Monica said she would leave us to talk, and went to stand around the corner with her solicitor, chatting. Then, Jude looked straight at me and said he had changed his mind. He wanted to stay where he was. He wanted to stay with his mum. We spoke about Martha and his two half-brothers and Monica’s partner. We spoke about his new home, the school to which both he and Martha had moved. We spoke, briefly, about Nigel, but it was hard for him and I could tell he did not want to talk about it. It was enough for me to hear him, to see him, to know that he was sure. And so we went into court and I withdrew my appeal and the lord justices, relieved to be unburdened from the decision, beamed at Jude and sent us away.
A year after the final hearing, I stood in the taxi queue outside Bristol station waiting for my turn, using my late pregnancy to justify a ride to court. Today was the final direction hearing in Jude’s case. The judge had come out of retirement to hear it and, I was told, had done so gladly. Jude would not be at court, but in my bag was the position statement I had drafted setting out what he had told me he wanted the court to know. That he was sad his father had not come to the contact sessions the guardian had arranged or tried to get in touch and that he missed him. But that he was happy. He was happy at his new school, he was happy he had lots of friends, he was happy living with his two half-brothers and with Martha again. At the end of the document was a sentence which may have been the most significant I have ever written: Jude wants the judge to know that he thinks she made the right decision.
After the hearing I found myself walking in the opposite direction to the station. Ahead of me church spires and cobbled streets led to the old part of the city. To my right Bristol Castle loomed out of green trees in its park. The view was filled with memories and associations, not just of university and old cases but of the other cities and buildings to which my job had taken me. I looked down at the mesmeric reflections on the surface of the river. This was one of the last cases I would do before I left to have my baby and I wanted to savour it. It was rare, this chance to find out what happens afterwards. After I tie the pink ribbon round my files and sign the brief and send off the attendance note and put the bundle in the wire tray in the clerk’s room to be billed, my part in the play is usually over. I was glad to have had the chance to see and speak to Jude since the decision that changed his life; glad I had spoken to him for today’s hearing and heard the lightness in his voice. It was not until now that I had also been able to concede how relieved I was. I had not allowed myself to imagine all the other possible outcomes of the risk Judge Francis had taken. How wrong it could have gone.
I thought of the baby inside me, weeks away from his arrival. I had expected the physical vulnerability of pregnancy but not the emotional one. It was as though the armour I had grown to do my job was loosening. It troubled me. I had begun to suffer a fear of crying in court, of being too moved and, through this, revealing weakness. I had also not yet grasped the politics of pregnancy. I knew to disguise it, lest the work stopped coming – clerks and solicitors assuming there was little point handing over a case I would not be around to see through. I had felt the ever-present speculation about when I would come back to work; how I would balance the heart-tugging demands of a child with never really knowing when I would be home, or how early I would have to leave the following day, or how late I had to work to prepare tomorrow’s case. I had heard that time taken off for holidays and school plays and unwell children may be punished. How, in some chambers, the clerks would acknowledge it out loud – the boys will go anywhere we send them so they deserve the good briefs, irrespective of talent and ability. But I did not know back then that out of sight really was out of mind. Or that, at one point, it would be suggested to me by a man I had never met that my best course might be to ‘step back’ from the law.
I also had not realized that I would need to separate myself from my job to mother a baby. Nor, conversely, did I know how I would miss the courtroom with an ache and that I would long to return. I would miss the ability to lose myself entirely in the dissection of a case. I would miss the swoop of relief or shock at a jury verdict or judgment. I would miss the ever-present camaraderie, the feeling of togetherness against the odds, an unspoken acknowledgment of our allegiance to a job where there are many reasons to admit defeat. I would miss my clients. Not all of them, but enough.
I turned and walked across the bridge, over the road and up through the narrow market street lined with stalls and cafés until I came to the road where the crown court stands. Part of me wanted to slip in and watch a trial, but I felt foolish doing so in front of those who might wonder why I had turned up as a tourist. Instead, I thought of those cases and clients that had changed me. I became aware of a familiar sensation. It was the same feeling I have whenever I tug my black gown over my shoulders and settle my wig into place on my head. It is a quiet but solid respect for the law – its history, its purpose, its ambition, its place.
