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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MPs back Liam Allan’s crowdfunded justice movement

EXCLUSIVE PRE-LAUNCH INTERVIEW WITH LIAM ALLAN

Seven months after the Crown Prosecution Service (CPS) was forced to drop a rape prosecution of Liam Allan, the student who became the reluctant poster boy for the scandalous disclosure failures has launched a campaign on social media to prevent miscarriages of justice.

DjQutmeX0AAat0GBacked by MPs including Nigel Evans, the former Commons deputy speaker, who in 2014 was acquitted of charges of rape and sexual assault charges, the campaign seeks to bring together all the disparate groups interested in criminal justice reform and elect a five-strong review panel that will act as a watchdog to monitor the CPS and police, make them accountable for change and provide ideas for reform.

Mr Allan, together with Manchester University professor, Claire McGourlay, who runs the Miscarriages of Justice Review Centre, and second-year Sheffield University law student Annie Brodie Ackers, initially want to increase awareness of the failings of the criminal justice system and the impact on innocent individuals.

Their campaign document detailing their plan of action, published on Twitter last night, said: ‘The aim will be to unite as many people together as possible, and work with the police and Crown Prosecution Service to create a dialogue for change.’

It stressed: ‘For change to happen in the right way, the approach must be respectful to real victims and it must be balanced. This event will approach miscarriages of justice and victims in the broader sense in a way that is fair, respecting victims, complainants and the police.’

The trio opened a crowdfunding page on the JustGiving website to raise £10,000 to support the campaign and conferences ‘to influence change in the Crown Prosecution Service with regards to the way innocents are failed in multiple ways by the Criminal Justice System’.

They said: ‘Many believe that you are only charged, and potentially convicted, of a crime if you are proven guilty, sadly however, this isn’t the case. Many innocents are accused or suspected of a crime that they are not guilty of. For example, a false allegation can happen to anyone, regardless of age, sex, gender, race, religion or background.’

From November to March 2019 they aim to run a series of conferences titled ‘Innovation of Justice’ in Manchester, Sheffield and Cardiff, before hosting a three-day conference in June at the House of Commons in London, to spread the word and collect proposals for reform, before electing the review panel.

That panel will seek two meetings a year with the CPS, police, and justice committee to get progress reports, highlight problems and make recommendations for change.

Commenting on why he is backing the campaign, Mr Evans said: ‘Now is the convenient time to do this, with the current Director of Public Prosecutions, Alison Saunders, on her way out and a new DPP coming in. It is not just a case of rearranging the deckchairs, we need a new broom to sweep clear the rot in the current system.

‘I have no doubt that there will be people in the profession who will want to back this because they do not want to see the system rigged in such a way that justice is not being done.’

Mr Evans said that even when judges complain about disclosure failures, nothing is done ‘There is just a shrugging of the shoulders and everything continues without change. There seems to be no shaming of the police or CPS when evidence is withheld and people’s lives absolutely ruined.’

He added: ‘It is not as if Liam’s case was an exception; it seems to be the norm, and that is appalling.

‘We have go to hold their [the police and CPS] feet to the fire and keep them on the straight and narrow – and this is the perfect way of doing it. If we can get people to come together, we can bring about change.’

The campaign has the support of Barry Sheerman MP, chair of the all-party parliamentary group on miscarriages of justice (APPGMJ), and will work closely with it.

It is also backed by Sheffield Heeley MP, Louise Haigh, the universities of Sheffield, Manchester and Greenwich, campaign groups including JENGbA, and law firms including Irwin Mitchell, the Johnson Partnership, Howells, Norrie Waite & Slater, GWB Hartills, Lam & Meerabux and Tuckers Solicitors.

Digby Johnson, senior partner of The Johnson Partnership, one of the country’s largest criminal legal aid practices, said: ‘We work in a number of crown courts and CPS areas around the country – the level and standard of disclosure varies dramatically between areas and prosecutors.

‘A lot of prosecutors see restricting disclosure as a macho badge of honour. If anything can be done to make that badge of honour a stain on their professional character and be held against them, that would be a good thing.’

Mr Johnson added: ‘People ought to regard disclosure as something that can’t be just brushed off. The decisions that a prosecutor makes need to be reasoned and considered. It wouldn’t be a bad thing if there had to be disclosable written record of the reasons why disclosure has not been made’.

In particular, he said disclosure of digital evidence was ‘absolutely vital’ and may be as important to the criminal justice system as fingerprint or DNA evidence has been over the years.

Funding, he said, needed to be made available for proper consideration of this evidence, adding that doing so could save money because proper disclosure could encourage the guilty to plead guilty earlier or prevent others from being prosecuted in the first place.

n1H6Rwra_400x400Mr Allan said: ‘We are not here just to criticise the police and CPS – this not about police-hate or being anti-victim – we are very much aware that rape does happen and victims need to get justice. We are trying find solutions for all of us – for victims of crimes and for those who are wrongly charged or imprisoned — innocent people whose lives are devastated.’

On the day he launched the campaign, Mr Allan called for: the widespread pre and post trial disclosure failures to be addressed in all offences, not just in cases of sexual assaults; reform of the law of joint enterprise and a review of the operation of the Court of Appeal and under-resourced Criminal Cases Review Commission (CCRC).

‘I had always thought the Court of Appeal and the CCRC were fighting to correct miscarriages of justice, but they are not. They are not helpful, it’s just for show.

