Legal Hackette lunches with Francis FitzGibbon QC

attachmentOver a pub lunch, the man who next year will lead whatever criminal bar is extant, discusses why advocates should train as solicitors, the legal aid gravy-train and the curse of twitter

Francis FitzGibbon QC caused a stir this month, becoming vice chair elect of the Criminal Bar Association. The result was announced at the same time as the outcome of the CBA’s ballot in favour of joining the solicitors’ protest over legal aid fee cuts.

FitzGibbon had stood on a ‘no to strike’ ticket, beating Garden Court North’s man, Mark George QC, whose pro-strike stance seemed to resonate more with the rank and file membership, if not with the CBA generals.

Escaping the teeming rain, I meet him at his hostelry of choice, the Duke of York, on Roger Street, just round the corner from his Doughty Street chambers. The 1930s establishment boasts numerous art deco mirrors, shell-shaped up-lighting, abundant yukka plants and hearty pub grub.

Under a cycling jacked, the diminutive figure with closely-cropped salt and pepper hair is casually dressed in tight khaki trousers and a light cotton pink and white striped shirt.

After a ‘fairly intense’ few months, during which he has done four murders and a rape, juggled with CBA activity, he is winding down before heading of on hols.

We head for a booth at the back of the pub away from the melee and ordering a cool lime juice and soda, he tells me he has spent the morning being briefed on a new knowledge database programme.

‘I’m trying to go paperless,’ he says. ‘I do that a lot more now. It took a bit of getting used to. Like many barristers of my generation, I’m a bit of a caveman when it comes to the more sophisticated online stuff, but I find it incredible helpful to have everything on my laptop so I don’t have to shuffle round endless files.’

An avid cyclist, who pedals his way to court whenever he can, he is keen to reduce the amount of clobber he has to cart around and tries to have only file containing all core material.

Without messing around with starters, he goes straight in for the main course – cheeseburger and chips.

Fifty-four-year old FitzGibbon, studied classics at Magdalen College, Oxford before falling into law.

He recalls: ‘Coming to the end of university I didn’t have much clue what I was going to do. My father had died that year and I was feeling at a lose end generally. A very close friend suggested we study law.

‘I thought that would be a great thing to do. It was 1983/4 — you got a government grant and didn’t have to pay any fees. It was a way, I suppose, of putting off the inevitable day of having to find a job.’

They signed up to the Polytechnic of Central London (now the University of Westminster). His friend lasted a month before ditching the course, but FitzGibbon stuck with it.

Called to the bar by Middle Temple in 1986, he accuses the Inn of ‘coming close to destroying my liver’.

‘You had to do, not only do 24 dinners, but eat them in blocks each term. If you missed one, you had to start at the beginning again. Somehow I managed to not eat my dinners in the right slot so I had to start again. I think I had about a hundred dinners before I became a barrister.’

His family has no legal background. He quips: ‘The only lawyers that my parents ever came across were divorce lawyers – they both got divorced, from each other and from other people. So lawyers had a poor reputation in our house.’

A friend of a friend introduced him to the now retired Law Lord, Leonard Hoffman QC, who offered him a pupillage, which he accepted without knowing much about the work his chambers did.

‘It was so boring – they all did commercial leases and technical things. From day one, the work might as well have been in Chinese,’ he remembers with horror.

He got the criminal bug while squatting at Cloisters and more than 25 years later he doesn’t regret the choice.

Though, he adds, he would not recommend students follow in his footsteps. ‘The job is wonderful, but if you’re starting out now, there are too many obstacles.’

His advice to young people considering the criminal bar is ‘think very hard before committing to it’.

‘I tell them the truth about how hard it is to get started and suggest that if they really want to do it, the better start would be to get a training contract with a solicitor’s firm. Then decide if they want to do advocacy and if they can develop into that.

‘I’m sure that it would have made me a better advocate if I had done some training with a solicitor. It would have given me a greater understanding of the system,’ he muses.

Though he reckons it would be beneficial for solicitors and barristers to undergo a common training, in criminal law, he favours separate litigators and advocates, citing ‘good practical and ethical reasons’ for maintaining the split.

