Legal Hackette lunches with William Clegg QC

Mz8mAYlwOver saltimbocca and potatoes washed down with a glass of Chiante, at Isobella — not far from his 2 Bedford Row chambers — William (Bill) Clegg QC discusses the ‘crisis’ in the criminal justice system, ‘squalid’ courts, ditching wigs, mental ill-health among barristers, and his book, Under the Wig, ghost-written by one of his former clients, and published this week.

Almost half a century ago, when Clegg, one of the country’s leading QCs, was starting out, it was, he says, ‘another world. ‘We didn’t have mobile phones, so when you finished a case you had to rush out and put a shilling into a phone box to call into the office, there were no computers, and no photocopiers. The way the profession has changed is remarkable.’

cj2_2wMABut not all of that change has been for the better. Battered by a decade of cuts, imposed by a supine Ministry of Justice at the behest of a Treasury that dislikes the open-ended nature of the legal aid scheme, Clegg says the criminal justice system, the profession and the courts are in ‘crisis’ with the morale of judges and lawyers at an all time low.

Between 2011 and 2020 the ministry’s budget will have been scythed by 40% in real terms. ‘There is no department that has had greater cuts as a percentage of its budget,’ he notes, and they are taking their toll.

‘If you go to any crown court today in London, you’ll find lavatories that are blocked and don’t work, lifts that are broken, carpets that are threadbare, roofs that leak, walls that need painting – they are squalid.’ In contrast to some of the ‘third world’ countries where he has practised and where the courts are ‘kept immaculately clean as a matter of pride by the people who work there and the governments, as an example to say that “we can do justice here”.’

The Central Criminal Court, or Old Bailey as it is affectionately known – where Clegg sits as a part time judge, is protected, not because it is the country’s flagship criminal court but, he says, because it is the City of London that picks up the maintenance bill, rather than the MoJ.

‘Go to Southwark and see the conditions there, or Inner London – they are unbelievably squalid. We need a huge injection of capital’ – not something he anticipates will be forthcoming, suggesting the lack of funding and the condition of the courts is ‘indicative of the lack of respect for the rule of law’.

Staffing cuts at HM Courts & Tribunals Service, says Clegg, have been a false economy, causing inefficiency and delays, as staff have to cover several courts. ‘I’ve sat recently as a judge and I couldn’t start because there was no clerk to begin the proceedings and no usher available, and I’ve known cases where you can’t send the jury out because there’s no usher to take the oath.’

Slashing the legal aid budget by more than 40% since 2005, has “damaged our system of criminal justice” and created the risk of a two-tier system, where those who cannot afford to pay privately will get a substandard service, inevitably resulting in miscarriages of justice.

The cuts, he says, have made it hard for legal aid barristers, who have seen their take-home pay halved, to survive. Average earnings are, he estimates, are around £28,000 a year net – not including provision for sick pay, holiday pay, maternity or paternity leave or a pension. And he points to a survey by the Young Legal Aid Lawyers group which revealed that 85% of those qualified for up to 10 years earn less than £25,000 a year.

In his book, he writes that: ‘In the 1950s and 60s and even the 1970s, a barrister could afford to buy a townhouse in the better parts of London such as Chelsea or Putney. Nowadays they will be lucky to afford a one-bedroom flat on the outskirts of the capital.’

The poor pay, he says, means that only the wealthy or those with a private income can afford to practice as legal aid barristers, setting back the progress to increase the diversity of the profession back by 30 years. A state school boy who received full grants for university and the bar course, Clegg reckons if would be very difficult for him to chose a career at the publicly funded bar today. And he notes that pupillage applications made to his set – one of the top criminal chambers, which offers four places a year – have fallen by two thirds in the last eight years.

A4vz2CV5Anxiety over money coupled with the long hours and intense pressures of the job, observes Clegg, contributes to a high level of depression and mental ill-health among barristers, who are ‘working harder than ever and getting less money than ever.’

He estimates that between 5% and 10% of the barristers that have been in his chambers over the years have suffered sufficiently serious depression that they have had to stop work for a time, though with treatment and support all were able to return to work.

The drop in income due to falling fee rates, he says, has forced some sets to lay off staff, merge or go out of business. His own set, he says, has been less affected than most because it decided a few years ago to reduce its dependence on publicly funded work. ‘Fifteen years ago about 90% of our turnover came from legal aid, now it’s about a third.’

Clegg has done no legal aid work for several years, because he says he would be forced to provide a ‘substandard service’ as he wouldn’t be able to instruct the best experts and couldn’t expect solicitors to do the large volumes of work required for the fees on offer.

The cuts, he says, mean that when he represented Barry George in his retrial after being wrongly convicted of murdering the TV presenter Jill Dando, he received roughly half what Michael Mansfield QC had been paid for defending him the first time round, and that he would be paid about half as much again today.