‘The CCRC refers only 0.03% of the cases it receives to the Court of Appeal — everyone else is left in prison. I could have been shut away in prison for ten years and would have been one of the many seeking to get a wrongful conviction overturned.’

He called for anonymity for defendants in all sex cases, unless otherwise ordered by a judge to encourage other potential victims to come forward.

Mr Allan stressed that genuine victims of crime must not be deterred from coming forward, but he called for those who have lied and made false allegations of rape to be prosecuted. He emphasised that he did not want to see complainants prosecuted in cases where juries have found defendants not guilty or rape. ‘In those cases, it does not mean that the complainant has not been raped, it means that the jury was not sure on the evidence beyond reasonable doubt.

‘If you open the door to prosecuting these people, it could be dangerous and would put off genuine victims from reporting offences.’

Mr Allan also called for information about the criminal justice process and people’s rights to be on the national curriculum. ‘School children should be taught about criminal justice and their rights – information needs to be made as simple as possible.

‘I didn’t know my rights at all – I didn’t know about legal aid or disclosure or how the process should be done. I was oblivious about the system and wrongly assumed that everything would be done properly’.

He further suggested that government money would be better spent on funding criminal legal aid adequately, instead of the spending vast amounts sending people to prison.

Mr Allen, who despite his two-year deal gained a first class degree in criminology from the University of Greenwich, said that the idea for the campaign came to him during a meeting of the APPGMJ, for the launch of the book ‘Guilty Until Proven Innocent’, by journalist Jon Robins, at which he spoke. ‘I started to see that there were so many different people doing different things about the criminal justice system and miscarriages of justice, which was confusing for the media and the public, who didn’t know where to focus.

‘I thought we needed to get people fighting for change all around the country, and if people were serious about making change, we all needed to work together.’

He expressed the hope that Sir Cliff Richard, who successfully sued the BBC over its coverage of the police search of his home four years ago, would get on board with the campaign.

On making lasting change for the better, he said: ‘There is a new hope where there hasn’t been hope before. Hope is the most powerful thing we can have together. It makes things possible.’

Speaking about his ordeal, during which he was on bail for two years with the case hanging over his head, he said: ‘When I was charged, I was initially suspended from my job as an assistant manager in retail sales, before being allowed to return, and feared I would may lose my place at university. ‘

Mr Allan had always denied the charges, stating that the sex had been consensual, but it came down to the complainant’s word against his. In the run-up to the trial, his lawyers had made repeated requests for disclosure of text and social media messages, but had been told by the police that those that existed were ‘too personal’.

Mr Allan was incredulous: ‘How can anything be too personal — rape is the most personal offence.’

At the start of the trial it became clear that the prosecution was relying on text messages and his legal team again asked to see everything that had been downloaded. It was not until a new prosecutor, Jerry Hayes, was instructed that thousands of text messages were finally disclosed on the third day of the trial, including conversations that the complainant had had with others, which proved Mr Allan’s innocence — he and his team  were up until the early hours of the following morning going through them.

Following the revelation, the case against him was dropped and Mr Hayes told the court it was the most appalling failure of disclosure he had ever encountered. After a review of the case the police, who Mr Allan is intending to sue, apologised for its failings. The case prompted a review by the CPS into disclosure in sex case, an inquiry by the justice committee and the CCRC announced that it will review more than rape convictions due to concerns that it failed to identify disclosure failings.

But Mr Allan is adamant that problems in the system should have been addressed earlier. ‘It shouldn’t have taken this long and it shouldn’t have taken my case to get a review of the disclosure problems. People have been raising the issues for years – it shouldn’t have taken the worst case scenario before people acted.’

It was not only the disclosure process that failed him. After his arrest, he was initially represented at the police station by the duty solicitor. But unbeknown to him, the firm was closed down six months before he was charged. ‘No one told me – I had to track down the agent who had represented me at the police station who told me.’

Despite knowing his innocence, from the start of the trial, he said he began to lose a little bit of hope. ‘From the moment I walked into court, they [the prosecution] sought to add another charge. I honestly believe that part of the reason was that they hoped that the jury would believe one of the charges.

‘It felt like I wasn’t just fighting one battle, but that I was fighting 12 battles. If I could prove that one of the charges was a lie, it wouldn’t be enough – I’d still have to show that the others were lies too.’

Throughout the ordeal, he said it was his family and friends who kept him going. ‘I can’t even begin to praise them all enough but they were all there for me when it mattered most.

‘It was a fight for the truth and a fight for my life. I would have easily just have given up if it wasn’t for them, in all honesty. They were my support network and one day I hope I’ll be able to repay them for everything they’ve done for me.’

Despite everything that Mr Allan has been through, he is remarkably calm. He said: ‘There is of course underlying anger and upset, but just being angry never got anyone anywhere.

‘For our idea to work and to promote unity I need to be level-headed and open-minded, which is pretty difficult. ‘

He said that despite the continued coverage of the case, he has tried to move on and made his peace with what has happened.

‘That’s not to say I will ever agree it should have happened, but there are other people out there who have been through the same thing or are going through it now, so my mind is just focused on how we can help those people.

‘It’s probably therapeutic focusing on others needing help too, but if I was always angry about what happened to me then it would always define who I am and eventually consume me. Who would listen to an angry vengeful student really?’

Before his arrest, Mr Allan has wanted to work in the criminal justice, but he has since changed track. His desire to help people remains but, apart from through the campaign, he hopes to do it differently, and will start an MA in sociology at Greenwich University.

