The Secret Barrister

by The Secret Barrister

  Fixers and Vultures

  I first met Darius in the cells of the local Crown Court. The brief for his preliminary hearing had been hurled at me by the senior clerk at 6.25 p.m. the previous evening; an added bonus to my growing collection of ‘returns’ from senior, busier members of chambers. A ‘return’ is Bar lingo for covering somebody else’s work; as court listings take little account of barristers’ availability (and on the occasions that they do, the climate of chaos, delay, trial overruns and adjournments often conspires to make you unavailable), we frequently have diary clashes that prevent us from appearing at hearings for one or more of our cases, and call upon a colleague to step into the breach. A key part of the clerks’ jobs is to keep an eye on the roving carousel and ensure that all hearings for the following day are covered when the music stops; thus, when they get a phone call from a ragged barrister at 5.05 p.m. reporting that her three-day trial is going into its fourth day, all hands leap to the pump to ensure that there is someone else in chambers who can pick up whatever other hearings that barrister has in her diary. As a junior paddling at the bottom of the food chain, returns make up a significant chunk of your practice until you have developed enough of a name that solicitors start instructing you in your own right. So it was that I, as chief bottomfeeder, had Darius enter my life.

  The brief, even for a preliminary hearing, was alarmingly lightweight to the touch. While this, the first hearing in the Crown Court, was usually conducted without the full prosecution papers, which would be served some weeks later, the solicitors should have made efforts to scrape together more than just the police summary. There should also be some basic instructions from the solicitors, providing essentials such as the client’s instructions to date, what he says about the allegations and any particular information that the barrister might need to know before meeting the client.

  Such as the fact that the client has severe, crippling learning difficulties. That he is the abused product of a drinker (Mum) and a heroin addict (Dad), and, like many such children falling through the systemic cracks has disabling, belatedly diagnosed mental health problems. That, after Mum walked out when he was three, he had been raised single-handedly by ineffectual, addled Dad and had received no formal education, and was barely able to communicate. That his was therefore a world of perpetual silence and frustration, governed by a malign host of psychological, behavioural and psychiatric disorders that had culminated, since the age of fourteen, in a procession of Youth and magistrates’ court appearances for the various petty offending – mostly criminal damage and public disorder – in which his frustration was manifested. And that, as his condition deteriorated, he had spent his nineteenth birthday in a secure unit, having been sectioned under the Mental Health Act, until upon his recent release returning to live with his dad.

  All this I learned at court when, desperately searching for information and thwarted by the solicitor’s refusal to pick up the phone, I resolved to pester the court probation officer, Martin, to dig out an earlier pre-sentence report from Darius’ last appearance before the courts. Combined with the MG5, this enabled me to piece together the ghastly tableau of Darius’ existence.

  The clue to the informational void on my brief lay in the name of the solicitor typed unassumingly on the backsheet: Keres & Co. I use the term ‘solicitor’ loosely, because proper criminal solicitors are nothing like the amoral charlatans pretending at law that Keres represented. It is difficult to describe their malevolence without it reading like the character biography for ‘Bad Lawyer 1’ in a treatment for a 1990s screenplay. Every aspect of their existence – their modus operandi, the people they employ, the values they embody – was unyieldingly foul. The one positive is that such firms are fortunately a tiny minority, but nevertheless, exist they do, and for a first-time entrant to the criminal courts, your unwariness is their gain.