‘If Barry’s solicitors had come to my now I would not be prepared to act in his case; the experts that I instructed would likewise refuse to act. If Barry George were re-tried now, would he get justice?’

His perception is that ‘the government doesn’t really care whether people are well-represented’ because they see all defendants as ‘just a bunch of criminals’ – and will provide the minimum representation necessary to ensure they are not hauled up before the European Court of Human Rights for failing to provide fair trials.

Earlier this year when criminal barristers decided not to accept new legal aid cases in protest over further cuts to fees paid for crown court work, under the advocates graduated fee scheme, his set unanimously supported the action.

To prevent escalated action that would have seen barristers refuse to cover cases returned by others, the ministry promised £15 million more funding. In June, by a narrow Brexit referendum-like majority, 52% of the 3,038 barristers who voted agreed to accept the pay deal and halt further action.

Since then, a four-week consultation on how the extra money will be spent has been delayed, barristers fees remain unchanged and practitioners claim that the actual additional funding on offer amounts to only £8.6 million, rather than the £15 million pledged.

As a result, says Clegg, there is a ‘great deal of anger in the profession’. Barristers, he says ‘don’t feel that the government is playing fair with them, and that it will say anything to get you back to work and then renege on it’.

Echoing comments from Chris Henley QC, the chair of the Criminal Barristers Association, Clegg says: ‘I’m surprised there is any trust left in the MoJ. If there is a thread, it’s a very thin one.’

He predicts that without more money, barristers will take further protest action – downing tools for a day, then refusing new cases and returns, which he says ‘will very soon bring the whole thing crashing down.

‘People are just fed up to the back teeth of seeing their income cut in a way that no other profession has. People, rightly I think, will say it’s not fair.’

What is required, he suggests, is a legal aid system that recognises the distinction between very serious crimes like rape and murder, and less serious offences such as assault and shoplifting, and provides reasonable remuneration in each, commensurate with the work that has to be done. This, he says, cannot be done without a significant increase in the legal aid budget – and suggests that reverting to the rates paid a decade ago would be ‘good start’.

‘It ought to be looked at not so much as an increase in funding, but as the reinstatement of funding wrongly removed,’ he adds.

Due to the cuts, he continues, there is more privately paid work about – ‘because so few people qualify for legal aid and even those who do are realising quickly that you won’t get the barrister you want or the service you want on legal aid’.

Many people charged with criminal offences, he says, are making huge financial sacrifices or taking out second mortgages to pay for their defence, often against flimsy cases that should not have been brought.

‘I did a case for a schoolmaster whose family used their life savings, which had been set aside to look after his mother, who was showing early signs of Alzheimer’s.

‘As luck would have it, not only was the case won, but it was such a scandal that the judge ordered the CPS to pay his expenses, because the case should never have been brought — but that’s very rare.’

Disclosure failings by the CPS in rape cases, exposed first at the end of last year in Liam Allan’s case, and figures reported in the Guardian showing that less than a third of rape prosecutions brought against young men result in a conviction, have prompted suggestions that juries have become less willing to convict.

But Clegg argues that it may also show a desire by the prosecution to proceed with cases irrespective of the likelihood of success and a failure to abandon those that have no realistic prospect of conviction. ‘A large number of acquittals does not mean that guilty people are being let off. It’s just as likely to mean that a lot of innocent people have been prosecuted on the basis of a false or exaggerated complaints, or that somebody who undoubtedly was a victim of a sexual assault could never, on the face of the material before the court, have that proved to the criminal standard.’

Clegg detects too great a willingness by prosecutors to unquestioningly accept that a complainant is telling the truth, even in the face of circumstances that suggests things do not add up and where ‘there isn’t a cat in hell’s chance of conviction’.

There should, he suggests, be a critical assessment of cases, and those where there is no hope of conviction should be stopped at an early stage. ‘It only causes added trauma to victims to go through a trial and hear a “not guilty” verdict announced.’

But, he adds: ‘The problem is, if you don’t prosecute, a victim can complain and ask for a review. So to some extent it’s easier to prosecute.’

He recalls a case he did where incontrovertible medical evidence proving the innocence of the accused, was served on the prosecution nine months before the trial, but it took the prosecution until the second day of the trial to stop, wasting tens of thousands of pounds.

A huge fan of the jury system, Clegg says that in 47 years in practice, while there are cases where he thinks he got a ‘lucky result’ he can only think of one occasion where he thought the jury had come to ‘a really bad decision and convicted somebody who I felt was innocent’ – adding that fortunately the verdict was quashing on appeal.

‘It maybe that more people get acquitted under the jury system, but it’s better that ten guilty men go free than one innocent man is convicted.’