Ms Ackers, who as a child experienced the sharp end of criminal justice failings when her father’s violence against her mother went without charge, said of the campaign: ‘We want to achieve unity – change happens when people come together. We are acting on behalf of all who have been badly treated by the criminal justice system — victims who have not got justice as well as those who are wrongly accused.’

The ‘under-resourced’ criminal justice system, she said, did not work in the way it should. ‘People are not seen as innocent until proven guilty, but have to prove their innocence.’

She stressed: ‘We don’t want any of this to stop victims of crime from coming forward. Prosecutions still have to happen where people have been victims of crime, because that is absolutely devastating’.

Ms Akcers met Allan after inviting him to speak at Sheffield University. She said: ‘What happened to him could have happened to anyone – and I wanted to raise awareness of this to people of our age.’

A shorter version of this appeared in The Brief from Times Law.

Legal Hackette lunches with Jerry Hayes

Jerry-Hayes-1162910Over 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.’

Disclosure

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.’

Guilty Until Proven Innocent by Jon Robins

cover_9781785903694Jon Robins’ powerful and timely critique exposes the catastrophic failings in the underfunded criminal justice system, that sends innocent people to jail, and how that injustice is compounded by the failure of the the Criminal Cases Review Commission (CCRC) and the Court of Appeal to correct those wrongs.

Hot on the heels of the Secret Barrister’s Stories of the Law and How it’s Broken, which lifts the lid on the crisis in the justice system, Robins’ compelling book, launched with less fanfare, tells vividly the human story of those whose lives are devastated by the all too frequent miscarriages of justice, but who are treated as ‘collateral damage’.

More than a quarter of a century since scandalous miscarriages of justice, such as the Guildford Four and Birmingham Six, ‘shocked the public out of its complacency about the supposed infallibility of the courts’ — and despite a royal commission and ensuing reforms, Robins’ book shows how little has changed for the better.

Setting the scheme in the foreword, Michael Mansfield QC, veteran barrister synonymous with miscarriages of justice, observes: ‘It’s not that nothing has changed; it has got worse.’

British justice, says Mansfield, has been ‘diminished and demoralised’. Lawyers fees have been frozen for two decades, the austerity agenda has seen the Ministry of Justice’s budget slashed by 40%, and the criminal justice pendulum has swung dramatically in the direction of complainants.

The book is published in the wake of the narrowly avoided miscarriage of justice in the case of Liam Allan, a student whose trial for rape was halted at the eleventh hour when the prosecution disclosed thousands of previously hidden text messages that showed his innocence.

The prosecution barrister, Jerry Hayes, told the court it was the most appalling failure of disclosure he had ever encountered, and later commented: ‘This is a criminal justice system which is not just creaking, it’s about to croak.’

Screen Shot 2018-07-01 at 18.05.21Robins considers 11 cases, exploring the common ground between them to shine a light on why the system keeps failing – they feature a mixture of false confessions, police misconduct and confirmation bias, non-disclosure, over-reliance on flawed expert evidence and misconceptions about statistics and probability.

Much of the book was written during the year that the CCRC celebrated its twentieth anniversary. The body came out of the recommendations of the Runciman Royal Commission on Criminal Justice, set up on the day that the Birmingham Six were released with the aim of restoring the battered reputation of British justice.

But Robins argues that the body designed to deal with wrongful convictions is underfunded, understaffed and oversubscribed. As it comes of age, he says, it ‘appears to be becoming increasingly timid’ and provides no effective safety net.

The CCRC saw the deepest cut anywhere in the justice budget (60%). But aside from its chronic underfunding, it is dogged by concerns over its lack of independence and inbuilt conservatism. Only cases with a ‘real possibility’ of being overturned can be referred back which, critics argue, makes it second-guess the Court of Appeal and take too pragmatic a view.

On average it receives 1,500 applications a year and refers just 0.77% of cases back to the Court of Appeal – fewer than its predecessor body, the ‘shadowy and discredited home office department known as C3’.

Eddie Gilfoyle, who is fighting against a conviction for murdering his pregnant wife in 1993, is quoted saying of the CCRC: ‘It’s not independent. They are the same as the Court of Appeal. They have become the Court of Appeal. They are so scared of the Court of Appeal they might as well be the Court of Appeal’.

Lawyers are tribal creatures and often reluctant to criticise senior judges. But Robins is not a lawyer; he is a journalist and author of the website The Justice Gap and he does not shy away from such criticism.

The Court of Appeal takes a battering for its continued failure to get to grips with miscarriages of justice. The book suggests how little distance has been travelled since the bad old days of the Birmingham Six appeals.

In 1980, the then Master of the Rolls, Lord Denning, so beloved of today’s law students, ruled that the six should have no further appeals. If they won, he said, ‘it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous’.

And in 1988 Denning reasoned: ‘It is better that some innocent men remain in jail than the integrity of the English judicial system be impugned.’ Cases in Robins’ book suggest in many cases, that remains the ethos of the court of appeal.

Founded in 1907, Robins describes the Court of Appeal as a ‘compromise and misnomer’ confining itself to examining only points of law, and ‘unfortunately, guilt or innocence is not a point of law’.

In his unfinished autobiography, quoted in the book, the late Tom Sargant, criticises the courts ‘unreasoning respect’ for jury verdicts and ‘unwillingness to let down the police’.

Glyn Maddocks is the solicitor for the late Tony Stock, whose appeal against his conviction for robbery has twice been referred to the court and twice rejected, even though a super-grass confessed and confirmed that Stock was not involved and the Court of Appeal’s decision has been shown to be wrong.

