1.         The Expansion of Legal Aid

1.1       In the 1970s and 80s there was a large expansion of Legal Aid which was at that time essentially an adjunct to the other work of solicitors firms, there being some 7000 suppliers, Legal Aid work sitting alongside normal commercial work like conveyancing, probate and contract. 

1.2       Administered by the Law Society the hourly rates were not as high as those prevailing in the private client and commercial world but nevertheless were related to the cost of time.

1.3       The cost of time was calculated by assigning a target for chargeable hours for each fee earner, usually 1200 hours per annum, a notional salary for solicitors and partners and dividing overheads by the numbers of fee earners to find out applicable hourly rates.

1.4       Provision was made for lower hourly rates for travel and waiting, a problem that has always been apparent in legal aid work which is often not office based but court based, and in the case of crime, prison and police station based, with the consequence that large parts of chargeable hours were consumed in lower paid hourly rates. Fixed fee schemes containing ‘rolled up’ time spent travelling and waiting ‘hide’ the true costs of cases within their simplicity. 

1.5       However, in terms of cost benefit it is also to be noted that the organisation of courts and the interaction of advocates and the tribunal and particularly the flow of work provided by ushers in Magistrates Courts is highly efficient; face to face interactions provide courts with good quality information upon which to base decisions. 

2.         A Changing Supplier Base

2.1       As Legal Aid expanded the Law Society administration was unable to cope. Delay in payment became a well-known public fact and eventually the decision was made to move the administration of Legal Aid away from the Law Society into the hands of an independent Legal Aid Board. This was at inception essentially a cashier organisation but it also had within it a desire to promote and implement policy. 

2.2       What had also happened is that a number of more specialist Legal Aid suppliers had come into being whose main purpose was to provide Legal Aid services in the community, usually both civil and crime covering the full range of civil, family law, welfare benefits, housing, mental health and immigration. In essence a numerous and independent “legally aided” sector was a by-product of the expansion of funding and scope.

2.3       It had been, and remains, a major component of this system that the supplier base provides its own capital in order to set up organisations, provide premises and employ people.  In this sense it is a free market where entrepreneurs have invested their own capital identifying gaps in the market and establishing businesses.

2.4       There were parallel changes in the private solicitor marketplace as conveyancing lost its fixed fee structures and in the more successful private client firms partners often became dissatisfied with low hourly rates of return in legal aid work and began shedding that work, a process accelerated from the 1990s as Legal Aid rates became frozen and eroded by inflation.  Lord MacKay decided to abolish his Legal Aid Advisory Committee.  The current panel constituted to assist in the review of criminal Legal Aid is a distant echo of that forerunner.

3.         The Rise of Contracting

3.1       The Legal Aid Board brought forward the idea that suppliers would be contracted to supply Legal Aid services coupled to the idea of a quality mark.  This had some basis in academic research (see the book, Standing Accused by McConville and Others which lamented poor standards in criminal work). 

3.2       Other major structural developments were the establishing of the Crown Prosecution Service following major public scandals involving forced confessions by police officers and also the technological development of tape recording which allowed a new mode for conducting interviews.  The 1984 Police and Criminal Evidence Act also introduced the idea of the delivery of rights by independent Custody Officers whilst extending police powers.  One particularly significant development was the decision to allow the police 24 hours in which to detain a person before charge.  This was fiercely debated with 12 hours as a viable alternative but this was rejected and 24 hours underpins the subsequent development of a lackadaisical approach to the investigation whilst the person is in custody. Providing access to legal advice in the Police Station was a major costs driver.

3.3       Initially contracting was to be voluntary and was expressly said not to be a policy which would become compulsory.  Of course it did and very unfortunately contracting become a major dividing factor, there being separate crime and civil contracts.  This rupture of services had profound consequences on the market causing firms to choose between spheres and although many continue to operate both there was also a large bureaucratic burden.  That burden was another factor in private client firms continuing to abandon Legal Aid services.

