I am delighted that the wonderful Mary Aspinall-Miles (@MAM12CP) has agreed to write a guest post for this blog. Mary practises criminal law at 12 College Place Chambers, with a particular expertise in sexual offences. She also sits on the executive committee of the Criminal Bar Association.
NOTE: This article was written long before the recently-reported case of R v Itiary, and is not a response to or a comment on any reports in the media concerning that case.
I used to work in commerce. I was a headhunter/recruitment consultant. It was soul-destroying stuff for me, but was very well paid. Lord knows why I left, though my boss who nearly sacked me does (“I am glad you’re off to Law School. We never could work out why the likes of you worked here”).
But here’s the thing.
I had set hours I was expected to be in the office. Arrive by 9.00, leave at 17.30 and an hour for lunch. I was expected to call leads, clients and candidates out of hours, but I was incentivised to do it by commission. There was a direct correlation between hard work, success and monetary reward.
A friend was a teaching assistant at a primary school; she had contracted hours for which she was paid, but at the end of the school day/her day, she left and did not have to THINK about her job at all. My father is an eminent scientist but self-employed. His work ethic and self-discipline is astonishing and may appear punishing, but his work is his passion and his life. There are deadlines to be met which can lead to stressful periods, and financial worries caused when projects are pulled without warning or when politics intervenes. My best friend from uni was a successful banker (boo hiss!) but found it wanting and is now a “super head” for a free school for which he is paid in six figures, but he is enthused and driven to help. One of my best gigging mates is a partner at a city firm. He is kind, generous, fun and constantly raising funds for charity, BUT when it comes to the business – and it is a business – he will not do a single thing that is not financially rewarded. He is paid for expertise and expects to be paid. Of course he’ll do some things to keep the client sweet, but largely for money. Time is money for him and money is time.
They will give a first rate service to clients as they have strict work divisions based upon cost, because the client pays. He and our mate ( a lawyer in a bank ) look after me because they see me as a “social worker rather than a lawyer.” Ditto my friend “Sphinxy”, a senior and well-respected PI (personal injury) barrister and Twitter addict; an absolute sweetheart in real life, but all about the money.
I was married to a civil barrister who used to practise crime, who taught me that criminal barristers are too keen to be liked and too scared to play the elitist hand, because we are beholden to public money and thus the vagaries of public opinion and politics. We are in the middle of an identity crisis, not knowing whether we are professionals or social workers. Most of all, he would say, we have to accept we will never be liked, and to stop trying. We are a necessary evil. We have to stop hiding behind egocentric notions that we matter but that we serve the public.
What is the point of all of the above?
The Criminal Justice System is ill-managed over its approach to time. There is simply not enough of it for any of the major “stakeholders” (vomits) in the CJS. Police officers do not have enough time to investigate properly or liaise with aggrieved parties, which is why they think they are marginalised and defendants think they are treated unfairly. The Crown Prosecution Service does not have enough time to review cases or prepare appropriately. Defence solicitors do not have enough time to go to police stations, go to court, speak to families and prepare cases. The Bar do not have enough time to draft documents and prepare cases to the level required. Judges don’t have time – never ending lists; administrative duties and increasing managerialism.
There is a constant pressure, like a blister on the heel whilst wearing vertiginous high heels. No one can stand, let alone walk properly.
And yet the powers that be load up with more targets and demands whilst they sit in their glass towers (as government towers tend to be), surrounded by resources and playing the political game with the press, whipping up them up in whatever direction suits. They appoint meaningless posts like the Victim Tsar to pay lip service to victims whilst actually failing to tackle the endemic problem of poor funding and a lack of transparency. How, for example, do most of HMCTS and CPS staff get their jobs? Especially at local level? And there is the poor training – it astonishes how many in HMCTS, the CPS and the police have never been inside a court. These are the things that fail victims, witnesses and defendants. As does the legal profession’s arrogance of “knowing best” when it comes to the business of running, well, an actual functioning organisation albeit an important and special one. We should stick to lawyering and justice but we need to have a sea change of how we achieve that – collective bargaining is a start (and post-Brexit, if EU laws are no longer to apply, why shouldn’t we have a union?), as are muscular professional bodies whose leaders cannot be bought off with professional reward by being properly paid to do it, and, as the Bach Report suggests, an independent pay body. Time to change. Time to behave like lawyers.