Maddocks slams the court for its ‘lack of willingness to engage with (or even recognise) the problem and its often intransigent, often arrogant and, dare I say, obdurate view that it knows best and is constrained by its own previous decisions, however wrong they may have been’.

‘The Court of Appeal does not do apologies’ says Robins, and even on the rare occasions that it does quash wrongful convictions there is often an appearance that it does so through gritted teeth.

He sites the case of Sam Hallam, one of the youngest victims of a miscarriage of justice. He was convicted aged 17 for a gang-related murder and spent seven years in prison. His father took his own life during his imprisonment, as a result of his son’s ordeal. There was no sympathy expressed by the court for Hallam, says Robins – ‘in fact, there was more than a suggestion that the then seventeen-year-old was the architect of his own fate’.

More shockingly, Robins shows the impact on the lives of those who are wrongly convicted — many lose not just their liberty and livelihood, but their friends and family, and come out of prison deeply damaged people, suffering depression, paranoia and post-traumatic stress disorder.

When a conviction is quashed, the wrongly convicted person often walks out with no notice or preparation, with less state support than other prisoners receive. Their only source of help is the Royal Court of Justice’s miscarriage of justice support service, run by Citizens Advice. In 2011, it is reckoned that one third of its clients found themselves homeless after being freed.

‘My sentence started when I was released,’ says Paddy Maguire, the youngest of the Maguire Seven, arrested aged 13 and wrongly convicted for an IRA bombing campaign in the 1970s.

When a conviction is quashed the Court of Appeal does not reinstate the presumption of innocence; it almost never offers an unequivocal declaration of innocence. And those who have been wrongly convicted are rarely entitled to compensation.

Tony Blair’s Labour government scrapped ex gratia payments for victims of miscarriages of justice and the coalition government limited compensation to those who can demonstrate their innocence ‘beyond reasonable doubt’ – so much for the presumption of innocence and, as Robins states, those whose convictions are overturned are ‘innocent – and yet not innocent enough’.

Sam Hallam and Victor Nealon (who served 17 years for a crime he didn’t commit and left prison with three hours notice, £46 in his pocket and a train ticket to Shrewsbury) have challenged this position and are waiting for a judgment form the Supreme Court.

‘The cases in this book should send shivers down the spines of every law-abiding citizen,’ states Rod Hayler, of Old Bailey Solicitors, in the preface. It is a book that informs, shocks and demands a response. It demands justice.

Guilty Until Proven Innocent is published by Biteback Publishing  and costs £12.99

Legal Hackette Lunches with Patrick Maddams

Maddams - headBefore soup in the wood-panelled dining hall, the outgoing sub-treasurer of Inner Temple, dubbed the man who made the bar a ‘demilitarised zone’, discusses scrapping dining, big ideas for post-graduate education, and why his will be the first Inn to fly the rainbow flag at this year’s Pride.

This is the final engagement for Patrick Maddams after 12 years in post. His successor Greg Dory, a former ambassador to Ethiopia and Hungary, listens attentively and takes copious notes. Both men are seated below an austere portrait of Baron Waller, a long-dead chancellor of the exchequer.

‘I didn’t choose him,’ says Maddams. ‘He was here when I arrived. I was told it was bad luck to move him, and I am superstitious. He glowers at me from time to time.’

A familiar face, often seen strolling around his fiefdom, Maddams grew up in North London, the son of a nurse and an engineer, and brother of travel journalist Bob.

He attended the Salvatorian College in Harrow. ‘We always to called it “the other Harrow” because it wasn’t the one at the top of the hill, but the Catholic state school at the bottom,’ he recalls.

Political connections

 Studying economics at Leeds University, he first encountered the former Labour home secretary, Jack Straw, who was president of the student union, whom he was to meet again years later when he [Straw, who got a 2:2 in law and became a barrister] was made a bencher of the Inn.

Pointing out his political neutrality, Maddams states that his first job was with the Standard Chartered Bank in West Africa where his boss was the former Conservative prime minister John Major.

‘He was a good boss,’ recalls Maddams, recounting that the young Major had been spotted and recruited by the bank’s chairman, Tony Barber, who, prior to joining the bank, had been Ted Heath’s chancellor of the exchequer.

Here, he notes an intriguing piece of history: ‘I mention Tony Barber because he was called to the bar by Inner Temple in 1943 in absentia from his prisoner of war camp in Germany. The Red Cross used to, in effect, run a correspondence course for those doing the bar. I have his file in the records – “Tony Barber, called to the bar in 1943 and his address, Stalag Luft whatever”.’

Managerial jobs with a shipping line in Liverpool and for Dunlop were followed by a stint as managing director of the Royal Academy of Music, before Maddams found his way into the law, as partnership secretary at City firm Beachcroft Wansbroughs [now DAC Beachcroft], where the senior partner was David Hunt, Conservative politician now Lord Hunt of Wirral.

From posh law firm to the Inn

‘Then came this remarkable move from a posh international City law firm to an Inn of Court,’ says Maddams. As the only civilian among the sub-treasures of the four Inns at the time, he recalls being disparagingly described as the person who made the bar a ‘demilitarised zone’.

It was the time of Clementi and the Legal Services Act, which looked set to turn the profession upside down, with a ‘strange and unfamiliar regulatory landscape’, opening the door to new providers and allowing barristers and solicitors to work together. Which, he imagines, is why his head was hunted. ‘Coming from a City firm that had been looking at legal regulation, it was a world I knew’.

