Challenging Children

The stories continue. Barristers accused of hectoring children, prolonging their agony in a wholly indefensible way. And all this despite great improvements in practice, technique and understanding.

I wonder whether we can change the system even more radically.

Why does the child even have to come to court?

For these purposes, I mean anybody under the age of 14.

What if a nice friendly vehicle stopped outside the child’s house with a satellite link and plenty of cuddly toys. The sort of vehicle that travels to outside broadcasts every Saturday throughout the land. Inside, well converted, it is every bit as comfortable as the rape suites we have become accustomed to seeing on the DVD.

And if that sounds off the wall, why not bring the link inside into the room in which the child is most comfortable. A small portable camera and microphone, manned from the van.

Yes of course the parents cannot be sitting beside the child, but a very friendly mobile witness support lady will be.

Of course all that takes money. But it might be worth a pilot study to see whether we can end the unnecessary ordeal of making young children travel miles from their homes to a strange room in a strange court. Mobile justice – maybe your time has come.

Fortunately recent authority has made it much easier for defence counsel to fulfil their duty
by not requiring every detail to be put to the child. But we still have some way to go to raise our standards to the only level that matters: that the experience of children reliving their agony should not enhance it. If any counsel in any sex case over which I am presiding raised their voice once to a child, I would send the jury out and deliver them a bollocking that they would never forget.

But here is the good news. Up and down the land, young and more experienced counsel increasingly are performing this very difficult job with great skill and sympathy. I can speak directly of cases which I have tried recently where the standards have been quite superb. It is an imperfect system and I would like to see big changes to improve it, but let no one criticise barristers unfairly as they seek to square the circle in the best interests of their client and the children they have the duty to question.

For here is the bottom line. Most children are telling the truth when they allege sexual abuse.
Yes they are and we know it. But we have to have a system which Is sufficiently robust and fair to deal with those who are not.

The Tempest (version 2)

An old philosopher looks down upon the ways of warring lawyers and ponders whether or not to break his staff…

PROSPERO

Methinks I am amazed
That legal folk should find dissenting paths
And in their tumult, lose the name of reason.
Disharmony will bring no easy fruits
To better ease your jaded hopes and fears.
Remove the anger which afflicts your hearts
Lest idle threats do so pollute the tree
Of justice as must cause it harm
And in that act bring lawless tyranny…..

Or put another way, stop pretending that we can oppose QASA without an alternative in our back pocket….

One strike and you’re out

Are barristers really going on strike? asked my journalist friend.

It depends on what you mean by strike.

Well, withdraw their labour mid-case, that sort of thing.

No. At least I have not heard anyone so far threaten that.

Why not?

Because we owe a duty of care to those we represent. You wouldn’t hear a surgeon speak of not turning up to do his list. Or a fireman ignore a fire in front of him.

What would you do if anyone suggested doing that?

I would confront them head on and tell them not to be so bloody stupid. And that they were letting the profession down, not to say their clients and everyone else affected by an adjourned trial. And I might also point out that there is no pot of gold to pay an infinite number of wasted costs orders.

You sound pretty angry.

On that issue I would be. I shall attack openly anyone who advocates that. Radio, television, you name it. No, that’s not the plan. The more nuanced approach is to seek adjournments or simply
not to be available for work.

And what do you think about that?

Well they are not the same thing. Seeking adjournments is simply denying access to justice for other people. Including your client. Of course it is for principled reasons.

Which are?

The future of our profession. It shows the depth of feeling and a huge fear of damaging change. It is noble and honourable.

Well one thing’s for sure. If barristers don’t turn up, our headlines aren’t going to be pretty.

Of course! Thats the point I am banging on about. We cannot fail to lose any support that a really good campaign may achieve. Particularly if you write up the real position fairly.

Ok, take the point. I’ll do my best. But lastly, what about just not being available?

That is more difficult. It will mean returning briefs and letting clients down that you have seen in conference. And the young will suffer particularly.

So what is the way out?

Talk. Canvas, recruit, explain. But if the chips are down, remember who comes first in life.

You mean your profession?