Dismissing any potential unfairness to defendants because no reasons are given for their decisions, Clegg says ‘that it is the sacrifice you make for the safeguards of having verdicts decided by juries’.

Judges, he says, would make poor triers of fact, as they get too cynical. ‘Because we see it all the time, we may not spot the genuine, innocent man among all the endless crooks who come up before you’.

On other matters, Clegg would like to see an ‘upgrade to the role of lord chancellor’, which he says has been ‘devalued since Tony Blair tried to abolish it.

‘Now, it’s used as a stepping stone for some other ministry and the ministers who’ve been filling the post are more interested in getting promoted somewhere else than doing the job.’

Although he favours a return to the days before the Constitutional Reform Act 2005, when the role was separate from that of the secretary of state for justice, he would not go back to the regime where the incumbent sat in the House of Lords.

To help improve the growing problem of the shortage of senior judges, Clegg suggests judges should be able to sit beyond the current retirement age of 70 – to 72 or 75.

‘When people are healthier, fitter, living longer, and everybody is working longer why reduce the retirement age for judges?’ he asks, noting that the change was introduced just after the time judges had to serve in order to get a full pension was raised.

Forcing judges to retire at 70, he says, means the senior courts lose their experience to the commercial circuit where they sit as arbitrators in civil actions in Dubai, Hong Kong and London, earning fortunes, because they’ve kicked out of doing the job of a high court judge for far less money.

While no-one wants judges sitting who are incapable through age, he suggests that there could be the equivalent of an MOT certificate to show they are fit to practice. ‘A senior judge could look at transcripts of their summings up and provide a discrete reference on their capabilities.’ After all, he adds: ‘You can sit as a juror until you are 75 and practice as a barrister until you are 80.’

On a lighter note, Clegg suggests that barristers and judges in criminal cases should ditch their traditional horsehair wigs, stating that they ‘look ridiculous’ and are a hangover from a time when poor health meant wigs were the norm.

In his book, he says: ‘Some judges think the wig gives them an air of authority, but if you need a wig to exercise authority over your court then you are not much of a judge. I think that justice is better done by the judge’s words rather than what he has on his head.

‘The thought that you have to put part of a horse on your head to appear in a criminal trial is absurd.’

The Book

UnderthewigCOVERTurning to his book, Under the Wig. It was three years in the making, after Martin Hickman from Canbury Press approached him with the commission. The publishers, he explains, did not want a standard legal memoir, but a book aimed at non-lawyers, to demystify the profession, explain how it works and give a short synopsis of some of his most interesting cases.

After it became obvious that, with his day job, it would take a decade to write the book, a ghost writer was drafted in, in the form of the journalist John Troop, known as Troupy.

‘Troupy had been a fixture in Fleet Street for many years and had become the East Anglia correspondent of the Sun. He was caught up in Operation Elveden — the Metropolitan police’s campaign to stop journalists paying public officials for stories – and I was asked to defend him, having recently successfully defended the head of security of News International in the News of the World phone hacking trial’.

Charged with paying £300 to a prison officer for information about the suicide of a prisoner, Troop went on trial with other journalists and photographers working for the Sun in a trial that lasted 12 weeks. ‘He was acquitted, as I was always confident he would be. It was a very stupid case to bring against him in my view.’

Economically, simply and engagingly written, it is a modest book for a man who, in his lengthy career has defended more than 100 people charged with murder and acted in some of the most high-profile cases in recent years, including representing Colin Stagg, Michael Stone, Britain’s first Nazi war criminal and a man wrongly convicted of murder on the basis of an ear print.

The cases and profession take centre stage, not the man under the wig. Accounts of fourteen of the most colourful cases he has worked on are interspersed with chapters explaining the workings of the legal profession, the reality of life as a barrister, the rivalries and machinations in chambers, and tips on how to do the job. It is a must read for anyone with an interest in the law and justice, aspiring barristers and those with an interest in legal history.

Fascinating historical details include: how when he was called to the bar by Gray’s Inn in 1972 he was given a certificate confirming him to be an ‘utter barrister’; attending a hearing on his first day of pupillage, held in the former home of Lady Astor, because London was short of courts; appearing in a fraud trial at Chichester Rents in 1991, where for the first time a court took live evidence via video, sitting at 7.30am to hear witnesses from Australia and the Far East; and the continued tradition of giving nosegays of flowers to Old Bailey judges – originally done to ward off the stench from the cells of Newgate Prison below.

Memorable among the cases is Clegg’s chilling realisation on reading the papers to defend Robert Napper (briefed by Robin Murray & Co), who pleaded guilty to the manslaughter of a young mother and her daughter whom he had brutally killed in 1994, that the crime had been committed by the same person who had killed Rachel Nickell on Wimbledon Common in 1992.

