2011 Annual Dinner

PUTTING DOWN A MARKER

BY LORD JUSTICE MOSES

For 41 years, and on and off ever since, I have sat here and listened to some remote figure lapse into anecdotage, expressing a certain irrepressible regret that nothing would ever quite live up to a glass of lees-clouded, cork-covered, British rail claret in the buffet car coming back from Canterbury East, exhibiting the symptoms of that most British of diseases, a genuine nostalgia for a fake past. But there was one feature of that past that was not fake: our independence. Our clients were on trial; we were not. We were free. Free to make fools of ourselves. Free to persuade. Answerable to our clients, to the law, but free.

If you want to test the quality of a civilised legal system; sorry, that should be to assess the competency of a civilised legal system, if you want a level 4 democracy with a range of competencies to an excellent standard, I’ll give you the sure-fire kite-mark. It is the independence of the bar. The weapon of choice to destroy that independence is the bludgeon of bureaucracy, the dead, the so very dead hands of quality assurance, of grading, of procurement, of accreditation, of re-accreditation, a system which asserts that effective advocacy is fundamental to the justice system whilst measuring the effectiveness of advocacy by its cost. A system not of quality control but of control.

Let me be fair. There are in the regulatory objectives some faint references to independence. It’s point 6 out of 8, but I counted not one such reference in the selection criteria for the CPS advocate scheme, not one reference in the Principles Underpinning a restructuring of the delivery of criminal defence services. Small wonder; control assessment and you control the assessed.

And it is in the attempt of the executive to control with a barely comprehensible thicket of rules and regulations that they reveal their oh so ignorant belief that the questions they pose and the rules they impose will distinguish between the incompetent and the competent, the skilled and the inept, the true advocate and the muttering foozler. 

I do not know who those bureaucrats are but of one thing you can be sure. They have never addressed a jury. They have never prosecuted one morning and defended in the afternoon. They have never struggled with the obdurate client, described in the pre-sentence report as lacking learning-skills, and struggled with an even more obdurate judge who certainly lacks learning skills; a judge who gives every sign of having given your opponent an over-effusive report in support of his ambition to prosecute at level 3 where, unlike level 4, you do not apparently need a superior grasp of trial advocacy skills, which is lucky because your opponent doesn’t seem to have them. Whilst as for you, the judge doesn’t seem, judging by the rolling of his eyes, very likely to have supported you even to level 2 in the application you sent to his room that very morning. Level 2, you will recall, requires appropriate use of language. In describing those responsible I am afraid I cannot even attain Level 2.

You and I know that when government reaches for an acronym something has gone seriously wrong. It’s PAC: Performance of Advocacy Council. It’s JAG: Joint Advocacy Group. And of course OFUC: one fee one case; sorry OCOF, one case one fee… That proposal blatant in its pursuit of what the then Lord Chancellor called a much more consolidated market in which larger contracts are let to a smaller number of providers. Or one case and one fee: the most to the cheapest. And don’t worry. Soon they will achieve their ultimate ambition, like Sir Humphrey who wanted to ensure that the newly built hospital had no patients, soon the courts will have no barristers. They will be too busy filling out their forms and taking their Recorder exams. Come on, 1,000 this year - shall we say 2,000 the next?

And how will they mark your re-accreditation competencies? Three marks when prosecuting counsel tells the judge, “Oh, your Lordship puts it so much better”? One and a half marks when the defence laughs at the judicial joke? Ten marks for the oleaginous creep? What competency score will they give Marshall Hall, when he defended Madame Fahmy for shooting her husband at the Savoy? When he pointed her pistol at the jury and then let it clatter to the floor of the Old Bailey as it had clattered to the floor of the corridor of the Savoy. What competency was that? Was he acting appropriately to assist the court in the administration of justice as required? Must the art of advocacy, which we celebrate tonight, really be diminished to a performance skill, assessed like the quality control of a supermarket, the Bar measured by bar code?

I’m not at all sure we should blame the red-tape functionary, who will never have so much as untied a pink or white tape. We are reminded, in defensive tones, of consultation with what is described as the senior judiciary. I’m never quite sure who they are. Are they the top judges, the exotic nature of whose sexual practices are from time to time described in the tabloids? Except you must not call them sexual practices. Now that the Bar Standards Board has upped your CPD hours to 24, they are to be known as non-verifiable activities.

The abiding characteristic of a top judge is his ability to forget. To forget the late set of papers and the even later train, the non-existent instructions, save to use your best endeavours, and the judge who has never had to face the despotic contract manager, who is not available to give you permission to read anything at all over the weekends, who believes that unused material should be what it says - unused - and that there is therefore no reason why you should be paid to do so, and who believes that a forensic triumph is one where the cost is cut in half.

Yet it is to the judges they look for references, for accreditation and re-accreditation and, it seems to me, they should respond and give top marks for independence of thought and courage of opinion.

But there remains the problem of assessing the assessor. What about the judges, whose involvement in the QAA quality assurance arrangements scheme, now QASA, is said to be critical? Let’s set them a few competencies. Just think of the delight of returning home after a sweaty day at Canterbury or Snaresbrook. Analytical ability? How shall we score that? Interpersonal skills? Oh dear. What about a procure co to bid for and enter into contracts with the Court Service and other large purchasers of legal services to outsource a judgment or two? Forgive the language but it comes from those who wish to mark you for written expression; if there is nothing wrong about a traffic light system for the Bar there is certainly nothing wrong with a traffic light system for the bench.

Let us tonight celebrate those qualities for which there is no measurable competency: curiosity, daring, zest and sheer enjoyment. And courage in the face of all attempts to take away your spirit in a pile of bumf.

We, the judges and your guests tonight, should understand that we can, and should never, never, forgive ourselves if we did not protect your independence and respect it and cheer you on because you are, and should remain, free and independent and we should cheer those shining representatives of the independent Bar… the South Eastern Circuit.

 

Lord Justice Moses was guest of honour at the SEC Annual Dinner