  Their model for getting clients through the door relied not on a reputation for quality of service, but on ‘fixers’. While it would be naive to ignore the reality that solicitors have to cultivate good relationships with the type of people that most of us would rather pretend didn’t exist, the use of fixers is a particularly ugly proposition. Fixers are themselves not qualified lawyers – although they may occasionally brand themselves ‘legal associates’ or some other such semantically null title – and are often far closer to the roots of organized crime than a professional relationship should involve. They know people who know people, and when there’s an arrest for a serious offence, the fixer is the one dripping honeyed words into the ears of the criminal community elders to secure the opportunity to tout the defendant’s right to representation to the highest bidder. If, for example, there’s a giant drugs bust that looks likely to lead to a lucrative trial, the fixers and the Keres solicitors will be sniffing around the pubs, courts and prisons for an opportunity to lure the defendants away from their instructed solicitors and towards the brilliant wolfish smile of Mr Keres. The means of persuasion are often material – new trainers, contraband cigs in prison, a nice cash deposit in the girlfriend’s bank account – but just as frequently fall back on the simple device of false advertising. Keres & Co. were peddling post-truth back before it was popular. We guarantee to get you a not guilty, they ooze. We’ll get you the best barrister – we have all the best barristers, they spin like a poor Donald Trump parody. Sometimes they will indeed instruct very good barristers – the individuals in my chambers whose returns I was covering were excellent advocates. I don’t know how on a human level they could bear to associate with Keres, but they seemingly accepted his malignancy as the price to pay for work. Other times, however, the Keres of this world will not instruct good counsel. They will keep the brief in-house, and instruct their own, lowly paid and even lower-ability employed advocates; barristers and solicitor-advocates tarnishing the brand with Ratner-style recklessness. These advocates barely know the law. They barely know the facts. When they know the facts, they think nothing of lying outright – be it to the client, their opponent or the judge. On numerous occasions, faced with one of these clowns as my opposite number, I have had to correct something said to the judge which directly contradicted what they had told me moments earlier. Everyone in the robing room and no doubt everyone in the judges’ dining hall rolls their eyes at the mention of these names.

  Alternatively, they might instruct an ‘independent’ barrister whose independent commitment to professional ethics is not a bar to him slipping Keres a tasty percentage of his brief fee in return for his instructions. Advocates’ fees are paid separately to litigators’ fees and directly to the advocate, to avoid the market distortion and dirty race to the bottom that would ensue if solicitors instructed barristers based not on ability but on how much of the advocacy fee they were willing to shovel the solicitor’s way. And the vast majority of solicitors and barristers observe this strict separation. But every robing room will echo with whispers over that one barrister whose steady influx of high-quality work from a single, Keres-esque firm belies his modest talents, and in less-sober moments at Christmas parties, confessions will slip from mulled lips as to the existence of the informalized, forbidden referral fee lying at the heart of that arrangement.

  Once the client is snared and the legal aid certificate is transferred, Keres’ work on the case ends. They may occasionally venture to court or to prison for a quick PR visit with the client, but nothing constructive will be done on the case. If a decent barrister has been instructed, she will usually compensate for the solicitor’s dereliction of duty by effectively doing the litigation herself. Otherwise, if it is a magistrates’ case handled by Mr Keres himself, or a Crown Court case kept in-house or briefed on a referral fee, Keres & Co. will force the client to plead guilty, or proceed to trial and wing it. If the client is potted, they hope that he’s too vulnerable or dim to identify their culpability. If he is acquitted, Mr Keres’ reputation is enhanced. While I would usually say that the market in criminal litigation operates effectively – heavyweigh
t crims are usually sufficiently long in the tooth to recognize a decent firm – the Keres buck the trend. Somehow, by hook or, more aptly, crook, they manage to trap some repeat clients for years.

  Such as Darius, I would come to learn. As I stepped into the cell conference room and squeezed myself behind the table into the screwed-down seat closest to the wall (by the panic button, as my pupilmaster always taught me, ‘Just in case the little bugger gets frisky’), I refreshed my memory of the allegations from the single-page police summary.

  One evening a few weeks previously, Darius had asked his dad for some money to buy cigarettes. Dad said no. The argument escalated, and Darius picked up a plastic tray and threw it towards Dad, missing him by a good few feet. As Dad and Darius squared up to each other, Darius pushed Dad onto the sofa, before grabbing a fiver from Dad’s wallet on the side and running out. Dad called the police, and Darius was charged with robbery.

