Over ribs and white wine at Bill’s in Covent Garden (eschewing his regular haunt of Fleet Street’s El Vino in case we are ‘mobbed by the drunks’) barrister and former Tory MP Jerry Hayes, in his trademark colourful specs, explains why the criminal bar was right to accept the government’s pay offer, why disclosure problems will get worse, and why he definitely isn’t the Secret Barrister.
Criminal bar strike vote
Echoing the Brexit vote, last month more than 3,000 barristers voted in the Criminal Bar Association’s (CBA) ballot by 51.5% to 48.45% to end their protest action over legal aid fees and accept the government’s offer of extra funding and a pay rise. The outcome halted an escalation of the action that would have seen barristers implement a ‘no returns’ policy, but has left the bar deeply divided.
Hayes, called to the bar in 1977 and working from London’s Goldsmith Chambers, voted in favour of the deal and is adamant that it was the right result. ‘We got as much as we could. We weren’t going to get any more,’ he insists.
‘We’ve got to give [the Lord Chancellor] Gauke some wriggle room. He’s given us £15m of new money, which hasn’t happened before, and a 1% pay rise. So the kids will do better. It was the kids that I was particularly concerned about.’
To those barristers who argue that the bar had the ministry on the ropes and should have held out for more, he says that is ‘bad politics’ and was never going to happen.
‘Slowly, slowly, catchy monkey. The fact of the matter is we were being offered, through the very skilful negotiations of Angela Rafferty [CBA chair], something that was sellable to the members and the promise of a review in 18 months and then a look at the prosecution and disclosure. So this is only step one.”
And he adds: ‘Gauke is facing the bigger problem of having to cut £600 million from his department’s budget by 2020.’
But the closeness of the vote, he suggests, will work in the bar’s favour: ‘If it had been an overwhelming vote “yes” then the government would have said there was no problem. Now they know that if they put a step wrong, there will be serious trouble – we will have a no returns policy.’
Unlike during the bar’s protest four years ago, there was little media attention paid to the recent action – something Hayes puts down to the fact there was no actual strike or demonstration. But, he says No.10 ‘was made aware’ of the bar’s action and the consequences if it escalated to the next planned stage.
The whole problem with criminal legal aid fees, he says, has arisen because of ‘systemic problems within the MoJ going back to Jack Straw [former Labour justice secretary and lord chancellor and a former barrister], which has regarded barristers as part of the establishment and filthy rich’ — a perception fed to and gobbled up by the public, with help from sections of the press.
Much of the blame for the deteriorated situation, he says, lies with the former justice secretary and lord chancellor, Chris Grayling. ‘That terrible man Grayling tried to destroy the bar and destroy the criminal justice system and what’s more he relished doing it.
‘Barristers and solicitors have been treated absolutely appallingly – we’ve had our wages cut by 40% and we’re just treated like absolute rubbish. If consultants or GPs had been treated the way we’ve been treated there would be national strikes.’
The bar’s recent protest was triggered by cuts to the advocates graduated fee scheme. Solicitors face a similar cut to the litigators graduated fee scheme, and are going to court next month to challenge it. So, if both sides of the profession are treated badly, why don’t stand together and negotiate with the government together?
‘Because it’s two different problems,’ argues Hayes. ‘When it comes to litigation fees, how can we negotiate for them – we can support them and I think we should, but how can we negotiate, because we don’t understand it.’
And he dismisses the notion that a single profession would make things easier: ‘It’s horses for courses. You hire me because I’m an advocate. You wouldn’t hire me as a litigator – I wouldn’t have a clue about litigation and most solicitors don’t have a clue about advocacy.’
Hayes was the prosecution barrister drafted in for the trial of Liam Allan, the criminology old student who had been charged with rape and been on bail for two years. His trial was halted at the eleventh hour when the prosecution disclosed thousands of previously undisclosed text messages showing his innocence.
Hayes, told the court it was the most appalling failure of disclosure he had ever encountered, and told the media: ‘This is a criminal justice system which is not just creaking, it’s about to croak.’
Allan’s was the first in a line of cases that highlighted the widespread problems with disclosure. After the director of public prosecutions, Alison Saunders, initially denied there was a problem, she initiated a review of all sexual offence cases, which lead to almost 50 matters being dropped.
