“A proper system of criminal justice requires prosecutions to be put strongly, but fairly, and defences to be conducted efficiently and fearlessly. For this, it is critical that an experienced, professional and independent Criminal Bar, capable of undertaking the most demanding work, is maintained,” said Lord Irvine of Lairg at the 1996 Bar Conference.
Whether or not the current administration has been committed to a proper system of criminal justice, it has shown no interest in maintaining an experienced, professional and independent Criminal Bar. Nor has it acknowledged any link, critical or otherwise, between the former and the latter. On the contrary, never before has the Criminal Bar had to struggle for survival on so many fronts.
The lifeblood of the Criminal Bar and the administration of justice is a proper system of legal aid. In a recent interview, no doubt with unintended irony, Lord Nolan is quoted as saying: “I have no regrets about my time at the Tax Bar. I always thought that crime was the most important branch of the law.”
We at the Criminal Bar must and do accept that practice in “the most important branch of the law” is never going to be a passport to riches, because, by its nature, the remuneration of the criminal practitioner will always be dependent on scarce public resources.
But there can be no doubt that the Government's proposals for legal aid constitute a threat to standards at the Criminal Bar. The system of block contracts, with solicitors controlling all the legal aid funds, means the cheaper the counsel they employ, the more money they take home.
The Government appears oblivious to the obvious dangers this system will create for safe convictions, and for the maintenance of quality and experience at the Criminal Bar – as Lord Irvine has pointed out, the two go hand in hand. Furthermore, it refuses to countenance a separate advocacy budget.
Lord Irvine has said these proposals constitute his “principal concern” for the Criminal Bar. He has recognised that it must be arguable that advocacy costs should come from a separate budget which could be controlled through graduated fees.
The latest act of this administration – its freeze on legal aid and graduated fee rates – exemplifies its approach of subjugating the long-term interests of the criminal justice system to short-term political and economic interests.
One of the recommendations of the Royal Commission on Criminal Justice – that the relatively poor remuneration of the Criminal Bar should be addressed as a matter of urgency – was dismissed out of hand. This hardly supports the Government's line that the current level of fees is adequate to attract lawyers of sufficient quality to this side of the profession so that standards can be maintained.
A responsible government should not forget the cost to society, both financial and emotional, of miscarriages of justice.
Hopefully, following the General Election, the macho posturing over law and order will end. As the Lord Chief Justice pointed out recently, the criminal justice system is too important to be used as a political football.
It is absurd for anybody who questions the new minimum sentencing proposals to be accused of being on the side of burglars and drug dealers. This impoverished level of debate, connived with by the Opposition through its terror of being perceived as soft on crime, brings bad laws in its wake, which we at bench and Bar have to administer.
Pandering to public opinion has led to a wild swing in penal policy over the space of a few years, from one designed to empty our prisons to one which will fill them to bursting point.
Important changes to criminal law have been rushed through, with the profession being showered with so many new Criminal Justice Acts, it has been almost impossible for barristers to keep up. It can only be hoped the removal of electoral pressures will signal a return to more consistent and considered legislation.