4.         A Rich Ecology

4.1       What the entrepreneurial activity had created, in the context of the expansion of Legal Aid to meet need, was a rich fabric of firms and services.  We have sometimes likened this to the ecology of a rainforest, diverse, valuable and especially establishing in local communities a variety of client choice and a feeling amongst clients, usually poorer and working class, that they had access to justice through “their” solicitor.

5.         Reform and the Market

5.1       The foundation of reform was a myth, that Legal Aid expenditure was “out of control” accompanied by a sinister subtext that the forces driving expenditure were the supplier base improperly exploiting Legal Aid.  Academic research showed that the driving factor was in fact the rise in need and volume of cases and a tsunami of legislation, especially in crime.  Nevertheless this myth took hold. 

5.2       The Paradox in the early 2000s was that the government was substantially investing in workers compensation schemes and rightly so, but whilst it spent billions on the one hand in those schemes it sought to cut Legal Aid expenditure by millions on the other.

5.3       Lord Carter proposed a crude simplistic trade off of volume for price a theme that has bedevilled so called “reform” ever since and dominated proposals for change.

5.4       The proposals that came forward were administratively complex and essentially foundered as they were unable to resolve contradictions between rewarding incumbent suppliers with market share and providing opportunities for new entrants, whilst also hopelessly confusing the nature of the market with other markets where there are multiple opportunities for suppliers to bid for work.

5.5       This is worth spelling out.  The Ministry of Justice is a single purchaser of Legal Aid services.  It sets prices.  The suppliers when they bid for work (however defined) face an existential crisis.  If their bid fails then they are out of business.  There is no alternative place for them to bid. 

5.6       In other words this Legal Aid market for services is not like, for example, the NHS, which procures across a vast organisation for multiple services offering bidders the opportunities to bid for difference sizes of contract in different geographical areas in circumstances where, therefore, the failure of a bid is not terminal to their business.

5.7       It was an historic strength of the system that it was open. In other words there were no limits on the number of contractors and sufficient prices allowed a degree of entrepreneurial activity to fill in gaps in the market place. As prices have declined so has that activity.  However there are two other benefits from the way in which this market has operated.

5.8       A key element to successful entrepreneurial activity has been establishing reputation and this has been driven by the other key element of client choice.  The introduction of the Duty Solicitor Schemes enabled firms to source a more “captive” work stream and gain clients through duty solicitor activity in courts and police stations. Nevertheless it still remained and remains an important element for all firms that the quality of what they do is sufficient to draw that client back to them or achieve word of mouth referrals. In this way client choice drives quality. 

5.9       Unfortunately restrictions on the ability to transfer Representation Orders have led to a decline in consumer/client choice.  There is a consumer paradox for people who are initially arrested, represented by a duty solicitor and bailed or released under investigation.  At that stage, pre-charge, there is no Legal Aid available and they are actually free to make enquiries in the marketplace to find out if the solicitor they have accessed accidentally as the duty solicitor is the person best placed to represent them or whether they could find an alternative with better reputation. In this way consumers are free to move around within the market.

5.10    However, if for example, a person is arrested for murder, has a duty solicitor and is remanded in custody they then find it very difficult to change due to the rules which to this degree undermine an aspect of client choice.

5.11    Contracting has also restricted the market by restricting the opportunities for new entrants to the start of each contract cycle as well as being a system which has severed civil and criminal services. The most startling reform that could be contemplated would be ending contracting completely.  This would be a return to a pre-contracting era where all firms needed to do was to keep within the rules in respect of claims and payments.  In other words that the work was properly done and claimed.  Such a more open system would certainly allow new entrants and with other incentives and structural changes, allow firms to re-establish mixed practices of civil and crime and provide more local integrated services needed to meet the vast unmet need.

5.12    It is not difficult to be imaginative about what is possible in the Legal Aid market.  The Legal Services Commission as the successor to the Legal Aid Board had a worthwhile initiative through which firms took on trainees who were subsidised directly by the LSC in return for a contractual commitment to stay in Legal Aid work for a period of time.

5.13    Legal Aid as a bespoke subject ought to be an option within law school courses and participation can be leveraged through grant, the relief of debt and payments to suppliers to provide subsequent training contracts. 