  His first phone call at the police station, or rather the call placed on his behalf, was to Keres & Co. Solicitors. And their craftsmanship was evident. As Darius’ home address was his dad’s house, he was remanded into police custody. The magistrates, with no alternative bail address sought by Mr Keres, remanded him at the first appearance, where he had remained for the best part of a month until I met him. I would learn that the bastard Keres hadn’t bothered to visit Darius in prison, let alone tried to secure his vulnerable young client a place at a bail hostel. He hadn’t spoken to the CPS to try to persuade them against prosecuting in the very sad circumstances. Darius, who had been advised to give a ‘no comment’ interview, had not been asked to give Keres any instructions as to what had happened that evening. Nothing of relevance, such as psychiatric or medical records, had been obtained. The prison had not been informed about Darius’ medications. No intermediary had been arranged to help Darius communicate with me or the court. Keres had just left this boy to rot in his world of perpetual silence.

  The question I was restraining myself from asking as a red-eyed Darius sloped into the seat opposite me was Why them? But more pressing matters were at hand. Over the next hour, we fumbled through speech and gesture as I learned about his life, taking what instructions I could. As I led him through his previous convictions, the explanation for his dependency on Keres started to transpire. He’d always gone with them, since they approached his dad outside the Youth Court after one of his teenage appearances and successfully peddled their snake oil. He trusted that nice Mr Keres, who had always told Darius to plead guilty before the magistrates, whether he’d done it or not, ‘as it’s better for everyone’. Keres would never arrange for an intermediary at court – Darius would just rely on Mr Keres telling him at the end of the hearing what had been said and admitted in his name. The communication channels were obviously imperfect: for an offence of criminal damage earlier this year, Darius had been given a suspended sentence, of which he was now potentially in breach. When I mentioned this to him, it came as a complete surprise.

  As the cell staff started banging on the door to alert me to the frantic loudspeaker announcements – All counsel to Court 4, immediately. IMMEDIATELY. All counsel, IMMEDIATELY – it was plain that we were not going to make any progress in court today. I, or rather instructed counsel, needed a lengthy conference with Darius, with an intermediary and the prosecution papers, before he could be properly advised on his plea. As I tumbled into court, spitting my profuse apologies for keeping everybody waiting, I tried to mentally formulate a form of wording that would not only secure the adjournment, but would impress upon the judge just how horrendously negligent Keres had been, in the hope that he would say something – I don’t know what – that I might be able to feed back to Keres in my furious attendance note. Sadly, the judge was disinclined to hear Darius’ tale. As I started to set out the bail position, the judge cut me off: ‘I see there is no intermediary. Presumably you want an adjournment?’ I nodded, but before I could qualify my agreement with further detail, the judge snapped up straight, said, ‘You can agree a date with the clerk,’ and marched off, stage right.

  I asked the CPS prosecutor if it was possible to get a copy of the papers earlier than usual, explaining the position, and she was most helpful. Due to the CPS’s photocopier being broken, she was unable to give me a copy at court, but assured me that if my solicitors rang the office, a copy would be posted or emailed to them.

  Having arranged a new date for a fortnight later, which I assessed gave plenty of time for trial counsel to have a conference with Darius and for Keres to do something about his bail, I said my goodbyes down in the cells, and set about drafting a lengthy, irritable attendance note, setting out in bullet-point, moron-proof form what Keres had to do in the month between now and the next hearing. Get the papers, visit your client, try to get the kid bail, speak to the prison to make sure he’s got his meds, arrange for an intermediary, have a proper conference with trial counsel. The fucking basics. The phrasing was politer than that, but only slightly. I emailed a copy to instructed counsel so that he could see the position, and suggested that he start chasing Keres straight away.