Clegg had previously represented Colin Stagg, who had been charged with murdering Nickell, on the basis of criminal profiling and the fruits of a dubious undercover police operation, before being acquitted.

There are accounts of the preparation for a 22-day, old-style committal at Dorking Magistrates’ Court in relation to the 84-year-old Szymon Serafinowicz, charged under the War Crimes Act 1991 of murdering Jews in Belarus during the Second World War, and the trial of Anthony Sawoniukm, known as Andrusha the bastard, who became he first person in Britain to be convicted of war crimes. In the latter case, the jury and entire court team schlepped out to Belarus to visit the crime scenes.

During the phone hacking trial, Clegg recalls the kindness of the former News of the World editor, Rebekah Brooks, who bought him cough sweets when he had a cold during the case.

And there is an entertaining anecdote about a good-humoured judge at Snaresbrook crown court. A defendant when asked by the clerk to confirm his name, replied ‘Fuckwit’. In response, the judge asked the clerk to amend the indictment, replacing his name with the word ‘Fuckwit’ and then read the charge to him again.

At the start of the book, Clegg gives his answer to the dinner party question dreaded by all barristers – how can you defend someone guilty of murder? In answering it, he reveals that his greater difficulty comes when defending someone whom he suspects is not guilty. ‘The thought that an innocent man may be incarcerated for the rest of his life because I have failed to expose the weakness in the case against him means I don’t sleep at all well at night. It is a worry that gnaws.’

The boy

YXKbxjWgClegg’s parents owned a florist shop in West-Cliff on Sea, in Essex. As a child he would he would get up at 4am and go to market with his father to buy flowers. A sate-school boy, he failed the 11-plus and went to St Thomas More Roman Catholic Secondary Modern and West Cliff High School.

Watching Perry Mason on television made him want to become a barrister – a career his parents initially felt was a ‘little ambition’, instead suggesting he become a pharmacist.

He studied A-levels in history, geography and economics, getting two As and a B, and got a full grant from Southend Council to study law at Bristol University. A student from 1968-71, he took part in anti-apartheid demonstrations and sit-ins, and describes his politics at the time as ‘broadly left-wing’.

Outnumbered by students who had been to private schools, who brimmed with a confidence that did not come naturally to him, Clegg says he was ‘conscious’ of his different background, but says it has his helped him to deal with clients throughout his career.

His tutor, George Frost, maintained a criminal practice while teaching law, and lectures were held at 9am so he could be in the Assize Court at 10.30am. Clegg recalls that he did not learn much law at university, having eight hours of lectures and two tutorials a week. ‘I could probably have learned the law that was actually useful to me in three months,’ he notes.

Back then, wannabe barristers had to eat 24-36 dinners, and getting pupillage was difficult. Clegg secured his with a barrister called Ronnie Trott, through a solicitor who had arranged the leases for his parents’ flower shops. Clegg describes Trott as ‘the antithesis of everything I thought a barrister would be’ – he was short, had only four teeth, and was a vegetarian teetotaller who had been to state school and had previously worked as an engineer for Marconi.

In the second six months of his pupillage, he recalls his first case was a murder committal at Wallington Magistrates’ Court in which he was given strict instructions to say nothing and for which the fee was £10 – a sum, he says, he has still not received from the instructing solicitors, Sampsons.

His second case, he recalls, was a ‘glorious failure’, softened by the £8 fee. And, giving hope to all those not taken on at the end of pupillage, Clegg failed to get tenancy at 3 Hare Court and squatted for some time – only being taken on when others left.

He took silk in 1990, by which time he says his father had given up hope of him becoming a pharmacist. At the time, applications were in the gift of the lord chancellor and hopefuls applied by posting the details of how much they had earned over the last three years. In contrast to today, there was no fee, and he did not throw a lavish party. After the formalities he had a ‘low-key drink’ in chambers and it was all over by 8pm.

Still working away, Clegg intends to keep going, but ‘not for another 47 years’. This term he has three appeals and a couple of trials, and next year, 50 years after he joined as a student, he becomes the treasurer of Gray’s Inn. Accepting that he is coming to the end of his career, he says: ‘I think it’s very sad to see people carrying on too long,  beyond their capabilities. There’s nothing worse than hearing someone say “he used to be quite good, you know”. I’m determined not to go out in disgrace.’

Assessing his career, Clegg reflects on his cases with humility: ‘Some are almost impossible to lose; some nobody could win. But there is a group in the middle where the barrister can make a difference’.

Fifty years after he enrolled to study law, it is obvious that Clegg still loves it. Ending his book, he writes: ‘What I like doing more than anything else is reading a new case … That moment when I am about to turn the first page is the most thrilling’.

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