6.         A Fundamental Problem

6.1       Underpinning access to justice are the rights to a fair trial and equality of arms between the parties.  Crucial is the adversarial system working properly to ensure that the court has before it all admissible evidence in order that the fundamental objective, which is the pursuit of truth, is achieved.

6.2       No one is facing up to the work, time and costs issues posed by the explosion of electronic material.   It simply means that in cases where it is relevant (and there is often a contest about what is and what is not properly served as evidence or unused material) the evidence has got be examined and deployed by prosecution and defence.  These are tasks which have made the process of litigation more time intensive and more costly.  This is for the police as investigators, the prosecution as an independent prosecutorial body assessing the evidence and for the defendants. All require extra resources in the long term in a degree of magnitude to properly cope with the technological development.  There is no shortcut and it simply requires more money and acceptance that this will be a demand led system that cannot be contained with fixed “envelopes” of cost. 

7.         The Erosion of Value

7.1       The above argument in relation to the explosion of electronic material forms a context for the major other issue which has been the erosion of value.  It is not possible for solicitors and counsel to continue negotiating around the same envelope of money being deployed for cases in new ways.  Inventing other proxies for value or combining proxies with time or combining other structures of payment such as standard fees, non-standard fees, higher-standard fees still has to account for both the explosion in evidence and the fact that current values have been eroded to a degree where the work is unsustainable.

7.2       That unsustainability is evidenced by the recruitment and retention crisis within solicitors firms conducting criminal work.  It is also evidenced by the almost complete separation of private client work and Legal Aid work within the solicitor’s profession and by the advancing age of the cohort of duty solicitors.

7.3       Research might also reveal a very similar pattern in relation to the ages of partners or directors of firms within the supplier base which is also similarly advancing. Career opportunities have been truncated by the short horizon of business, the uncertainty of profits and the lack of career paths. 

7.4       One way of exiting is to the Crown Prosecution Service which now offers substantially better terms than are available generally within the defence community.  Another way of exiting is to simply abandon the work and take up different careers. For students with vast debt Legal Aid is deeply unattractive.

8.         Access to Justice

8.1       It was a by-product of the expansion of Legal Aid and the availability of firms within communities providing a range of legally aided services that many millions of people could buy into the idea that there was a degree of access to justice. 

8.2       Much is written about alienation, voices not being heard, and the unrepresentative nature of politics, inequality and the socially excluded. Legal Aid cuts, in particular LASPO, have formed a backdrop which has accentuated exclusion. 

8.3       Exclusion also has direct economic consequences.  A family with less income because they are unable to challenge welfare benefit decisions live in greater poverty.  Children in greater poverty   are more likely to fail in the education system, often being excluded, more vulnerable to drift into gangs, crime and county lines drug dealing.  Similarly challenging are living in conditions of disrepair, losing housing and the gross disruption of family life where there are cycles of imprisonment, alcohol and drug abuse and devastating adverse immigration decisions and deportation.  Many live and are brought up in deeply hostile environments and too often the inability of fathers to access contact and maintain parenting has potentially disastrous consequences. 

8.4       Add to these other factors such as loss of youth clubs, social workers, and the pressure of schools to exclude pupils.  It is no wonder that the world of gang affiliation with its sense of identity and drug dealing giving access to otherwise unattainable riches is such a lure to young people and indeed older people involved in organised crime.

8.5       The extent of organised crime has been highlighted by the National Crime Agency in its bid for between £2-3billion to combat what it describes as a major threat to security and wellbeing.  Will that funding and these initiatives drive more cases into the Criminal Justice System?  The idea that more cases will arise which demand more resources stands in stark contrast to falling volume as a result of the debacle of the RUI stance adopted by many police forces in relation to the many thousands of people arrested. 

8.6       What all of this means, including the review itself, is an extremely unstable environment for Legal Aid practitioners. Low margins make firms highly vulnerable to changes in case volume and case mix.  A two year “review” is irrelevant to the immediate crisis.    What is required is at least a short term injection of funds, the making good of the last 8.75% cut which was predicated on the manipulation of the supplier base producing fewer suppliers with higher volumes, which never took place, and which was in itself arbitrary and unfair.  What is also needed however are not only higher levels of remuneration, but an imaginative reworking of incentives and structure to support an independent legal profession and a degree of stability which would allow businesses to flourish whilst meeting need. 

