Not Preaching, but

It seems that the new-year cheer and hope for the future was exhausted in the corridors of power in record time this year (but a Happy New Year to you, both.) 

Not yet 24 days into a new year and the Government in the form of Chris Grayling (Justice Secretary, Lord Chancellor and Conservative MP for Epsom and Ewell) felt it necessary to decry the daily fees paid to leading criminal defence silks, as being anywhere between £1300 and £2000. The standard rationale was trotted out, namely why should the public purse pick up the tab for defending criminals?

This short-sighted statement of course pre-supposes a number of things:

1) That everyone is guilty, and that the whole trial process is some charade concocted by lawyers; 

2) If everyone is guilty then they don't need access to expensive, excellent quality advocates, because it's sufficient to just make it look like a fair trial is being conducted;

3) If it can be done cheaper, then that is necessarily better.

Dealing with those points in turn:

1) Mr Grayling would do well to have these five cornerstones of the legal system in this country in mind the next time he formulates policy: In this country you are innocent until proven guilty. You have a right to a fair trial. You are entitled to a legal representative for which the state will foot the bill if it is accusing you of committing a crime. The defendant bears no evidential burden and may remain silent throughout if he wishes. The prosecution must prove the case so that a jury are sure of his guilt.

The difficulty with his proposition is the same tired explanation I give whenever anyone asks me, "How can you defend someone when you know they're guilty?"

To which the short answer is, "You can't", before moving off to find less boring company. If someone tells me they've done it, then it's a guilty plea or walk away. IF they tell me they haven't done it, no matter how overwhelming the evidence, then it's the defendant's decision and there will be consequences in terms of sentence should he be convicted. I am only permitted by the Bar Council to advise someone of the strength of the evidence, and that they will receive credit for a guilty plea.

The other difficulty is that the statement pre-supposes that everyone that has a trial is convicted at the end of it anyway, and therefore has been "a criminal" all along-so the money has been wasted. But of course people are often acquitted after trial.

If they are acquitted does that mean it has been well spent? Does that then justify employing a silk on £2000 per day or not? How do you decide which cases will and will not get silks? Is it necessary to review the case beforehand and pre-judge the fees allowed?

My short experience (7 years in April coming) has permitted me to see cases from both sides: where I thought we were dead and buried, and the defendant acquitted, and cases where someone was convicted on very little evidence at all.  

2) Market forces are what they are. Generally if you want excellence you have to pay more for it. I'd be fairly happy to have a junior doctor stitch my arm up in A and E should I suffer a mishap (as long it was not one of my pals). I'd be less content with him performing open heart surgery on an elderly relative, due to a lack of experience and expertise. 

I don't see Jeremy Hunt MP saying that Senior Heart Surgeons are overpaid however-I wonder if Mr Grayling would like to go toe to toe on this point?

3) One of the best parts about his pronouncement was that some of the cases being undertaken by silks could be undertaken by junior barristers (in this context anyone who is NOT a silk), who might be about to take silk in a couple of months. They already have the skills but don't command the same rates. This really is excellent stuff, as many of my colleagues are looking forward to the Ministry producing the list of "People Who Will Be Silks In A Couple Of Months" list to see if their names are on it.

One wonders what we were expecting really. Mr Grayling is not a qualified Solicitor or Barrister. He has no law degree, but a background in television.

Aha, some might say! Well Mr Hunt MP isn't a doctor, and he is the Health Minister. Quite right-but note Mr Grayling is also Lord Chancellor. And the first non-lawyer in the role since 1588.