The transition was not s simple as Maddams had imagined. ‘Not withstanding the fact that at Beachcrofts we’d instructed hundreds and hundreds of barristers, when I got here, I realised how little I knew about the barristers’ life. It was quite a steep learning curve.’

The legal profession

Keen to encourage closer relations between solicitors and barristers, Maddams stresses that neither has anything to fear from the other. He does not foresee fusion, but greater interchange between the two halves of the profession. ‘I am always pleased on call night to see seven or eight transferring solicitors,’ he says, explaining that they are generally lawyers who have done a lot of advocacy and want the prestige of the ‘barrister’ title, but who generally remain at their law firms.

For the bar in general, he sees a bright future. But the falling numbers going into criminal practice casts a shadow over the future for the criminal bar. ‘If we do not have junior members going to the criminal bar, where will get the future silks and judges?’

It would, he suggests, make a big difference if the Crown Prosecution Service (CPS) and HM Revenue & Customs recognised that the ‘experiment’ with employing in-house counsel in order to save money had proved to be a false economy, and reverting to instructing the independent bar more. He would also like to see the CPS training more junior barristers, who could after a few years’ experience, go into chambers.

His time at the Inn makes him feel that he would have enjoyed being a barrister, but a state-school boy in the 1950/60s put that out of reach. ‘Although the school was ambitious, and wanted its boys to do well, the bar was considered beyond you and you were advised not to do it,’ he says.

Recalling an anecdote from former grammar school girl, Lady Justice Hallett, who is a contemporary of his and now a bencher at Inner Temple, he says: ‘She told me that because she was a bright girl, the careers mistress told her that if she did very well, she might become a domestic science teacher.’

A brush with the law

While the young Maddams had no legal aspirations, he had a brush with the law when he was caught speeding. ‘I had been given a company car, which was a really big thing. It was a bright day, 7 o’clock in the morning, the M62 was empty and young Maddams decided to see how fast this car could go.

‘Suddenly the blue flashing light appeared in my mirror.’ He recalls the ‘sardonic policeman’ who wandered over and quipped ‘having trouble taking off are we, wing commander?’

The following Monday, he found himself at Huddersfield Magistrates’ Court – on the morning after a ruby match that had ended with a punch-up between the two teams. ‘It was mayhem.

‘I was on my way to work, so I was wearing my suit. I was going to plead guilty, of course, and throw myself on the mercy of the magistrates. In this bedlam, there was a court official shouting out “Mr Maddams, court number three”. I walked up to him and I said “Mr Maddams”. He replied ‘I’m terribly sorry Sir, your client hasn’t arrived yet’.

Education, education, education

His post, he suggests, combines three functions: a deanery role, covering education and training, scholarships and the library; property management for the estate; and a general ambassadorial role.

Education and training is at the heart of what the Inn does. Expanding that, suggests Maddams, will ensure it retains its relevance. At present, that training function focuses mainly on students, pupils and new practitioners. Maddams would like to see more done for established practitioners. ‘For six years I was on the board of the Royal Institute of British Architects. It delivers 90% of all the CPD that architects do.’

More widely, he would like the four Inns to play a greater role in legal education and is a big fan of the proposal that they jointly provide a two-stage bar course through the Inns of Court College of Advocacy.

Until 1997 the Inns of Court School of Law (ICSL) held the monopoly on barrister training, before it was taken over by City University and the market opened up to other providers.

‘I get the sense from reading back through old minutes that the Inns were glad to get rid of it. They weren’t making any money out of it, it needed a lot of governance, and it was being criticised for being a monopoly,’ he reflects.

But times have changed. Growing concern over the high cost of the bar professional training course and dissatisfaction with its delivery, coupled with the regulator’s desire for alternative ‘pathways’ to becoming a barrister, have perhaps provided an opportune moment for the Inns to step back into the classroom.

IMG_1052 (1)Project Pegasus

Inner Temple has planning permission and money in the bank for a £23 million development of its Treasury Building to provide a state-of-the art education and training facility, which could be used to provide its quarter share of the proposed new bar course.

But Project Pegasus is not without controversy, as the stonking new space would, according to its opponents, ‘devastate’ the Inn’s historic library.

It is up to the benchers to vote on whether the build goes ahead. While Maddams would have liked it to have been completed by now, he respects the self-governing nature of the Inn.

A traditionalist, but also a realist who understands the need to move with the times, Maddams believes the four Inns should retain the statutory responsibility for calling people to the bar, stating ‘I haven’t seen any other model anywhere around the world that does it better.’

But he is emphatic that the dining requirement for aspiring barristers should be scrapped. ‘Dining has had its day,’ he asserts, proudly noting how Inner Temple has lead the may in combining the current dining or qualifying sessions with other training, in line with the BSB’s requirement that all qualifying sessions must be ‘outcomes focused’.

The Inn, he states, is ‘not a dining club’ – rather it is there to provide education, training and outreach. But, he adds, students can and do attend voluntary dining sessions.

Moving with the times

He accepts that the modern legal world, where technology allows barristers to work from home more often, means that some of the Inn’s collegiate services will become less relevant – already fewer people are driving into the Temple or lunching in hall.

The art, he says, is to replace them with services that are relevant – and online learning is at the top of his list. ‘The big opportunity is to re-engage in postgraduate legal education. You’ve just got to scratch the surface to see where that might lead – degree-awarding powers, our own professorial chair with a law faculty, international outreach.’

With a keen eye to where the Inn could help out, he moots offering training for magistrates or people preparing for the British citizenship test.