9.         London and its Hinterland

9.1       At over 650 square miles with the largest concentration of population in the country London poses particular problems for Legal Aid lawyers.

9.1       It is an area of higher cost. Those costs relate to the costs of business premises, higher wages and higher costs for employees for accommodation and travel.  In a recent Reed Business Support Salary Guide for 2019 an Office Manager in London is said to command a wage of £40,100.  In the East Midlands the figure £23,700 and the North East £29,200 and the North West £23,900.  In the South West and Wales the figure falls to £22,300. 

9.3       Traditionally the particular costs base of London were recognised by additional London Weighting supplements on hourly rates.  There is a powerful case for the reintroduction of London Weighting within any newly devised scheme.

9.4       Another myth is that there was an oversupply of firms in London.  This is not true and the number of firms is proportionate to the population.  This was established in passing by the KPMG report in the failed debacle of tendering Duty Solicitor Schemes.

9.5       London is the centre of political protest and government and inevitably public protest type crime tends to arise more often and so does financial crime attached to London being the centre of financial services.

9.6       A fundamental problems for practitioners has been the complete absence of planning.  There is no court near a police station which is near a prison, they are spread haphazardly.  The system has developed without the slightest regard for efficiencies that might arise from locating services together.  Indeed plans to relocate remand prisoners only in Wandsworth, Belmarsh and Highdown, which is actually outside London in Sutton, would only exacerbate the problems.

9.7       Very large distances must now be traversed across London for defendants, ‘victims’ and witnesses and indeed all the participants in the court process. 

9.8       The idea has been advanced frequently by the LCCSA for over a decade that there ought to be reform of the Duty Solicitor Scheme.  At present solicitors join two court schemes plus associated youth court schemes but are allocated to as many as eight or nine 24 hour police station schemes depending on the location of their office.  This thins volume in any particular court.  Bringing the schemes into line so that solicitors are allocated two or three police stations schemes most contiguous to their office and the court schemes ought to produce a greater volume of work for firms in their local courts. 

9.9       Incidentally scheme inflation, by which many more people joined each individual scheme, was a product of a policy decision by the LSC to automatically allocate all qualifying solicitors, depending on the whereabouts of their office to every scheme that was available. 

10.      Opportunity or Threat? The Criminal Legal Aid Fee Review

10.1    The immediate impulse for the review was the promise to the Bar to review the AGFS arrangements.  That promise was then conflated with the existing idea of a review of the LGFS (no doubt more urgent from the perspective of the MOJ after the successful JR of their plan to cut £30M or so from the LGFS Scheme) and then in turn extended to encompass all fee schemes, police stations, magistrates’ courts and the VHCC scheme.

10.2    Three elements dominate legal aid fees for the last twenty five years.  The erosion of fee structures by inflation.  The endless cuts to EVERY fee scheme. The hugely bureaucratic, unmanageable and failed ‘reform’ proposals encompassing Best Value Tendering, Price Competitive Tendering and 2 tier contracting of duty solicitors schemes and other similar debacles including VHCC and family contracts. The 2 Tier debacle was accompanied by a completely arbitrary 17.5% cut in fees.  What is extraordinary is the sheer scale of that cut; 17.5%, not 1.5 or 2% but this huge figure.  Subsequently 8.75% was restored after the failure of the scheme, still leaving practitioners with a completely arbitrary 8.75% cut.

10.3    The common theme has been an approach to Legal Aid as a ‘market’ (fundamentally misunderstood, see para 5.) to be manipulated with the sole objective of driving down price (cuts) encouraged by overtures from a handful of ‘larger’ suppliers who sought greater volume and market share.  In civil the hatchet of LASPO simply removed access to justice for millions of people and further disrupted and eroded the supplier base. . 