  That, I thought, was the end of my association with Darius. Two weeks later, we were reunited. His instructed barrister again ended up being stuck in a trial that overran, and again the case found its way into my diary. When the clerks handed me the papers the night before, I noticed with a plunging heart that they appeared as devoid of content as they had a fortnight earlier. When I got to court early the next day, Darius was still in the cells. He still hadn’t been visited. No one had applied for bail for him. He’d been off his meds for a month now. There was no intermediary arranged. He still didn’t really understand why he was in prison. There had to be another adjournment. When I got back to chambers I kicked a wastepaper bin across my room in boiling, impotent rage.

  I later found out that instructed counsel had, following that adjournment and my second, even less temperate note, bashed heads together and persuaded the CPS to speak to Dad and reconsider the public interest in the prosecution. And, a few weeks later, the proceedings were discontinued, precipitating Darius’ release. But he had served close to two months in custody in conditions of the utmost inhumanity – deprived of contact, medication and information – as a direct consequence of the professional negligence of his solicitors.

  And while Darius’ was the first case to reduce me to tears – gulping undignified sobs in a rusting cubicle in the court toilets for the sadistic lottery of life that had bestowed the vampiric Keres upon this broken boy – his was far from the only Keres special to cross my path. Every ‘brief’ that entered chambers from this firm was predictably grim.

  There was Adam, a gentleman I met on the day of trial who had spent three months on remand in custody awaiting his magistrates’ trial for a minor assault. Keres had poached him from another firm a month before trial, but had not obtained any of the prosecution papers from the previous firm, nor had Adam been visited in prison. Had Keres done so, he would have learned that Adam suffered from severe psychiatric difficulties, as was immediately plain when, upon seeing me in the cells, he accused me of being a government apparatchik sent by the Labour Party to assassinate him, before dispensing with my services.

  There was the case of Elizabeth, a young college student who had never been in trouble, accused by security staff of disorderly behaviour at a gig. She swore blind that it was mistaken identity, and had told Keres the night that she was arrested that the entire area was crawling with CCTV that would exonerate her. Keres did nothing to obtain it. By the time I met her at trial four months later, it was too late. The CCTV footage had long been deleted. And, notwithstanding my protests to the magistrates about the unfairness of a trial without such vital evidence, Elizabeth was convicted, despite being quite probably innocent.

  The list could become a litany. The inaction of Keres and the paucity of his work was a running joke in chambers, although levity was far from anyone’s mind. I told the clerks that I was refusing to do any fur
ther work for Keres after Darius, and several similarly disillusioned juniors joined me. But looking back, I see that I could, and should, have done more. I shouted loud to the senior members of chambers, but I could have shouted louder. After my very first Keres case, I should have recognized their service for what it was – professional negligence – and reported them to the Solicitors Regulation Authority. I could have confronted Keres directly, and told him exactly what I thought of him and his squalid ensemble, and that I would strongly advise all his clients to seek alternative representation.

  I would like to think that now, with a few years under my belt, I would. But back then, I did not. I was complicit in the conspiracy of silence that allows the Keres of this world to prosper. I attribute it to naivety and weakness rather than self-interest or financial preservation; one of the many joys of working for Keres in magistrates’ trials was that you would never be paid. Magistrates’ work, unlike Crown Court advocacy, is paid directly to the solicitor for them to pass on to the advocate. Keres never did pass on the fees to the juniors. He knew that our chambers was too dependent on the big Crown Court work he sent in to kick up a fuss about baby barristers not being paid for magistrates’ cases.

  A few months after Darius’ case, as I was still wrestling with my conscience over what to do, Keres went into liquidation. They went down owing me close to £3,000 for the work I’d done over the years. As far as I’m concerned, if that’s the price to pay for no more Dariuses, it is worth every penny.

  But the sorry affair highlights a significant problem in the regulation of these firms. The Solicitors Regulation Authority (SRA) is often accused of doing too little to step in to address the various misdeeds of Keres-style outfits – for example, poaching – to the constant frustration of legitimate firms.13 But, in fairness to the SRA, it can only act on reports. And all too often, misbehaviour is unreported.