A rookie criminal barrister contemplates an uncertain future...
The news that criminal barristers are googling jurors – and then tailoring their speeches to appeal to their professional backgrounds and interests – doesn't reflect well on the Bar. Not just because it's unethical, but because it's a simplistic strategy unsupported by any evidence to suggest that it works, writes junior criminal barrister The Law Horse.
It is easy to scoff at barristers in our itchy wigs and fraying gowns. Horse hair curled into tight ringlets, cotton panels half ripped off our backs in a faux-distressed touch of distinction. It would hardly seem more ludicrous, writes junior barrister The Law Horse, for counsel to arrive at court in a red robe, sporting a full white beard and Santa’s hat.
So, the barrister’s costume can look a little outdated. But to dismiss it simply as a throwback to a bygone era of Rumpole and Kavanagh is to overlook its continuing relevance to criminal barristers. Donning a wig and gown for court, it’s not all fancy dress. It is partly fancy dress. But not all...
Imagine a world where everything you say and write is stored indefinitely and attributable to you. No escape from youthful indiscretion, no respite from the past. Every tweet, every blog, every angry comment at the bottom of a Daily Mail article. Traceable back to you, writes anonymous barrister TheLawHorse.
This is the world in which Deputy Chief Constable Gordon Scobbie would have us live. Anonymity is not a necessity of democratic discourse, he suggests, but a menace and a hindrance to the effective policing of the internet. None of this would matter if Scobbie, tweeting under the handle @DCCTayside, wasn’t the "UK police lead for Social Media".
Fortunately for us, Scobbie’s words have been recorded. This is what he said:
"I can understand why this is necessary in countries where freedom of speech is restricted but in the UK I think if you’ve got something to say – as long as it’s respectful – there is no need to be anonymous."
It doesn’t take an Orwellian imagination to conjure, from these words, a dystopian vision of state-stifled dissent. Apparently Scobbie doesn’t have much of an imagination at all, deciding instead to believe that anonymous speech in all its forms is redundant in a democratic society. In the context of the government’s planned snoopers’ charter this is especially troubling. After all, it is the citizen’s right of open expression – whether unguarded or anonymous – that stands as the vanguard against the creeping advancement of the type of police state in which anonymous dissent would so manifestly be beneficial.
As the Quality Assurance Scheme For Advocates (QASA) consultation rumbles on, the latest concern is that the new regime could see clients wrongly advised to plead guilty – a result of the new rules allowing inexperienced advocates to appear at preliminary hearings in the Crown Court.
To an extent, this already happens. A junior advocate once boasted to me of specialising in "cracking trials" by convincing their client to accept a guilty plea. I hope reading that makes you wince; I found it rather disturbing. QASA will surely make the situation worse.
At its heart, though, QASA – which will come into force in January next year – is about the judicial assessment of advocates. This new approach is surely no bad thing for competent up-and-coming barristers and solicitor-advocates, in spite of Lord Justice Moses' expression of fear earlier this year that judicial assessment will make junior lawyers reluctant to "tell the judge to go to the devil"...
The Quality Assurance Scheme for Advocates (QASA) doesn’t impress The Law Horse. So he is proposing four alternative ways to keep barristers and solicitor-advocates in check.
Who better to assess an advocate’s skills than their client? Not a real client, obviously, they can’t be trusted. Most of them are even criminals. No, what is needed is a stooge, an actor: a mystery client.
For all intents and purposes, the actor is a genuine client. In liaison with a police handler they are arrested for a pre-agreed offence. From that point on, the system takes charge and the lawyers are called. The client – who is the one person who holds all of the facts – is perfectly positioned to assess the advocate’s skill: the conference abilities and advice giving, the bail applications and decision making, the client care, trial advocacy, management of expectations and plea in mitigation.
Only, pity the poor mystery client whose police handler loses their file...
The Quality Assurance Scheme for Advocates (QASA) is ostensibly designed to ensure that criminal advocates perform to a competent standard in court; in practice, it will add little but another layer of bureaucracy to a justice system already groaning under the paper weight of a rainforest, writes The Law Horse
But the backroom machinations are for the time being over and QASA will soon be upon us all. This week, the SRA invited all those professionals that it regulates to register for the scheme.
QASA is a political conceit. The Bar Standards Board – having gazed at the stars and identified the culprit of declining advocacy standards – is content with a scheme it believes will turn the tables on solicitor-advocates. The Law Society is satisfied, having secured a major concession in the special status granted to the oxymoronic plea-only advocates. The Criminal Bar Association is still spoiling for a fight but ultimately is unlikely to land the first blow.