This is an excellent piece. Time pressures on the entire legal system are immense. I do exclusively civil work but the levels of poor service from the courts are just the same. Try telephoning the Royal Courts of Justice or any of the other courts and hoping for a sensible answer: you will be very lucky to get a reply, let alone speak to someone who knows what they are talking about. I suspect it is deliberate: overload lawyers, put obstructions in their way and pay them poorly and they will go off and do something else (plumbing perhaps or becoming driving instructors!). Reduce (in real terms) fees for legal aid work year on year. Hike up court fees so they are beyond the reach of many. But at the same time tell the world that you are committed to a fair legal system. Get the Daily Mail to run a few articles about ambulance chasing or fat cat lawyers and you ensure that the public thinks that lawyers are greedy and a waste of space.
In the meantime access to justice (every bit as important as the physical health of the nation, yet receiving a fraction of the bounty paid to the NHS) becomes second…. third….. fourth class. It is only warriors like Mary who keep the system anywhere near in shape. I could go on… and on….
The government and the demagogues are intent on destroying the profession by making it market-driven – forgetting that access to justice and equality of arms are, as Adam Smith LLD was at pains to make clear, precedaneous to the free market (certainty of transaction etc) rather than part of it. So why not give them a little taste of the results? Give them something to remind them they should be careful for what they wish? Just like what’s happening to the NHS. A few concrete proposals:
– abolish solicitor client retainers and the associated insanely arcane costs rules. Revert to pure contract law.
– incorporate a couple of “super-ABS” non-profit enterprises. Let’s call them a couple of likely acronyms, say LS Limited and BC Limited. Everyone to join them via, say, a compulsory levy overseen by, say, the SRA and BSB. Not a government-hated trades union or independent workers of course, just a government-beloved trade association of independent businesses. Novel I know, but you have to start somewhere.
– The judiciary too has been trapped in ever-contracting boxes But I’m nowhere clever enough to figure out what the judiciary can do, that’s why I’m not a judge. The judiciary collectively however are the smartest folk in the country, if anyone can figure it out they can.
– Then just let the market decide!
Give the government a taste of market power. Enter into bulk delivery contracts with the government. Then exploit the exit clauses to take a leaf out of the government’s own monopoly-provider playbook and screw them over again and again. They want justice to be a service? Give the barstewards what they want.
I guess all that might get a storm of reaction, bleating about exploitative legal monopolies. But what’s the next step? Submit to their demands? What’s the worst that can happen? Break down the monopolies into, say, self-regulated professionals?
[Disclaimer: over the last few years I’ve developed a commercial bolthole against the event of the collapse of the system so I have less “skin in the game” that do others]
I’m sure you’re right about the way certain occupations are protective of workers’ time. But I think it’s instructive that your HT friend is running a ‘free school’. Go into any LA school and you will find HTs and teachers working sixty hours plus a week on far from six figure salaries. You can replicate that in certain parts of the health service and in social work. It’s the public sector that gets hit on from a great height, more so now than ever before. We need a change of culture whereby public sector work is seen as just that and not as the old canard a ‘vocation’.
Reblogged this on | truthaholics and commented:
Not properly appreciating the value of time is compounding inefficiency across the criminal justice system …
Reblogged this on World4Justice : NOW! Lobby Forum..
How about less law. A simpler less congested set of laws for the UK would simplify court procedure vastly. I get a lot of law was put in place to mitigate a perceived failing. But particularly criminal law has offence on top of offence. A root and branch reform of our bloated law books would move things a long long way…..
“muscular professional bodies whose leaders cannot be bought off …”: oh really? Have a look at trade union officers. If looking at them in Britain engages your emotions too much look at them in the US.
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