10.4    What has been absent is any coherent view of Legal Aid based on principles of fair trial, equality of arms or access to justice through increasing the resource that enables people to believe they have the means (legally aided lawyers) to pursue their rights, that their stake in society and belief in its fairness, in the application of the rule of law to them, has meaning because they can rebalance the unfair advantage of ‘others’ who have the power (landlords, Councils, the DWP, insurance companies, the Home Office, Police) by instructing ‘their’ lawyer. This is the real context of rearranging fee structures; it is not an end in itself but only one component of policy that ought to have this enabling outcome. This Review perpetuates the division of crime and civil being confined to criminal Legal Aid fees when the reality is that legal aid services are accessed across lifetimes in multiple ways as need overlaps the civil and criminal boundaries.

10.5    That vision is entirely absent from this Review which is framed as the ‘right time to think more widely about the future of criminal legal aid schemes’, without any commitment to any funding increase, only to the ‘right level’ of legal aid provision. It is most likely to be a missed opportunity and actually another ‘cut’.  The ravaging of value by inflation will not be addressed by a permanent compensatory mechanism, and any ‘ambitious’  attempt to manipulate the market will yet again misread its reality and lead to JR and debacle.  Is this to be a moment (actually a year or two with continuing ministerial reshuffles) for reinvigorating access to justice (restoring the £1 billion about 1/800^th of government expenditure) or another episode in the erosion of Legal Aid and its supplier base?

10.6    In the period 2004/2005 to 2019 Government Expenditure rose from around £400 billion to over £800 billion.  In that period removing £1 billion from Legal Aid was a political choice.  The courageous and correct political choice would be to restore access to justice by expanding the Legal Aid spend by £1 billion. 

10.7    The complete absence of a commitment to restore funding levels and the absence of vision are depressing.  There is little to indicate that the trajectory of the history of Legal Aid will change.  Rather that the reality that will emerge will remain one of cuts, loss of services and more people who believe that justice is not to be found within the society in which they live.

 Greg Powell

LCCSA t

The tide of public opinion should not influence law enforcement and justice, but experience suggests it can.

This was true of our client Richard Holden who was wrongly accused of sexual assault at a Christmas party. He was investigated by police operating under a ‘culture of belief’ in all sex complaints and then charged a short time after the #metoo campaign had led a string of sex-scandal allegations around Westminster.

As a Special Advisor to Sir Michael Fallon, our client was a tempting target and in a vulnerable position. Once charged the state brought to bear the full force of its experience and resources. A case was built using several detectives from a specialist serious rape team and the highest grade of prosecutor was selected to present the case. The state assembled a team used to working in murder, terrorism and serious rape.

While the state spent 18 months preparing for the trial it was clear that much vital evidence had been discarded and was left to us to retrieve, preserve and advance at trial.

Mark Troman acted for Mr Holden from the initial police interview through to the conclusion of the trial. Reams of digital evidence were recovered from several sources and over 25 witnesses interviewed to ensure the defence case was ready. Police disclosure prior to trial was inadequate and was challenged throughout. No document was left unread, every witness was contacted and every digital source considered.

It took the jury a little over 30 minutes to unanimously acquit our client and led the most senior judge at Southwark Crown Court to leave court with the remark that he “left court without a stain on his character”.

After the trial Mr Holden said:

“Mark was utterly unflappable and calm over the fifteen months of my case – the most difficult time of my life – including at my initial police station interview, which was incredibly reassuring.  He dealt very calmly and professionally with an investigating officer who was difficult and obstructive, ensuring at all times that my concerns were addressed and he kept me fully abreast of developments. Mark was determined and tenacious in pursuing evidence, offering solutions but also at the same time willing to listen to my ideas, and flexibly adapted as the case unfolded over many months. Throughout, Mark maintained a clear strategic mindset that was always focused on achieving the right outcome.  I cannot praise his skill and professionalism highly enough.”

This case featured in the Daily Mail and Mirror.

 

In the year that Lady Hale was appointed as our first female President of the Supreme Court, the Ministry of Justice (‘MOJ’) simultaneously tried to introduce one of the most regressive and discriminatory policies of recent years, the Flexible Operating Hours (‘FOH’) pilot. The juxtaposition could not have been more stark. We have waited centuries to see a woman, and one the greatest lawyers of our generation, reach the very top of the legal profession. As soon as she does, the MOJ try to close the gate behind her.