‘Brexit has brought into focus how little we know about our own constitution,’ he adds, spotting another role for the Inn with the proposal for a new court complex off Fleet Street. ‘There is talk of a constitutional learning centre on the ground floor of the building for kids and the general public. I have told Greg that we must be associated with that.’

Ensuring that the Inn is a welcoming place for its diverse student and practitioner members, Maddams is proud to reveal that it will become the first of the four Inns to fly the rainbow flag during this year’s Pride in London festival.

The great estate

Wearing his estate manager’s hat, Maddams is in charge of the land and buildings that make up the Inner Temple, including the Medieval Temple Church, which are all within a conservation area. It’s a big job, but he is happy to do it, not least because the rents fund 80% of the Inn’s annual expenditure.

A few years back, the Inn sold the building that is now the Apex Temple Court Hotel, after it was vacated by a large international law firm. ‘We originally planned to convert it into a modern type of barristers’ chambers. But the bar was going through one of its periods of doubt and we were finding it difficult to get pre-lets from the big commercial sets.

‘We were not prepared to take the risk of redeveloping the building if, at the end of it, we didn’t have any tenants.’

Among the alternatives that did not get off the ground were an education and training centre, an international arbitration suit and a children’s nursery.

Ultimately the Inn sold a long lease, by happy coincidence, for a sum broadly equivalent to the amount needed for Project Pegasus. Retaining the freehold, it receives a ground rent, which funds one third of its scholarships. ‘I don’t regret selling it. It was a commercial deal and it wasn’t a building that was part of the conservation estate,’ he states.

Bad press

The Inn got some ‘bad press’ in 2013, he admits, when leading criminal set 6 Kings Bench Walk upped sticks to Cannon Street. ‘They [the press] said we were putting the rents up too high for the criminal bar, which was under the cosh.’

He counters that assertion, stating: ‘We sorely wanted them to stay, as did a number of the senior members of chambers. But, the younger ones wanted to buy somewhere as a self-invested pension plan.

‘And as soon as they left, we almost had to have an auction because so many people wanted to take it.’

He is pleased to report that the Inn remains home to criminal sets and the Temple Legal Centre provides pro bono advice from the Treasury Building. ‘At the moment we’re full, so I don’t think our rents can be too exorbitant. But we watch it carefully,’ he adds.

His home is in Chichester, but the sub-treasurer also gets a flat on site. The ‘technical reason’ for this, he explains, is due to the Inn’s residual local authority responsibilities, from the days when it was its own local authority.

Part of that residual function requires him to respond to freedom of information requests, which over the years have included queries about how the Inn regulates milk powder products, scholarship interviews and recycling.

From Da Vinci to Magna Carta

The year he arrived, 2005, Hollywood descended on the Temple to film the Da Vinci Code. ‘The link between the Temple Church and secret of the Da Vinci Code is tenuous at best, if you believe the story, but we flogged it for all it was worth.’

Among much jollity, one of the highlights of his tenure was the yearlong festival of events marking the 800th anniversary of Magna Carta, which was negotiated in the Temple Church. That celebration included an open weekend attended by 25,000, who took part in mock courts and children’s trials. ‘For us to have a project that engaged every part of the Inner Temple was very satisfying.’

Not its finest hour

The Inn has close relationships with India – boasting Ghandi, Nerhu and Jinnah as members – and it marked last year’s anniversary of its independence from Britain. During one of its least fine hours, Inner Temple expelled Gandhi in 1922, reinstating him only posthumously in 1988.

In 1909 it had previously disbarred Shyamji Krishna Varma, who in 1884 was the first Indian to be called to the bar. He was kicked out for supporting Indian independence and writing to The Times arguing for home rule.

Varma was not reinstated until 2015, when India’s prime minister, Narendra Modi, came to the UK on a three-day state visit today. Keen not to upset any trade deals, the Foreign Office got in touch with the Inn to see what could be done to repair his status.

Proudly independent from all branches of the government, the Inn was reluctant to follow orders, yet realised that Varma had been wronged, and found its own reasons to reinstate him. Maddams dutifully trooped off to be photographed handing Varma’s readmission papers to Modi.

What next?

‘I’m making my first ever trip to Australia on the first ever non-stop flight from London to Australia. I’ll spend three weeks there and go to the Commonwealth Games,’ says an excited sub-treasurer.

On his return, he will join the board of governors of Chichester University and is looking at a couple of consultancies. He will not be leaving the law behind and has plans to do a masters degree by dissertation on the development of the common law in Malaysia, Ghana and Barbados.

Concluding: ‘I was thrilled and honoured to be elected an honorary bencher, so I can come back here. But I have promised Greg not to be a shadow.’

Legal Hackette meets barrister turned crime novelist Tony Kent

Reversing the tale of the Daily Planet reporter Clark Kent donning a red cape to become Superman, the criminal barrister Tony Wyatt shed his black gown to become the author Tony Kent, even adopting his comic book hero’s surname. 

Screen Shot 2018-03-25 at 19.51.34His first novel, Killer Intent, which hit bookstores last month, spins a punchy yarn about an assassination attempt that brings together three strangers. One of its central characters, the Irish-born criminal law barrister Michael Devlin, who comes from a family of villains, bears a passing similarity to the author.

Kent, who grew up on a council estate in west London, came from an Irish family of builders some of whom, including his older brother, found themselves on the wrong side of the law. His mother was one of 17 and he has more than 100 first cousins.

“Statistically, you are going to have some who don’t go the right way,” he says.