Many suggest that the matter may not have come to light had someone like Hayes not been the prosecutor in Allan’s case. ‘I’m old fashioned. If the defence want something, provided it’s not a complete fishing expedition, they can have it and we can argue it out in front of the judge about whether it’s relevant,’ he says.
‘My job as a prosecutor is to be fair, I wasn’t prepared to stand by and see some kid get 12 years and be on the sexual offenders register for the rest of his life.’
But, he notes: ‘Some people don’t do that because they are afraid they’re going to lose their briefs.’ As for recorders – part time judges who are also jobbing barristers and who should be aware of the problem, he says: ‘They’re in a very difficult position – some are desperate to get on the bench. I’m sure they would do their duty, but there would have been a temptation, which I hope they resist, to say “let’s get on with this trial, we’re wasting valuable time and resources”.’
The problem with disclosure, says Hayes, is not new – it’s been going on since the Criminal Procedure and Investigations Act 1996.
He explains that there was supposed to be an independent disclosure officer in every case, although one is only assigned in very big cases. ‘In most cases the disclosure officer is the officer in the case, so they are hardly going to be impartial.
‘And there’s a cultural and systemic problem within the police – they don’t understand their job, which should be about looking at the evidence, not building a prosecution case. It’s not for them to decide what is relevant.’
It’s also a question of resources – neither the police nor the CPS has sufficient to look at the huge volumes of evidence generated by social media and mobile ‘phones. Although, he adds: ‘I don’t think it’s terribly difficult, is it? It’s not brain surgery for the officer just to have a someone’s ‘phone.’
And the problem is not limited to sexual cases. It is, says Hayes, ‘widespread’. ‘The reason the Liam Allen case pulled the media and the public’s heart-strings, was because this was a young man who could have been anyone’s son – to be brutally honest, a middle class boy from a decent family, of good character, who’d been charged with something very serious. If it had been a drug dealer, or someone in a gang, and disclosure hadn’t taken place, it wouldn’t have made the newspapers at all.’
And he predicts the problem will get worse and there will be more miscarriages of justice, because the police and CPS will hand everything over to the defence without reviewing it and the defence won’t read it because they are not getting paid to. ‘So no one will read anything and the little nuggets, the golden nuggets will be hidden.
‘There will be wrongly convicted people in prison, but what can we do about it – how do we know. If the police haven’t told the CPS and nothing has been flagged up on the unused – how do you know? And if it’s five years down the line, everything will have been destroyed?’
At the likelihood to of the Court of Appeal righting wrongful convictions, he laughs. ‘I like appearing in front of the Court of Appeal, because you tend to win your arguments and then they say at the end, “yes, but ‘is it unsafe?”
‘To which I always say “of course it’s unsafe for all the reasons you’ve just given”, and then they say they can’t grant the appeal.’ Its reluctance to overturn verdicts, he puts down to the fact that the court does not want to criticise brother judges for fear of undermining the whole system.
Presumption of anonymity for defendants in sexual cases
To prevent the lives of so many wrongly accused individual’s being destroyed, Hayes would introduce a presumption of anonymity in all sexual cases, unless the prosecution can persuade a judge that it’s in the public interest and in the interests of the enquiry for the defendant to be named — for example in cases involving a potential serial offender, like Warboys, to bring in other complainants.
‘In a case where there’s a boy and a girl, drink has been taken, there is no other supporting evidence, what’s the point of naming the individual; it’s just not fair.’
Being charged with a sexual offence with a trial, asserts Hayes, is worse than being charged with murder, even when you are acquitted. ‘You’re ostracised by friends, you lose your job, people will remember your name, which will come up in a Google search, but they won’t remember you were acquitted.’
He reckons that Liam Allan’s case makes a change in the law a possibility, but it will require legislation, and he bemoans: ‘The government is paralysed in the headlights of Brexit. Everything is seen through the prism of Brexit. Good sense and priorities have gone out of the window.’
The move, he states, is not anti-women, but ‘common sense’ because the ‘pendulum has swung too far the wrong way’ i.e. in favour of complainants and away from defendants.