Garden Court Crime Team joined with many professional representatives, including the Bar Council, Criminal Bar Association, Criminal Law Solicitors Association and London Criminal Courts Solicitors Association to oppose FOH. www.gardencourtchambers.co.uk/open-letter-to-lord-justice-…/

The pilot was postponed for ‘review’ on 21st September. HMCTS say that it will resume in spring of next year, much improved and having taken account of the ‘constructive criticism’. Personally I hope it will be consigned to the dustbin.

FLEXIBLE OPERATING HOURS – WHERE DID IT ALL GO WRONG?

The question is not one of recrimination, but of what went wrong. Why was the Government so out of step with the efforts made by the professions to support and propel our women into the premier league?

Advancing women’s careers, within all facets of the criminal justice system, is accepted by all of the main political parties as a public good. To that extent, feminist politics has succeeded in influencing the political discourse for women criminal justice workers. Setting aside, for the sake of the brevity of this article, the sexism which then blights many of those careers, what we lack in the political sphere is the integration of feminist principle into the policy making that affects the criminal courts, as a workplace.

The entreaties of various Conservative Lord Chancellors in recent years, for the professions and judiciary to ‘do more’ to move women into senior positions rings hollow, when the policies that influence the pool from which our talent is drawn are sexist ones. FOH was, and if HMCTS persevere with it, will remain, a prime example of the determination of this Government to do the opposite of what it preaches.

FEMINIST PRINCIPLES AND POLICY MAKING

The criminal court, analysed as a workplace, is complex. The fairness of trials, treatment of complainants and efficient use of resources must, and do, take centre stage. But if it our commitment to gender equality is to amount to more than fine words, that commitment must be at the heart of policy too. FOH fell at that hurdle.

What was interesting about the FOH debacle, is that it demonstrated just how far the criminal bar has come. Male barrister spoke with ease about the unwelcome ‘gender impact’ of the proposals. In robing rooms up and down the country, the criminal bar got it, and acted as one. Extended sitting hours, for extended is what ‘flexible’ turned out to mean, are simply incompatible with retaining women (who remain the primary carers of small children) at the criminal bar, for long enough to see sufficient of us in number through to senior positions.

This is not because we are work shy; unable, like our medical brethren for example, to ‘put in the hours.’ A point well made by a male colleague at another set, married to a female hospital consultant, and parenting two young children. He explained to me that he too could do round the clock shifts at unsocial hours and still organise childcare that complemented his job, if, like his wife, his shifts were set months in advance, with defined start and end times, at a known location.

As a criminal practitioner, nothing is set in stone. Trials run over, go short, we move courts, sometimes on a daily basis. We do not clock in, then clock out. Our work starts when it starts, and ends when it ends. Our job has many benefits, highs, and satisfactions; but defined working hours are not one of them. Sitting hours are the only stability in our working day and even those are not always certain; early starts and late finishes are nothing new. But extended hours, from early morning, into early evening, is another matter altogether. Sitting hours are not our working hours. And our working hours are, like many jobs, both excessive and unsocial.

THE WORK WE DO

The issue stems from the immutable nature of the work that we do. Trials are not, and never will be, predictable, they do not always start and end ‘on time’. Missing holidays, social and family engagements; working across weekends and evenings; early hours of the night spent sitting quietly at a desk, mastering the next brief; this is the silent workload of the average criminal barrister. It is into this abyss of work that the FOH proposals encroach. It is perhaps a shame that the men of the criminal bar do not yet feel sufficiently empowered in sufficient numbers to simply lay down their wigs and say enough is enough: our present working conditions are not fit for human consumption; albeit good for those that do, and we welcome them as honorary sisters to the cause. But for women just returning to practice, and carrying the bulk of the caring responsibility, extended sitting hours in addition to the present workload amounted, in all intents and purposes, to a bar to the criminal bar.

Save for those who, understandably, find live in 24 hour childcare to be the only practical solution (and let’s face it, our most junior juniors are not on incomes that stretch to ‘live in nannies’ or ‘au pairs’), most women barristers (and men) with children, now rely on the same childcare provision as the ‘outside world’; nurseries, childminders, an army of unpaid family care, breakfast clubs, after school clubs and day nannies. And that child care comes primarily within ordinary working hours, of 8am – 6pm.