No, much as I love it. I mean my family. And ultimately, that will be the bottom line…

Unprecedented threat to Solicitors

Readers will know now where I am coming from: reasoned debate in the firm hope belief that over the top militancy will be counter-productive, especially with QASA. However one very important development has been the nationwide successful attempts to seek common cause with solicitors in the light of the unprecedented threat to their very existence. It is very heartening and of course I support it.

The question is how it may be channelled effectively.

One step is to try to predict what would be the position if ALL the reforms go through and another to anticipate a modified change in which some competition is introduced, but falling short of Tescos Law. It makes sense to consider both.

The extreme reduction unquestionably will disfigure the legal landscape and the loss of choice ultimately increases the possibility of injustice. I have not yet seen the projected loss of employment, but it must be catastrophic. Gone will be generations of high street experience and the sense of identification of long established clients with solicitors that they have always trusted. That is a major political and social question.

Now, set against that the political decision to achieve the projected cuts in the present dire economic climate. Is there a way to square the circle?

There is, but it will require a sea change in our collective organisations.

Assume for the purposes of argument that the joint representations have some limited effect.
I mean by that that new entities will enter the market place, which for convenience sake we will continue to call Tescos law. Assume also that there remain a diminished number of high street practitioners who have been partners in the fight, making working partnerships in the common cause, which a short time ago had not even been discussed

Is there a working model of future unity, short of fusion, capable of practical cooperation?

I firmly believe that would be entirely possible.

So if that vision is correct, looking ahead two or three years could see more than one competitive legal entity. First, Chambers with solicitor members in house. Second, as now, Solicitors firms with barristers in house. Third, working local arrangements which could promote an easy transfer of skills and facilities. Fourth, Tescos Law out there making their own local arrangements with the above three.

This is where we need to get back to hard politics.

This fight so far has been largely internal. Now at last we are putting our public relations on a far higher level. I have argued that for sometime, because you cannot expect a Minister obliged to cut to carry out a volte face without huge public pressure of the kind that arises when eg a specific Health facility is under threat.

That is a long way of saying that we need the public on side.

In passing, I am absolutely sure that reason must be our chosen weapon because that is what we live by and that is the only way we can win. So I absolutely reject any militancy which will destroy our case and I shall continue to argue that position.

But yes to a common cause. The next step may be common representations. Why not?

Letter to The Lord Chancellor

Dear Lord Chancellor,

At the recent meeting with the Circuit Leaders, you made it crystal clear that you want to maintain an independent Bar. That is one reason why you are not introducing competitive tendering for the Crown Court.

Part of the Criminal bar has reacted with some suspicion to what looks like, in fairness to you, a pretty clear and unequivocal statement. They believe that it is a delayed execution, so that inevitably competitive tendering will come to the Crown Court after its introduction in the Magistrates Court.

I prefer to treat you as a man of honour who has given his word. I have no personal reason to think otherwise.

So I shall tell all young would-be criminal lawyers that the Lord Chancellor has made it quite clear that he wants you to make that choice. There will be a future for them and so far as you are concerned, our precious independence is guaranteed. I shall tell them that by inference you must want the structure of chambers to continue and understand the need for the young to have a training ground and the pursuit of excellence.

Further you told our dedicated circuit leaders that you do not propose One Case One Fee.

It must follow that you have both understood and accepted the logic of our position, following the many representations made. I am grateful for that and I shall point out to the young and all interested members of the public that it will indeed help to maintain the independence of the bar.

Then you are reported as saying –

“I have tried to protect the Bar. I hope that the Bar will not bite my hand off”.

Again I take you at your word. It is entirely reasonable for you to speak in those terms.

Speaking for myself, I absolutely deprecate any and all personal attacks which have been made on you. Nor do I think it is fair to have castigated your appointment because you are not a lawyer. Probably you have gone out of your way to seek to absorb the ethos and intricacies of the bar and will go the extra mile to negotiate with representatives of good will who treat you with courtesy. I
I heard you defend the independence of the Judiciary on Question Time and I have no doubt that you have the integrity to defend in public the independence of the bar. Indeed you are recorded as saying –

“It is very important to maintain an independent Bar. I will continue to give that message out”.