‘I can’t predict what shape the professions will take in the future, but I should imagine they’ll be a degree of fusion of barristers and solicitors. Whether that will just be at the training stage or throughout is hard to tell,’ he says.

Adding: ‘For the public interest, the key thing is to have specialist and properly motivated litigators and specialist and properly motivated advocates.’

There is, he accepts, no rolling back the trend for some barristers to move in-house. ‘That ship has sailed.’ But he suggests the extent to which it continues depends on the economic viability for solicitors to employ them.

‘Employees are very expensive and you’ve got to be able to forecast your turnover and profit to work out how many people you can afford to keep on’, he says.

He contrasts that with the ‘beauty of the freelance bar model, which doesn’t cost the solicitor a penny.’

With wry understatement, he observes: ‘These are interesting times. In the next couple of years there are going to be massive changes to the way criminal law is done.

‘Funding will be very different, as will the professional arrangements that will flow from whatever funding model they finally settle on.’

His plan for a quiet lunch is shattered as a boisterous party of eight select the next-door table. He is softly spoken and to catch his words above the din, I almost hover over his lunch.

Looking at the bigger picture, he says, falling crime rates mean there is less work to go round.

‘With the best will in the world there won’t be enough work to sustain the numbers of criminal lawyers that we have at the moment.’

Those who will lose out, he laments, will be barristers at the start of their careers, doing the smaller work.

‘As solicitors, either by choice or compulsion, do more advocacy, that will come away from the bar. While the more complicated, smelly stuff that they don’t want to do, they will farm out to the senior people,’ he predicts.

The position of silks, he says, is uncertain but overall the profession will shrink and recruitment of new good people will be a ‘huge problem’.

His mobile rings and he excuses himself to take the call. It is the man from Auntie — Clive Coleman seeking clarification about the bar’s strike action.

Returning, he paints a picture of the stasis that criminal lawyers have been in due to continuous consultations, policy and funding changes and uncertainty over the future.

‘For years now there has been a permanent planning blight over the whole profession. People have been very reluctant to invest money because they don’t know what the outcome is going to be because.’

He looks forward to the time that changes will develop into something permanent that the profession can ‘set its compass by’.

To a degree, he accepts the unpredictable. Life at the criminal bar, he explains, has ‘always been a totally insecure profession, like any kind of freelancing. Anyone coming in who thinks that they’ve got a permanent job and income is deluded — it’s just not like that and never has been.

‘I’ve tried to tell myself over the years that insecurity is my friend, because life in general is insecure and, if you start getting used to things and think you are entitled to them, when you don’t have them anymore you get into a bit of a pickle.’

He recalls: ‘During the golden years of legal aid there was masses of work. It was quite well paid — in some case it was probably excessively well paid. Some people thought it was going to go on forever. But I’m sorry, things don’t go on forever.’

FitzGibbon is naturally guarded over what he says about the current uncertain state of affairs, in advance of the CBA executive’s meeting.

He likens the MoJ’s desire to hasten the consolidation of the criminal defence market to ‘doing an experiment on live animals to see if they can force the pace of change’.

I ask who he thinks if winning the fight so far. He answers in a flash: ‘The government. They control the money.’

But, he is not at home to ‘the language of antagonism’. ‘Talk of winning and losing and battles, is unhelpful. What we should all be trying to achieve is a high quality standard of criminal justice for everybody,’ he insists.

On the twitter storm that followed the confusion over whether or not the CBA was due to attend a meeting between solicitor bodies and the Justice Secretary, Michael Gove, he is reluctant to regard it as a reliable bell-wether

‘Twitter is endlessly fascinating, but I don’t think you should take anything on it as representative of people’s feeling s in general,’ he asserts.

The explanation, as far as he is aware, is that of the ‘confusion and misunderstanding’ put forward in the joint statement by the solicitor groups and the CBA — the meeting was set up by the solicitor groups and, and although the CBA was invited to attend as an observer, that request was not followed up.