We pride ourselves on our legal system. We know we should be proud because foreigners choose to come here to use it. They do so knowing that the judge before whom they appear cannot be bribed or threatened or bullied into doing anything other than applying the law. That sense of integrity extends throughout the system, not just for those who use it but among those who work within it and try to preserve its dignity and efficacy. As a result, our courts dispense justice with a degree of equity that means they are still considered among the fairest in the world.4
We are in danger of taking this inheritance for granted. Great damage has already been done. Our legal system is regularly threatened and often wholly unsupported by those whose duty it is to protect it. Changes in its function and its funding have gouged chunks out of the high legal principles that we presumed were inviolable. Access to justice for all, no matter what your background or your bank balance. A high-quality judiciary, both to enforce the law and to make it. A fair, swift and equal hearing. We may believe that we are a long way from the corrupted legal systems that encourage foreigners to litigate in our courts rather than their own, where only money or political favour can ensure your freedom or a favourable judgment. We would be mistaken. While the legal system is in need of reform, the cumulative effect of poorly targeted funding cuts over several decades has seriously compromised the criminal law and threatened the principle of good and fair justice both for victims and defendants. Access to the family and civil courts for those without means is now skeletal. Falling pay and overwhelming workloads have meant that finding new judges is as difficult as keeping the ones we already have – something made no easier by public attacks from those who should know better. The law, and by extension the country, is threatened by an insidious form of corruption that is just as damaging as the more obvious kind. The gradual but irreparable erosion in trust in our legal system and its ability to dispense justice is a situation against which we must all protect ourselves, for, should we slip further into it, all of us will pay the cost.
Lawyers often say the law is important even to those who are unlikely to set foot in a courtroom because, as the truism goes, none of us knows what life might throw at us; any of us may become the unexpected victim of a terrible crime or a false accusation. But the law’s reach is far wider than this. The decisions made in courts across our country touch our daily lives somehow, no matter how far removed we think we might be or whether we notice. Our ability to buy and sell and to invest are made possible by a legal system that is trusted to enforce a contract fairly. From the cost of our insurance to our ability to hold our government and its institutions to account, good and bad decisions by the law reach us all in the end. The law seems removed because the archaic rituals and language of the courtroom belie the fact that our legal system is a living thing. It deals with the most contemporary of problems, reflecting society back at itself. This is why everyone should have an interest in protecting what we know our justice system can do at its best.
The law is human justice, designed and enforced. It will therefore always be im
perfect. It makes mistakes, it is slow, sometimes chaotic, sometimes illogical. It cracks and – at times – crumbles. But it remains a pillar upon which our country is founded. Were it to break, the stability of our nation would break too, and we would all be the poorer for it.
I turned away from the courthouse and walked slowly along the street. I realized that, without explicitly comprehending it, this feeling I had just recognized had been with me since I first walked into a courtroom. Pride. I am proud to be part of something I think is important. I am proud of something that, at its most elemental, underpins our law-making institutions and, therefore, our democracy, our lives and our liberties. I am proud, in short, to call myself a barrister.
Notes on the Law
1 Dominic
1 ‘… how to represent a child’: Mandatory training for all advocates who practise in proceedings involving children has been recommended and the regulatory body for barristers, the Bar Standards Board, is currently considering this requirement.
2 ‘… old enough to be a criminal’: In England and Wales, the age of criminal responsibility is 10 years old. This is lower than in any other country in Europe, including other parts of the UK. For example, in France it is 13, in Germany and Italy 14, in Denmark and Norway 15, in Spain 16 and in Belgium 18. In Northern Ireland it is 12 (with exceptions for very serious crimes) and in Scotland children are not prosecuted below the age of 12. A number of neurodevelopmental studies have said that children below adolescence (13–14 years) cannot be compared to adults in terms of their brain’s ability to control their emotional responses and actions (Rules of Engagement: Changing the Heart of Youth Justice, Centre for Social Justice, 2012). There have been numerous calls from a wide number of organizations, governmental and otherwise, to raise the age to 12 in England and Wales as well. The United Nations Committee on the Rights of the Child has repeatedly said that the minimum age of 10 years is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child.
3 ‘… leading in only one direction’: Although the number of juveniles going into custody has dramatically reduced over the last decade, the number of those who do who then go on to reoffend within a year of their release has increased to just below 70% (Proven Reoffending Statistics, updated 27 July 2017). See also note.
4 ‘… would pay me £125’: Criminal barristers are predominantly paid from the public purse through legal aid. In the crown court, the advocate’s fee is fixed. In the magistrates’ court, the defendant’s solicitor will pay a sum to any barrister they instruct out of their case fee. There is no set rate for this, although in 2008 the General Council of the Bar recommended a minimum gross rate for magistrates’ court appearances of £50 for hearings, £75 for a half-day trial and £150 for a full-day trial. In a survey carried out by the Young Barristers’ Committee in 2016 amongst those practising for seven years or under, many received less than this.
5 ‘… stopped and searched, again’: Section 1 of the Police and Criminal Evidence Act 1984 grants police a power to stop a person (or vehicle), ask them questions and search them. The police are entitled to do so only if they have reasonable grounds to suspect that the person is carrying illegal drugs, a weapon, stolen property or something that could be used to commit a crime. The police are obliged to confirm their name and police station, what they expect to find, the reason they want to search you, why they are allowed to, and that you may have a copy of the record of the search. There is no obligation on the person either to stop or to answer the police’s questions. Only 17% of all section 1 ‘stop and searches’ lead to an arrest (Police Powers and Procedures 31 March 2017).