‘As Angela Rafferty says, there’s been an almost unconscious bias towards that terrible word ‘the victim’ — we have the victim’s charter and the victim’s tsar,’ he says, raising the ‘heretical’ thought that they are unnecessary.
Also unnecessary, he suggests, he is the planned new law against upskirting: ‘There’s a law already – outraging public decency. But if it makes people feel batter, do it. And if MPs want to change the law – let them do it.’
Hayes is also against appointing judges from academia rather than practice – something he regards as ‘fucking insane’, and he is against legalising cannabis (though he would change the law to allow doctors to prescribe it for medicinal purposes).
He is in favour of reforming the legal aid means test, so that more people are eligible, and regards it as ‘weirdly sensible’ to impose a levy on city law firms to fund legal aid.
His rationale: ‘The city does so well in law is because people around the world look at our criminal justice system and think we have the the fairest justice system in the world.
‘It is the fairest in the world if you’re a wealthy man looking to divorce your wife and it is the fairest in the world if you’re a filthy rich businessman who wants to protect the reputation of his company or avoid your taxes, but for everyone else it’s a bit shit.’
Career and background
The MP for Harlow for 14 years (1983 -1997), Hayes does not miss politics. ‘It’s much more fun doing media, journalism and the bar.’ He went to the bar because: ‘I wanted to be an actor, and I do theatrical performances in court.’
He attended Mid Essex Technical College and School of Art and got a third in his law degree from the University of London. There were no lawyers in his family, he had no real idea what it was about and only got pupillage through a friend. His pupil master was the wonderfully-named Ernle Money and he had to pay 100 guineas for the privilege of doing it.
‘He was a lovely man, but a nightmare in court. He’d pick fights with everybody,’ recalls Hayes whose own style is very different. ‘I like a nice gentle atmosphere in court. I’ll fight my corner, but I just want everything to go nicely and smoothly. Some people are just bastards in court and some judges are stupid.’
On whether the quality of judges has declined, he says: ‘Don’t forget it was a very low bar when I first started. There were some very mad people – some of whom nowadays would be committed or put in place of safety – and should never have got on the bench at all.’
He recalled doing a shoplifting case before Lord Dunboyne. After a summing up in which he suggested to the jury that the defendant had worn a great coat with a poacher’s pocket in which to conceal the stolen goods, Dunboyne reported Hayes and the prosecutor to the Bar Council for suggesting there was no evidence to support his assertions.
Their disciplinary hearing went well, due to Dunboyne’s reputation for being ‘mad and deaf’ and the two young barristers were advised to ‘go off to El Vino and get pissed’.
In his career at the bar Hayes has acted in many high-profile cases, including the successful defence of a soldier in Basra accused of drowning a teenager and representing Labour councillors charged with postal ballot fraud. He also acted for Liberal Democrat MP John Hemming in his legal bid to challenge postal votes at the 2005 general election.
All the people he looked up to in the profession are dead. Among the living, he rates 2 Hare Court’s Jonathan Laidlaw QC and Orlando Pownall QC. He would have liked to meet George Carman and was in the next-door court at the Bailey when the great man defended Jeremy Thorpe.
He recalls going down to the cells and the jailer telling him that Thorpe was in. The former Liberal leader had asked for a tablecloth when eating his sandwich to which the jailer replied ‘this is not the national bugger all club, Sir’.
From barrister to politician and radio show host, one thing Hayes emphatically denies being is the anonymous blogger and author the Secret Barrister. ‘I wouldn’t have given any of the book royalties to charity and I wouldn’t need to be anonymous,’ he protests.
Though before his Lovesport radio show was axed due to a licence change, he did interview the elusive individual – he can’t and won’t spill the beans on their identity, having signed an NDA promising not to tell.
‘I’m told authoritatively it’s a bloke in the west country. I’m also told authoritatively it’s a woman in the north,’ he teases.
Before the tape recorder goes off and Hayes pours forth his more indiscreet “off the record” thoughts, he imparts his wisdom on the art of advocacy: ‘Communication — with the judge, your client, your solicitor and most important of all to the jury. Make them laugh, make them cry, make then pay attention.’
And on whether there is a future for the criminal bar: ‘Of course it has and I’d encourage anyone to do it. It’s fun and I love it. I’m 65 and I’ll never give up.’