There are, he assures, ‘no hard feelings about this on the part of the people who are actually concerned’.

Rather he insists: ‘It’s all been magnified on twitter for reasons that I don’t begin to understand. Nobody on our side was remotely miffed about not being there. It wasn’t our show.’

He is reluctant to predict the outcome. ‘At this stage all I can tell you is that CBA executive committee will make an executive decision one way or the other to continue to support the action or to put the matter to another vote of the membership. What the actual decision will be I have no idea at all.’

He stood for election on the message that tactically now was not the right time to strike because of discussions in progress with the MoJ. ‘I couldn’t see how a strike now would advance the cause,’ he explains. But he understands why solicitors acted.

‘They’d been led to expect that the second 8.75% cut would be introduced in January [2016] with the new contracts, and they were then told at short notice that they would be coming in at the beginning of July. They faced a dilemma about how to deal with it and they decided they should strike.’

Whether their meeting with Gove delivers the concessions they want, he says, remains to be seen. ‘We don’t know about that because the statement issued afterwards was properly non-committal.’ That statement described the meeting somewhat opaquely as ‘potentially useful’.

His intel on the meeting is that Gove invited them to suggest alternative savings.

But he is doubtful whether doing so will result in a reversal of the cuts. ‘Unfortunately the MoJ has a history of doing that and then just pockets the savings and carries on cutting,’ he observes.

His view on Gove?

‘I’m regularly accused on twitter of being a fan of Gove, which I’m not. I’m entirely ambivalent to him, but it seems to me that the announcements he’s made early in his job, in not building a new children’s prison and ending the prisoner book ban, are pretty fundamental shifts in policy. Whether you like him or not, I think he and his department deserve some credit for that.’

He is doubtful whether the Secretary of State’s openness to reversing policy extends to increasing legal aid spend. ‘They [the MoJ] are not masters of their fate — they are led by the Treasury,’ he explains.

But, he notes: ‘Gove has said all this stuff about having a two-tier criminal justice system in which poor people get a bad service, and said that he wants that to change. He needs to be helped and shown how to do it.’

His continues: ‘The fact that he’s had discussions with groups may suggest that he’s in earnest. I’m not a cynical person and I’m not inclined to write people off immediately before I’ve seen what they’re like.

‘I’m not enough of a politician to know if he would feel sufficiently threatened by the solicitors’ and barristers’ action for it to make any difference, but I rather doubt it, because ultimately he holds the cards.’

His advice to Gove is: ‘Keep listening to the judiciary and to the leaders of the professions, who understand how the system works from the inside. Decide if you want quality and, if so, whether you’re going to pay for it.’

And crucially, he recommends penal reform to cut the number of people going to prison.

FitzGibbon however, does not altogether buy the line that no more money can be found. Rather he suggests: ‘More money can always be found. It’s a question of where it comes from.

‘If we’re going to persuade the MoJ to divert money into paying lawyers, you’ve got to show, first that it’s value for money and, second where they can get the money from.’

He observes that the Treasury found a ‘significant amount of money’ to prosecute big financial crime. ‘That tells me a case can be made for money to be put into the system, but it’s got to be a very powerful case and one that carries weight politically.’

Criminal lawyers, he notes, while good at putting other peoples’ cases, have been bad at putting their own and have struggled to shake of the ‘fat cat’ image pedalled by the government in the past.

‘It’s difficult for lawyers to say “I’m a lawyer, pay me more money.” It’s not a very attractive message,’ he accepts.

On the solicitors’ decision to go back to work in the police station and magistrates’ court, FitzGibbon understands why many felt they could not continue with the action.

‘They need to keep the money coming in — they have businesses to run and commercial obligations — rent and wages to pay.

‘There is a time limit on how long they can stop earning money. The question was always when the action would hit the buffers. I don’t think anyone should be surprised that the action didn’t last indefinitely; it was never going to.’

Next autumn when he takes up the reigns as CBA chair, who knows what the landscape will be. With his tongue firmly in his cheek, he promises utopia.

On that note, his ‘phone rings again and it’s another call he must take.

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