It is perhaps an oddity of a job which, on any sensible analysis, should fit within an approximation of those hours, that from a pupil barristers first day on her feet, we teach her that evening and night time work is, and will remain, the norm for the duration of her working life. That said, and perhaps because we are hardened to working late and starting early, court sitting hours do lend themselves to a ‘flexible working life.’ Factoring in commuting time across our various circuits, an ordinary sitting day of 10-4.30pm, with conference time before and after, allows most parents to get children to their childcare establishment, and home again in the evening, without completely abandoning parenting duties between Monday morning and Friday evening (save for the early mornings and late evenings spent attending further client conferences and chambers meetings). This ‘flexible operating system’ has worked, for increasing numbers of women, for many decades. Bedtime routine with baby and then burning the midnight oil is a familiar routine for any parent practising at the criminal bar. Women were routinely left with a stark choice in the not too distant past, the bar or children; not both. That we now do both is progress indeed. The Bar Council get this, and under Andrew Langdon’s superb leadership introduced the ‘Bar Council Protocol for Sitting Hours’ earlier this year, encouraging all courts and tribunals to sit only within ‘ordinary sitting hours’. www.barcouncil.org.uk/…/…/sitting_hours_protocol_-_final.pdf

WHAT CAN FEMINISM DO FOR YOU?

It is consequently a feminist issue, when our self employed status, which on paper lends itself well to combining work and life commitments, in practise too often fails to deliver. Why?

Women join the criminal bar in equal numbers to men, and leave in equal numbers to men in the early years due to the work and financial pressures, which are brutal. But for those that come through that baptism of fire, there is a sea change after pregnancy, when we regularly and routinely sacrifice some of our brightest and best women, but less so men, because the cost of trying to continue on in practice with young children becomes too great. In years gone by the profession would have smiled sympathetically and waved good bye, with platitudes about the criminal bar ‘not being for everyone’ (women). But times have changed. The bar is not leaving women behind. Women are leaving us behind. These women don’t go back to the kitchen. They go into other highly paid areas of work, with working conditions that make for an easier life. We haemorrhage talent to other sectors, which then have the benefit of highly skilled lawyers that we, the criminal bar, paid to train. Commercially, it makes no sense. Similarly, we cannot afford to become any more divorced from the community that we represent. Society will not continue to tolerate predominantly male clubs, subsidised, through legal aid, by the taxpayer. The same points carry equal force in relation to race and on many other fronts. The criminal bar remains too white, too upper class and too male. To do justice, we have to do better.

The starting point for policy reform, from a feminist perspective, isn’t rocket science. Two major concerns influence the decision making of a young women wondering whether or not to persevere at the criminal bar in the early years: money, and working conditions.

MONEY, MONEY, MONEY

We pay our most junior juniors too little. The payment scheme is weighted heavily in favour of those at the top. When the response to the AGFS consultation is announced, due imminently, we can but hope that the many representations made about this, including by my own crime team, Garden Court, have born fruit.
https;//gardencourtchambers.co.uk/garden-court-chambers-response-to-the-agfs-consultation/

The fees paid to barristers working in the magistrates, and in the early years of practice in the crown court, are unsustainable. It has resulted in a recruitment issue. It damages morale. But more than that, it is a gendered issue. The present fees scheme is a sexist one, based on a male model of the working life that long ago fell away. We are no longer a tribe of men working without career breaks, supported by unpaid domestic workers (wives). Women need to reach a financially sustainable level of income, at an relatively early stage in their career, to be able to afford to have children and continue on at the criminal bar. Our self employed status does not come with the cushion of paid maternity or paternity leave, flexible working on return, or even the certainty of a brief to come back to. We have to increase income at an earlier stage in the career cycle, if we want to retain women beyond pregnancy in equal numbers to men.

