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So, the barrister’s costume can look a little outdated.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…
The criminal trial is an occasion of public participation. Lay jurors assess evidence given by lay witnesses against lay defendants, while barristers, judges and court officials regulate proceedings. Trials need order, and traditional court attire is a central facet of that control. Public perceptions of the wig in particular, described as “intimidating” and “[signifying] that justice is being done”, tend to confirm this view.
Professional clothing aids professional conduct. A distinctive uniform starkly alters the person beneath, as well as the onlooker’s perceptions of them. Police uniforms combine protection and practicality with a hulking, intimidating physique. The loose fitting coats and cloaks of doctors and priests are imbued with a timeless wisdom. A barrister’s wig and gown, despite the sullied reputation of the lawyer, still suggest high ethical standards and professionalism. The common thread of professional uniforms is authority.
Addressed by a barrister in a wig and gown, as a juror you will, on the whole, listen. Sat around a conference table being addressed by a person in a business suit, you may well feel more comfortable. You might also be distracted by the gnawing apprehension that someone is trying to sell you a timeshare.
The Old Bailey Spa and Hotel
In 2003 the then Lord Chancellor launched a consultation paper on court working dress with the stated aim of encouraging “court users” to feel “as comfortable as possible”. The term “court user” makes me slightly nauseous. Her Majesty’s Court Service, despite its name, is not a “service provider”. You do not choose to be a victim, you do not elect to be indicted or summoned, you do not select your punishment from a comprehensive range of competitively-priced package deals. Court is a formidable arena where life changing decisions are made. No one should arrive expecting a comfortable day at the spa.
I do not want a witness feeling “comfortable” when answering my questions unless I choose to put them at ease. Many of my more senior colleagues disagree, and argue that a witness can only give their best evidence when they are comfortable. Yet there are many instances where a witness’ discomfort is manifestly advantageous; to avoid complacency, for the truth to be heard. That doesn’t mean that witnesses should be bullied – that would hardly be in the interests of justice – and reasonable safeguards already exist: the court can order that barristers’ wigs and gowns are removed, to help a vulnerable witness give their evidence. Ultimately, it is not for a barrister to make the witness feel at ease. There are other organisations for that.
The mask of liberation
Away from the courtroom there is a concern, though it is a thankfully uncommon reality, of being recognised by those involved in the trial and their supporters. In reality this is far more of an issue for family practitioners than criminal barristers. But respect is in short supply for the legal profession and keeping court users at arm’s length allows barristers to work without fear of repercussion. Like Clark Kent beneath his red Lycra pants, the relative anonymity to be found underneath a wig and gown is powerful, and liberating.
On a daily basis, barristers deal with complex and emotional individuals who are going through one of the most stressful chapters of their lives. Murderers, rapists, terrorists, and all the petty thieves and thugs; friends and family consumed by bitter disputes; worst of all, the innocent. The desire for ownership of the barrister who is fighting their corner – “my brief” – is understandable. Court dress serves as an invaluable, implicit and ever-present reminder of the professional nature of the relationship.
Likewise, being cross examined by counsel in court dress reminds the witness that the barrister is merely performing a duty; that however intrusive the questioning, it is not personal. For the barrister, having a mask to hide behind can make difficult questions easier to ask. I’m not particularly relishing the prospect of, say, telling a child they’re lying about having been abused by a parent – when that brief does land in my pigeon hole, I’ll be glad of the professional anonymity.
Sometimes, the real pleasures of the wig and gown are the small pleasures. Striding through a packed crown court concourse, gown billowing open like a Hollywood Transylvanian, people stand back and give you a wide berth. Having previously worked in the criminal justice system, when walking the corridors in a business suit it was not uncommon to be stopped, mistaken for a solicitor or enlisted to answer some query or other. I was always happy to help. Pressured by time and a barrister’s responsibilities, I am not.
I won’t deny it. Part of the appeal of the wig and gown is to stroll through the corridors of the court, shoulders thrown back and head held high, thinking, Part the crowds, barrister coming through. Yep. I know. You’ll think me a horrendous person for that, I’m sure. But before you lynch me in the comments box, bear in mind that I’m still relatively young to this game. Part of my job is to discredit experts in matters about which I know very little; I’m called upon to tell police officers that they are lying, deceitful and manipulative; my client must be convinced to trust in my judgement and abilities; I have to maintain my professionalism and composure in the most hostile of adversarial arenas. I am not a natural extrovert, and this is very much a confidence game. I take my confidence wherever I can find it.
Barristers are independent. We are not the defence team and we are not the CPS, though we may act on their behalf. Even those barristers who are employed in-house still owe their first duty to the court, not to the client or the firm. If we wear the same order of clothing as the judge, usher and clerk, this only reinforces the barrister’s autonomy. We represent the client fearlessly, but we can be trusted not to go native; our objectivity is not to be impugned, our motives are not to be questioned. Lord Neuberger warned against devaluing the currency of the judiciary by courting publicity and blurring the lines with politicians or academics. I am not a politician or academic, I am not a banker or just another timeshare salesman, and I do not expect to be told to dress like one.
In other jurisdictions where court dress is indistinguishable from business dress, the jurors when interviewed have focused on the “likeability” of the legal professionals, and the advocates play on this. Some juries identify with the local and colloquially dressed, others are impressed by the big city slick. Impressions can be unintentional and stereotypical; the harried one-man-band public defender or the groomed professional prosecutor. I gave serious consideration to wearing glasses to court (my vision is fine) to disguise my youth and project the subliminal impression of being knowledgeable.
We make appearance-based judgements of each other all the time. With a common dress, the playing field is levelled. The fate of a trial should not be influenced, however remotely or subconsciously, by the stripe of a barrister’s tie. Nor should the gaudy fashion of allowing barristers to wear coloured, check shirts ever have been allowed: it is not befitting the profession to give the appearance of having glued to your chest a plastic tablecloth from the local greasy spoon.
The playing field should be level for all. In some crown courts, solicitor advocates will wear the gown but not the wig, for fear of offending the local bar and, more importantly, the judiciary. “It’s just not done,” I was told. Which is a great shame. You will all know my views on solicitor advocates by now, but they are professionals and a feature of courtroom life, and they should not feel pressured to dress as second class advocates. It does their clients a disservice not to be seen to be competing on an even footing.
The best in the world
Court attire is not all good: it is the great disassociater. It breathes oxygen into the myth that only the privileged few are entitled to practice at the Bar. But much is already being done to break down this falsehood. Do you think that discarding the old fashioned clothing will do anything to weaken the insidious grip of the Russell Group universities on the profession? Of course it won’t. I am not a public school Hooray Henry, I do not defend the wig and gown out of a misplaced sense of entitlement.
We are often told that we have the best legal system in the world. The wheels of justice can grind imperceptibly slowly, but the great lesson of politics is that short-termist “big ideas” often do very little long term good, at the same time sweeping away decades of experience of what has worked well – all in the name of progress.
Itchy and fraying as they are, I enjoy wearing my wig and gown. That might be snobbery and it may be quite absurd. But this remains a popular position, especially at the junior end of the criminal Bar and, as we know, a happy barrister is a productive barrister. This is not an easy vocation to enter, let alone succeed in. It requires a huge economic gamble and consumes much personal time. There are good reasons to retain traditional court attire, which should not be discounted for the transitory ideals of modernism.
My barrister’s wig is my pride and joy. Why else would I have dragged it through the dirt to make it look so well worn?
The Law Horse is an anonymous barrister at the criminal Bar of England and Wales. There’s more from The Law Horse here