law, at a cost to those who don’t. Many will think ‘What does the court process have to do with me? I have no convictions and don’t see why I should have to pay so that rapists can be represented for free’.

The press does little to help improve our misaligned image, instead choosing to sensationalise stories about overly-lenient sentences, ‘legal technicalities’ and ‘fat cat lawyers’. Ironically, those once-heavyweight felines have been replaced by much slinkier versions; forced to crowd an ever-atrophying saucer of milk alongside thirsty solicitor advocates, whose firms’ job it is to pour the cream.

Despite woefully inaccurate misconceptions of vast wealth, those at the coal face of criminal practice know that it is an infinitesimally small, but widely-publicised proportion of criminal barristers[3] who enjoy the trappings of a lavish publically-funded income. After significant deductions and expenses, the majority of practitioners face daily financial hardship simply to stay afloat. With extortionate overheads and often derisory fees, many junior barristers are lucky to be making £50 per day after deductions. As one former barrister said: 

‘Don’t go to the Criminal Bar. It’s not a proper job. It’s a hobby, and a pleasant one for those with an independent income – but you simply cannot make a living from it in the first four or five years’.[4]

The former head of the Criminal Bar Association, Max Hill QC, recently confirmed that financial adversity is now a widespread reality of practice:

“We may be [Rumpole’s] successors but we spend our days worrying about paying the mortgage; worrying about how we can ever afford a pension.”[5]

Joe Public remains blissfully unaware of the changing landscape; instead still imagining the average barrister to be an Oxbridge-educated, port-quaffing, middle class aristocrat whose existence has been comfortably buttressed by a the cushion of a generous private income. Irrespective of the veracity of such an image, few people will either reconsider or warm to such a stereotype; especially in times of ongoing austerity.

So, is this public image deserved? According to the Neuberger report of 2007[6], it would seem so. Despite headway made in respect of the number of entrants drawn from BME[7] groups, the majority of pupils have traditionally been drawn from the top two socio-economic groups.[8] Would-be lawyers from socially disadvantaged backgrounds may have been priced out of qualifying, or, could have been dissuaded from even considering the Bar as a career because they didn’t fit the customary stereotype of the pupil habitually selected by chambers. More controversially, some pupillage committees may have steered away from candidates who originated from backgrounds which were dissimilar to their own. ‘People like people who are like themselves’ one senior practitioner privately admitted. ‘The question we always ask is ‘are they one of us?’’

Nevertheless, the Bar Council has been proactive in implementing some of the recommendations of the report, more recently publishing a guide promoting social mobility and equality of access to the profession. Chairman of the Bar, Desmond Browne QC, suggests:

‘The perception of a privileged profession, narrowly drawn and recruiting in its own image, is progressively more outdated.’[9]

As outdated as it might be; the grim reality remains that those without a private or second income will find it impossible to survive at the Criminal Bar in the first five years of practice; irrespective of talent or ability. The combined countervailing pressures of increased university and Bar School tuition fees, the proliferation of Higher Court Advocates and the repeated reduction in publically funded remuneration now threatens to reverse many years of effort by the Inns, the CBA and the Bar Council to improve access to the profession, with only the wealthy few being able to qualify, enter and remain in practice. Ironically, this will only seek to reinforce public perceptions that the Criminal Bar is the inaccessible province of the social elite; an image from which the Bar has worked so hard to distance itself.

August 2012.

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[1] Legal Aid Cuts: If Lawyers Don’t Defend Justice For All, Who Will? by Michael Mansfield QC, Guardian Online, May 2012 http://www.guardian.co.uk/commentisfree/2012/may/22/legal-aid-cuts-what-price-justice

[2] Ibid, comment by ‘Mouseelephant’, 22/05/12.

[3] The Times’ annually-published top earning Legal Aid barristers list.

[6] Entry to the Bar – Working Party – November 2007 –The Rt Hon Lord Neuberger of Abbotsbury; http://cms.barcouncil.rroom.net/assets/documents/FinalReportNeuberger.pdf

[7] Black and Minority Ethnic

[8] In 2007/2008, 62% of pupils were from the top two socio-economic groups according to the Neuberger Report.

[9] No Bar to the Bar, Barristers Promoting Social Mobility, published by The Bar Council.

http://www.innertemple.org.uk/downloads/general/No-bar-to-the-Bar-final.pdf