WARNED LISTS AND GOING DIGITAL – A GENDER ANALYSIS

Of all of the difficulties of our working lives, it is warned lists that are most obviously a gendered issue. The warned list system results in a total absence of certainty about working hours and income. It is wholly incompatible with a managed return to practice. Women post childbirth need at least some approximation of certainty about when, and if, they are likely to be in court. Paying for childcare out of a self generated income makes no financial sense if it is a gamble whether or not money paid out to a nursery or childminder, will ever be recouped. Warned lists are bad for complainants, defendants and, contrary to much of what is said, not required for the smooth running of the criminal courts (which managed perfectly well before they were introduced, as do a number of courts now which operate without them). But relevant to the point I am making, about the need to entrench feminist principles into the policies which structure our working lives, if we are serious about supporting our female practitioners into senior positions, the more certainty we can bring to the working lives of the most junior members of the criminal bar, the easier it will be for women to make a successful return to practice post childbirth. Warned lists are a feminist issue. Combine warned lists with FOH, and we may as well hang a sign across the doors of Crown Courts up and down the country; ‘young women with children, no longer welcome here.’

Anyone who has spent any time in the criminal courts in recent years observing lists, as opposed to trials, cannot fail to be astonished at the amount of time we lose due to inefficiencies born out of underfunding elsewhere in the system. And that loss of time is loss of income for our most junior members. Hours wasted at court do not incur a greater fee. Ask any Crown Court judge: prison vans that don’t arrive on time (or don’t arrive at all), video links that break, a continued reluctance to deal administratively with matters that on any sensible analysis do not require two barristers and a judge sitting in court (case management, offering no evidence, fixing dates), a CPS which is understaffed and under resourced, the same for defence solicitors, generating delays, delays and more delays. The criminal justice system is less like a well oiled wheel, and more like a wooden one. Cut after cut in public funding has come at a cost. The move to digital working, video links, telephone hearings, is very welcome and will make inroads into our often spectacularly inefficient use of time when not in trials, but it cannot replace the need for investment. And where is the feminist perspective? Has it occurred to the MOJ to think about how we might use these welcome modernisations to better entrench our commitment to retaining female talent post childbirth and developing it? Or to really reflect on how the erosion of the system as a whole, due to endemic underfunding, comes at a gendered cost to our most junior members? No, is the short answer.

LIGHT AT THE END OF THE TUNNEL

We can but hope that the enlightened thinking coming from the Opposition, most recently the Bach Report on transforming legal aid provision – Bach Commission, Final Report see www.fabians.org.uk and the Lammy Review on race within the criminal justice system Lammy Review, Final Report www.gov.uk/government/publications/lammy-review-final-report, will shortly extend to incorporate gender, and a wholesale review of the position of women within the criminal justice system. From defendants to the judiciary, gender influences outcomes because feminism is not yet embedded in the policy that dictates how our courts our run. This critique is not a novel one. In a sequence of ground breaking reports, between 2004 and 2007, the Fawcett Society’s Commission on Women in the Criminal Justice System, chaired by Vera Baird QC, came to the same conclusion and much progress was made. https://www.fawcettsociety.org.uk/2004-women-and-the-crimin…

But the battle was not won, far from it. It is incumbent on all of us to take up the mantel.

The true efficiency saving in the criminal courts would be to increase not decrease the numbers of working mothers within the judiciary, at the bar and at partnership level in our sister profession. If there is one thing a working mother excels at, it is efficient use of time. I should know, I am one. Lose these women and in the long run, the loser is the Criminal Justice System itself. That so many of us now thrive, not just survive, is not an argument against reform. To paraphrase Lady Hale, and unlike the MOJ, we refuse to close the gate behind us. The greater we are in number, the easier the road ahead.*

*I have referred throughout to childbirth for brevity, but the points made extend to and should be understood to include adoption, miscarriage, still birth, fertility treatment and all caring responsibilities (not just of the very young and whether in gay, heterosexual or single parent families) all of which, statistically, continue to impact women’s careers in a different way to that of men. Statistics aside, many of the points made regarding the impact of motherhood on career progression extend to modern fatherhood. Working conditions that benefit women, benefit everyone.

Lucie Wibberley
Barrister

https://womeninjustice.wordpress.com/