I repeat – I believe you. I shall continue to do so, unless of course you were to go back on your word.

However I do need to pick up one comment you are reported as making, which may be seen at odds with your opening remarks.

“If the Bar does not co-operate I may introduce PCT in The Crown Court.”

Now I was not present at the meeting so I cannot know whether that was threatening in character, or something of a bargaining ploy. No matter. I am going to go with your opening remark that you are not introducing PCT in the Crown Court because you believe in an independent bar and thus have accepted the strong submissions of the Bar Council as to why it would present insuperable problems for us in the Crown Court.

Then you openly and frankly told our leaders that you need to shave £1bn off your budget and will save some of that from Legal Aid. Most of it to fall on solicitors. £44m of that will have to come off the budget for the Crown Court.

Here again I part company with some of my colleagues. In a time of economic rigour, the Law and Legal Aid in particular cannot be immune. Why should we be? The rest of the country with a few exceptions are undergoing economic hardship of a character unknown for over a generation. So we are all going to have to knuckle down and earn less. If we want a better life style, we cannot expect it from the public purse. All that notwithstanding the serious cuts to our fees for well over ten years, which I know have been brought to your attention. That does not prevent me and many others wanting very specific alterations to the mechanism of some of the proposed cuts.

Nor will I challenge your absolute right as an elected politician to make those hard choices, aware as you must be of the knock on effect on both court users and practitioners.

So what remains?

Judgment, Lord Chancellor. The knife wielded as fairly as circumstances allow.

And here I detect a crumb of comfort from another of your very clear statements to our leaders.

You have given your word to consider any alternative strategy to save the money needed. You have given your word to consider alternatives to PCT. If we come up with something you will ensure that your officials help us to cost it.

I absolutely trust that clear and straightforward commitment. You can be quite sure that insofar as we can suggest viable alternatives, we shall do so.

But you went even further.

If we come up with other ideas that save some money, you will not “bank” those savings and then make the full range of cuts proposed in the consultation paper.

Again that sounds to me to be plain and straightforward, as does your commitment that after this you do not plan to come to the Bar for further savings. We will hold you to that and I see no reason why you should break that public commitment either

You said more by way of explanation, notably that abandoning client choice was designed to help new entities (such as the Bar) enter the market place. You were keen to see Chambers bid for contracts.

I will not comment on that, save that the bar is alive to the need to adapt its working practices to create some alternative business structures. But I note that you see a continuing and enterprising role for chambers and not for a moment by implication their demise.

You will have noticed so far that I have done little more than to set out your exact commitments courteously and make it plain that I am prepared to trust you to keep them.

Some in my profession will be choking over their cornflakes at so mild and trusting a response.
Naive will be the least adjective in their vocabulary.

But I am absolutely serious. If you keep your word, unlike so many politicians who have failed us, you may not make friends but you will be respected. You may even become Prime Minister. Reputation is everything, is it not?

But here may I enter a caveat of my own.

You told the Leaders that tapering proposals are designed as an incentive to keep a trial short.

That, with respect, suggests a deliberate tardiness to make money. Frankly, with good judicial case management, it isn’t the bar who are slowing the process down. Cases are delayed for a whole variety of reasons beyond our control. Trust me. I have been doing it for 46 years and time wasters are no longer the problem.

So I am sure if you think again about that suggestion, you will appreciate how offensive many of us have found it. But I do not accuse you of setting out to offend.

Lastly for the moment, you said that proposals to pay trials and GPs at the same basic rate is designed to help junior members of Bar who do the higher proportion of the GP work.

I am going to let our leaders answer that claim, made again I have no doubt, in good faith. They have already responded in detail pointing out our deepest concerns and fears and you have undertaken to see them again.

So in summary, Lord Chancellor, I have set out your own stall in your own summarised words. I have decided to trust you as a man of honour.

No one would be more relieved than me to find that faith was well placed.

For the point of public promises is that men of honour keep them.

Thank you for taking the time to read this.

Yours sincerely

Nigel Pascoe QC