It was during one of his brother’s skirmishes with the law that our hero, aged 14, first dreamt of life at the Bar. Captivated by his brother’s barrister, Selwyn Shapiro, Wyatt recalls: “About an hour in, I completely forgot my brother was on trial. I said to my mum, that’s what I want to do for a living.”

262bc4ce-f2ad-4c32-b31d-87df686c5830But Kent was expected to follow his father into the building trade. “My mum used to say to me, ‘that’s a nice thing to want to be, but don’t tell anybody because they’ll laugh at you’.”

An infrequent school-attender, accompanying his father on building jobs instead, Wyatt breezed through his GCSEs and A-levels and his mother finally conceded that law might be an option.

Not having applied for university, Kent got a place in clearing to study law at Dundee University, picked because its boxing club featured in its prospective (Kent is also a champion amateur boxer).

Armed with an upper-second degree, he set off to the Inns of Court School of Law. Unimpressed, he stopped attending at Christmas, preferring to teach himself from the books and work with his father to pay the £12,500 fees for the course he was not attending.

Given his way, Kent would scrap the current system of legal education, ditching the Bar course in favour of advocacy taught by practising barristers at the four Inns of Court and extending pupillage to two years.

“Bar school was absolute rubbish – it’s an excuse to take your money,” he says, pointing to the numbers of people enrolled who have no chance of becoming a barrister, many of whom, he observes, cannot speak English.

“It’s like a one-legged man hoping to play for Manchester United. I’m sorry, but you need two legs to play for Manchester United, and you need to speak English to be a barrister. I’m all for increased diversity, but you can’t do that to the detriment of something that is fundamental to the job.”

The Bar has done well at increasing diversity, he says. “I had a chip on my shoulder because I’d come from a council state.” Thinking he would have to make himself fit in, he changed his speaking voice from “sounding like a refugee from Albert Square” to more received pronunciation — something he now feels he need not have done.

“I was expecting to be the token common person up against all these Oxbridge snobs. But I couldn’t have been more wrong.”

While there were plenty of Oxbridge types at the 2 Bedford Row set in London where he was a tenant for 12 years, Kent found a mixed crowd. “One QC was the son of a scrap metal dealer, the head of chambers [William Clegg, QC] was the son of flower-sellers from Southend, my pupil master came from a council estate in Essex, and another member had been the local beat officer on my Northolt estate.”

But he warns that the Bar is being forced to take a “massive backwards step” because of the expense of training and legal aid cuts. Someone from his background, he says emphatically, would not be able to make it at the criminal Bar today.

“You’ll get into chambers but you can’t survive. The fees have been hugely reduced and a lot of the junior Bar’s work is being done by solicitor-advocates, who are forced to do it to survive because of the decimation of legal aid.

“What they’ve done to legal aid for solicitors is far worse than what they’ve done to the Bar,” he adds, pointing to the recent cuts to the litigators’ graduated fee scheme, which cut the fees for the bigger cases on which firms had relied to make their money by 40 per cent. “On all other cases, solicitors were already working at a loss.”

The only way for criminal law solicitors to survive is to do private work, he says. “The reality is that you can no longer give the standard of service needed on legal aid rates.” He adds that solicitors are telling their clients the limits of what they can do for them unless they pay privately.

“What the government can’t keep doing is relying upon the professionalism and pure moral outrage of the criminal Bar to keep doing a job we are not being paid for. The time has got to come when we say enough is enough.”

Kent is surprised that the recent scandal over police disclosure failures have not been a watershed moment, with the profession finally winning the public’s support for its cause. The problem in seeking to win hearts and minds for legal aid is that the public believes they will never find themselves wrongly accused of a crime and will never need it, he says.

But the failings that are “happening every week, and not just in sex cases, were our opportunity to say that it can happen to you — it can happen to anyone”.

Part of the problem is that the Bar puts forward wealthy white QCs as its spokespeople, he says. “They are not the most representative of the profession. It needs to put younger people at the coal face, in the media spotlight.”

Kent splits his time between writing and the criminal Bar. He practises at his own chambers, Christian-Wyatt Law, which shares premises in Storey’s Gate, Westminster, with the law firm Ewing Law, where he is associate counsel.

Specialising in serious crime, Kent has worked on some of the biggest fraud and drug cases. But his most famous client is the boxing heavyweight champion Anthony Joshua. Jeopardising his dream of competing in the London 2012 Olympics, Joshua was arrested for possessing and dealing cannabis in 2011.

“It’s always reported in the papers that he [Joshua] has a conviction for drug dealing, but he bloody doesn’t, because I got him off that,” Kent says. Joshua pleaded guilty to personal possession and was acquitted of supplying drugs, Kent helped him get his boxing licence back and, he says, “the rest is history”. Kent’s reward is ringside seats at his former client’s big matches.

His novel, Killer Intent, was a long time in the making. Kent had the idea as he was off to Bar school. A mate was amused by the fact that someone from a family of villains was going to become a barrister. “My first thought was ‘rude bastard’, but my second was ‘that’s a great idea for a book’.”

He penned the first four chapters just before starting pupillage and went back to it ten years later when he found himself tail-end Charlie in a long-running case at the Old Bailey.

Kent likes to appropriate real people’s names for his characters, with two of the main characters in Killer Intent named after his grandfather and great uncle.

He is now polishing off his second book, written while doing a case in Bristol. “If anyone in that trial reads it, they’ll recognise the name of every single barrister in that trial,” he laughs.

