What I go to court for

I am not a habitually angry person. Those who know me professionally would, I hope, attest to my happy-go-lucky demeanour and brimming joie de vivre. By way of example, I considered illustrating this blogpost with a jovial (and nostalgic) nod to Busted’s What I Go To School For.

In fact:

Busted

See? Jocular. Convivial. That’s me all over.

But barely a month into the job, new Lord Chancellor and Justice Secretary Michael Gove has managed to dig a fork right under my rib, not so much tickling at my intercostal muscle as lancing it clean through.

For while Mr Gove made plenty of flirtatious noises during today’s speech to the Legatum Institute – his un-Grayling-like acknowledgment of the rule of law, of the inefficiencies crippling the criminal courts, and of the remote possibility that legal aid lawyers are not simply slumped with their faces in the money trough – what chases, pins and tortures my gander is the throwaway allusion to the panacea of pro bono. And in particular, the helpful suggestion that the chronic inefficiencies in the courts could be ameliorated if the lawyers did just a little more for free:

“When it comes to investing in access to justice then it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the minimum wage.”

Now I know that, as Mr Gove told World At One, his comments were directed primarily towards Magic Circle (or “golden circle”, as Gove curiously put it) city firms and, presumably, chancery and commercial sets of chambers. But. But but but but but. We will put to one side, in the spirit of charity, any perceived insinuation that criminal legal aid work is the kind of jape that a Mergers & Acquisitions associate at Allen & Ovary can knock out during a 10-minute power walk round Bishops Square, rather than the most rapid-changing, pulsating and chaotic area of law, one in which people specialise for YEARS until feeling even vaguely competent to appear before a Crown Court Circuit Judge.

No, what I would like to take this opportunity to mount my soapbox, conveniently high up and equine-shaped, and shout about, is what as a criminal barrister I ALREADY do pro bono. What successive governments of every political colour, the Legal Aid Agency and the Crown Prosecution Service assume that I will do for free. And what I do, in fact, do for free.

So, herewith a non-exhaustive list:

1) If a trial I am defending is adjourned (as happened today, in fact), for reasons entirely out of my control – an interpreter not attending, a prosecution witness unavailable, lack of court time in spite of courtrooms sitting empty in that very building – I receive nothing. The Legal Aid Agency includes the day spent at court waiting to re-list that trial within one of my four “standard appearances” built into the already-slashed “brief fee”, and I get nothing for that day.

2) If a trial I have prepared is refixed by the court for a date I cannot do, I lose the brief, and get paid nothing at all for the hours spent preparing for trial.

3) If the court suddenly lists one of my cases for a mention hearing due to – for example – the CPS not having confirmed that they are ready for trial, and I am unable to attend, I have to pay someone else to go in my stead. I actually lose money, rather than risk showing the court the discourtesy of not attending.

4) I get paid nothing for drafting advices, legal applications or skeleton arguments, either for the prosecution or the defence. Depending on the complexity of the case, advices on evidence can take up to a full day, particularly if I am instructed (as frequently I am) to resuscitate a dying fraud or drugs conspiracy that the CPS have buggered up before admitting defeat and instructing counsel. This free advice is done on a day that I have to take out of court, meaning I earn nothing twice over.

5) I get paid nothing for drafting Defence Case Statements, theoretically the preserve of the instructing solicitor, but frequently thrust upon the barrister to knock up.

6) I get paid nothing for a Plea and Case Management Hearing when defending. Nothing for completing the 30-page form, nothing for the lengthy conference with the Client beforehand, nothing for waiting all day while the court slogs its way through a 40-case list. And nothing when the PCMH is adjourned due to the CPS having not served the papers.

7) I get paid nothing for the second day of a trial. I receive a fee to cover, notionally, preparation and the first day of trial. I receive a “refresher” fee for day 3 and onwards. But day 2 of any trial is a freebie.

8) I get paid nothing for reading Unused Material. This is the often voluminous material gathered by the prosecution in the course of the investigation, which they have a duty to disclose to the defence if it is capable of assisting the defence case or undermining the prosecution case. For complex cases – particularly involving sexual allegations – this can amount to quite literally crates and crates of old (and often handwritten) Social Services documents and medical records. I have to read every word, as the key to my Client’s case can be buried within, but get paid not a penny.

9) I occasionally get paid nothing for reading the actual evidence. The fee for a case is calculated by reference to the number of pages of prosecution evidence (PPE). Where the prosecution choose to serve evidence electronically on disc, rather than on paper, a byzantine bartering ritual kicks in where the Legal Aid Agency can choose to arbitrarily withhold the fee I would have received, had the exact same evidence been served on paper.

10) I get paid nothing where a Client decides – for reasons entirely outwith my (admittedly limited) competence – to instruct new representation. I recently spent approximately 100 hours preparing for a complex Proceeds of Crime Act hearing, involving thousands of pages and hundreds of miles of travelling to see the Client in prison to take instructions. When, a month before the hearing, the Client dispensed of the services of my instructing solicitors, his new firm brought in their preferred counsel, and I was left unable to bill a farthing for my work.

I could go on. I want to go on. But I also want to weep. Because any serious discussion about the future of the criminal justice system which does not recognise that the courts only keep running because of the unsustainable goodwill of those involved, is not a serious discussion at all. It’s a charade. And with a few poorly-chosen sentiments, Mr Gove has indicated that he’s only here to play the game.