6 ‘… admissible by law into the trial’: Every defendant walks into the courtroom an innocent person. Those determining their guilt – magistrates, judge or jury – cannot know anything of their previous convictions, for fear that this may impact on the way they deal with the evidence. However, a judge may allow evidence of a defendant (or witnesses’) previous convictions, or other reprehensible behaviour, to be put before the jury if a ‘bad character’ application is granted. The evidence has to pass a number of statutory tests, but the most common one is when the evidence shows that the defendant has a propensity to commit the kind of offence for which he is currently on trial (i.e. he has previous convictions for similar offences), or that the evidence shows he has a propensity to be untruthful. The law prevents a judge from allowing bad character evidence in, even if it passes the tests, if he thinks it would make the hearing adversely unfair.
7 ‘… working knowledge of the sentencing guidelines’: The Sentencing Council for England and Wales was established to draw up guidelines for every offence, designed to ensure national consistency between judges and courts. They are said to be ‘guidelines not tramlines’, although the effect is to reduce significantly the autonomy of the judge, who would have to have a good reason for departing from the guidelines without fearing a referral to the Attorney General’s Unduly Lenient Sentence Scheme, or a defendant’s appeal. The guidelines often break specific offences into different levels of seriousness, depending on the facts of the case. Within each of these levels, the guideline sets a sentence starting point, and a bracket indicating a minimum and maximum sentence. It then lists common aggravating and mitigating factors which tip the needle up or down from the starting point. It is fair to say that, although they have been successful in largely ensuring national consistency where before there was little, they have also been blamed for significantly increasing the length of sentences and, in turn, the ever-swelling prison population (85,409 in October 2017). The overall maximum sentence for an offence (and sometimes the minimum), however, is set by parliament. When parliament increases the sentence for one offence, the Sentencing Council must readjust the starting point in all other corresponding offences to ensure there is not a wide discrepancy which can mean heavier sentences for other crimes, not just the one whose maximum was increased by parliament.
8 ‘… one third off his sentence’: The law states that every defendant is entitled to a discount off their sentence if they plead guilty before their trial. This discount reduces as the case gets nearer to trial. Since Dominic’s case, the only way for a defendant to guarantee a full third off their sentence is to indicate a guilty plea in the magistrates’ court at first instance before their case is sent up to the crown court (or, if it’s a magistrates’ court trial, to plead guilty at the first hearing). Thereafter, the discount reduces incrementally the closer they get to trial. There is a one fifth discount for someone who pleads guilty before the first day of trial, one tenth discount for anyone who pleads guilty on the first day of trial, and no discount for someone who pleads guilty once the trial has begun. Critics of the new scheme say that, far too often, the defence will not have sufficient disclosure from the prosecution at this early hearing fully to understand – and advise on – the evidence and the defendant’s prospects of success at trial. Until this disclosure is produced, they are unlikely to recommend a guilty plea, even though this might cost the defendant a reduced discount if, having seen all the evidence, he then does plead guilty.
9 ‘… pre-sentence report’: A pre-sentence report (PSR) is a document prepared by probation to assist the court after a defendant has pleaded guilty. One is prepared in most cases, unless a long period of custody is inevitable. The probation officer will interview the defendant and then write the PSR setting out the offender’s history, remorse, vulnerabilities and commitment to change, as well as making recommendations for any kind of community sentences that might be available or suitable. The PSR is a recommendation to the court, and the judge need not follow it.
10 ‘… not to send them to prison’: Britain has the highest prison population in western Europe at 85,409 (UK Prison Population Statistics briefing paper, April 2017). Although the reoffending rate in adult offenders is the lowest since 2004, generally offenders with a large number of previous offences have a high
er rate of proven reoffending than those with fewer previous offences. The reoffending rate for those released from short sentences has been consistently higher than that of people released from longer sentences. Adults who served sentences of less than twelve months reoffended at the very high rate of 65.5%, compared to 29.9% for those who served determinate sentences of 12 months or more. For adult offenders starting a court order (community sentence or Suspended Sentence Order), the proven reoffending rate was 33.9%. This would suggest that Community Orders are more effective than prison at reducing offending, and short prison sentences are ineffective at creating any kind of rehabilitation, although there is no way of knowing differences in offender characteristics and the type of sentence given (Proven Reoffending Statistics, October 2017). See also note.
11 ‘… technically, I have to do it’: Barristers operate under a system known as the ‘cab rank rule’. They are obliged to take the next case that comes their way if they are qualified and experienced enough to do it and their diary is free. This system prevents barristers picking and choosing cases based on their merits or value. If you are next, then you are up. Where there is a clash of cases, a barrister and their clerk will weigh up the competing duties to each client to see which case should take precedent.
12 ‘… barely cover my train fare’: If a defendant is alleged to have breached his community sentence (i.e. by failing to attend an appointment) he will be summoned back to court for a breach hearing. The advocacy fee fixed by statute for a breach hearing was, and remains, £85.11. My fee for Dominic’s hearing – less chambers’ fee of £17.44 and train fare of £57.10 – would therefore be £10.57 before tax.
In Your Defence Page 25