While he may not excel at inventing names, Kent has many more book plots in his head. But he plans to carry on at the criminal Bar “if it remains viable”.

* This interview was first published in The Brief from The Times law. Sign up here for more legal news.

Stories of the Law and How It’s Broken – by The Secret Barrister

7f8849bc-20ef-4018-8d85-624f3d39f893“The system is f***ed and nobody gives a s***” might be the tweet that sums up the Secret Barrister’s (SB) 343-page indictment on the damage wrought to the criminal justice system by successive penny-pinching governments.

The anonymous barrister, who since 2015 has in equal measure informed and entertained its almost 88,000 followers, has taken things a stage further, penning the much anticipated Stories of the Law and How It’s Broken, which hit all good book stores this week.

With clarity and eloquence the 12 angry, passionate, frustrated chapters shout their unanimous and damning verdict on a system “close to breaking point”.

The author lays bare the result of the wrong-headed, short-sighted, politically expedient and dishonest drive to prosecute and defend on the cheap, warning that “we are moving from a criminal justice system to simply a criminal system”.

The book recounts everyday tales of injustice and a “culture of error” arising from avoidable failings by the underfunded and understaffed police and prosecution services, allowing “provably guilty people” to walk free.

The “current state of our criminal justice system should terrify us” the author writes, whose raging against the machine is equalled only by astonishment at the “wall of silence” and “collective indifference” of the public to the parlous state of affairs.

“What astounds me most is that people don’t seem to care. Or even know… If the criminal justice system were the NHS, it would never be off the front page.”

A working criminal justice system is “essential to the peaceable democratic society”, serving to “protect the innocent, protect the public and protect the integrity, decency and humanity of our society”, the author writes. “This should be a societal baseline. Not a luxury.”

SB laments that the public do not feel invested in the system because they believe it does not directly affect them, luxuriating in the misplaced confidence that they will never be wrongly accused of a crime.

To reinforce the contention that anyone, even the author’s readers, could find themselves arrested, charged, wrongly convicted and imprisoned, with the consequent losses of job, relationships, reputation and freedom, the writer invents an injustice that befalls a fictional doctor. This seemed unnecessary and risks undermining the book’s central thesis if a real life example could not have been extracted from the barrister’s decade in practice.

For the public’s complacency, SB partly blames the criminal Bar itself, accepting that “for professional advocates, we do a strikingly bad job of explaining what we do or why it matters”.

Through a mixture of history, practice and anecdote, SB provides a whistle-stop guide to why the system is how is, including a comparison with the inquisitorial alternative to our adversarial system – concluding that the latter trumps the former because the state alone is not always competent or honest and cannot be trusted to find the truth.

But some of the most damning and deliciously scathing prose is reserved for the chapter comparing jury trials with the cheaper “pantomime” justice dispensed to 94 per cent of defendants by the “socially, culturally and ethnically homogenous” and “pro-prosecution” magistracy.

The inexcusable “bargain basement retail model of justice” is condemned as “roulette framed as justice” where decisions are “inconsistent, irrational and, at times, plainly unlawful”.

We are reminded that the still mainly white, middle-aged and middle class body was dominated by freemasons until the 1990s, and the “jolly, willing amateurs” of today are compared to the “admissions board of a 1980s country club” who are “lording it over” young, working class and ethnic minority defendants.

The “sinister pincer” of legal aid cuts, forcing many quality barristers and solicitors to quit and making room for shonky practitioners who care nothing for their clients or justice, is condemned as unnecessary. While the oft-peddled myth used by governments to justify the slashing, that “we have the most expensive legal aid system in the world”, is well and truly busted.

SB shines a light on the unfairness of what it terms the “innocence tax” — under which acquitted defendants, forced through their ineligibility for legal aid, to instruct lawyers privately are permitted only to reclaim their expenses from the state at the much lower legal aid rates.

In contrast, the writer highlights the “final desultory boot in the genitals of justice” (my favourite phrase in the book) – which permits those who have put others to the expense of defending failed private prosecutions to reclaim the cost of doing so at virtually whatever amount.

There is high praise for those committed and hard-pressed criminal solicitors, whose dedicated work keeps “the prosecution honest” and decreases the chances of the innocent being convicted. But with that comes the warning that their job “is increasingly under peril”.

At risk of advancing what the writer accepts “may look like the most unattractive special pleading in pinstripes”, the trials and tribulations of the criminal barrister — long hours, pay sometimes below the minimum wage, lugging bags across the country and a diary subject to change at a judge’s command — are set out.

The identity of the Secret Barrister remains, well … a secret. We are told it is because writing anonymously “brings the freedom to be candid”. Given the stinging content of some of the chapters, it seems likely that the fear of losing instructions from the Crown Prosecution Service or exposing clients to wrathful magistrates are also strong incentives.

We do learn that SB is, by the author’s own admission, a modest, “not particularly special,” jobbing barrister, prone to “imposter syndrome”, who was called about ten years ago.

Despite what is “in many ways an intolerable existence” SB loves the “irresistibly special” job that provides “reward for the soul if not the purse”, and amid the “counsel of despair” clings to the “naïve, hopeless hope” that things might get better.

Nothing in the book will come as news to anyone who has had even remote contact with the broken criminal justice system.

SB’s challenge is to spread the word beyond the echo chamber of the adoring legal twitterati — the book certainly deserves a wider audience. But as the author might readily acknowledge, public indifference means it is unlikely to get what it deserves.

* A shorter version of this review was first published by The Brief from The Times law. For more legal news and comment sign up here.