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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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.’

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.

Legal Hackette Lunches with Nemone Lethbridge

Screen Shot 2018-03-04 at 23.40.33Over hot and sour tom karr soup and mussels, washed down with an Abstinence on the Beach mocktail at Yum Yums on Stoke Newington High Street, barrister and writer Nemone Lethbridge discusses sexism at the bar in the 1950s, her expulsion from chambers after her marriage to a convicted murderer was made public, and what it is like to go from ‘outlaw to feminist icon’.

Now 85, Lethbridge is enjoying a renewed blush of fame after the story of her extraordinary life and career was rediscovered.

Born in 1932, was sent to board at a convent school in Chew Magna, Somerset at the age of eight. The young Lethbridge ‘fell in love with it’ and, contrary to the agnostic teaching of her parents, found faith – something that has played an important life ever since.

In deference to her mother, she promised not to be received into the church until she had finished university, and when she finally became a Catholic, her mother told her she had ‘betrayed everything that the family stood for’ by going back to a ‘primitive, barbaric religion.’

Undergraduate days

As a young woman, Lethbridge was very political. ‘I wanted to go into politics,’ she says, and a law degree seemed a good way in. A liberal by persuasion, she is a card-carrying member of the Liberal Democrat party. ‘I’ve always been in the minority,’ she says, and hopes their fortunes will turn around.

‘I’m not impressed by anybody else. I like Jeremy Corbyn — I think he’s a very honest man, but I can’t see him as a prime minister.’

Following school, Lethbridge believed there were only two universities – Oxford and Cambridge. She picked for the former, and in 1952 went up to Somerville College to read law.

One of only two women studying law, she found there was no law tutor at her college and the pair were drafted out to Keeble College to be taught by ‘Davage’s father’.

‘The law tutor there didn’t have a Christian name. His son was a distinguished rowing blue and he was known as Davage’s father,’ she explains.

Whatever his name was, he did not think much of his two female charges. ‘He told us neither of us was clever and that the idea of going to the bar was laughable. But he said “It doesn’t matter, as both of you will commit matrimony”.’

The law degree itself was not of much practical use in the modern world, she recalls: ‘The first year was Roman law, done in Latin. I can tell you how to manumit a slave. The second year was largely mediaeval land law done in Norman French.’

Pupillage through nepotism

Still intent on going into politics, she did the bar exam and ‘through sheer nepotism’ got pupillage with Mervyn Griffith-Jones, of Lady Chatterly fame. Prosecuting in the 1950 obscenity trial, he had asked the jury the now infamous question on whether it were a book they would wish their wife or servants to read.

‘I don’t know why he said that foolish thing, which is the only thing people remember about him. It is so unfair because he was a nice man and a very good prosecutor,’ says Lethbridge.

Lethbridge got the position through her father’s connection to David Maxwell Fyfe, the first Earl of Kilmuir, who had been one of the prosecutors at the Nurmeburg trials after the war. ‘My father was the Chief of Intelligence for the British Army of the Rhine and had worked very closely with the Nuremberg team.’

While Griffith-Jones was always courteous, Lethrbidge notes that he was ‘highly embarrassed by having a woman trailing around after him’. Her arrival did not impress his clerk, Henry Twelvetree, who told Griffith Jones: ‘This is a royal command. Regard it as an experiment which need never be repeated.’ While the junior clerk was dispatched to acquire nail varnish remover to remove Lethbridge’s nail polish.

In at the deep end

Back then, pupils were on their feet from day one, and Lethbridge was thrown in at the deep end. ‘My first case was defending a man charged with arson, at the Old Bailey, before the terrifying recorder, Sir Gerald Dodson.

‘Unsurprisingly, my chap was convicted and he gave him seven years – a bit of a shock in one’s first case.’

Then, it was off for her second six to 3 Pump Court, where she found a ‘much more relaxed and tolerant’ atmosphere. ‘Rose Heilbron was already there and had broken the glass ceiling,’ says Lethbridge.

Heilbron was the first woman to lead in a murder case, the first female recorder, the first woman judge to sit at the Old Bailey, and the second woman to be appointed a High Court judge. She was, recalls Lethbridge, a ‘remarkable woman — very nice, very unspoilt’.

But, she adds: ‘People were awful about her. I think it was jealousy — she was very able, very successful and very beautiful.

‘They said she only got her work because the men were all away at the war and that she pinched the men’s work. And people would say disparagingly “look at her solicitors”.’

Heilbron faced three-fold prejudice, says Lethbridge — ‘against a woman, who came from the provinces (she was a Liverpool girl). And I’m afraid there was also a strong streak of antisemitism’.

Lethbridge commends Heilbron’s response: ‘She was very sensible – she wasn’t bitter – she just got on with it and did very well.’

Another one of the handful of female barristers in London at the time, recalls Lethbridge, was Jean Southwell. ‘She was at 6KBW. She’d been in the Wrens and had worked at Bletchley Park. She was taken on as a pupil by Christmas Humphries. He realised he’d got a treasure and didn’t let her go.

‘She was a very clever, very able woman, who’s never had the recognition she deserved – people don’t remember her, which is crazy,’ laments Lethbridge.

Lethbridge’s pupil master at Pump Court, was Norman Broderick, whom she describes as ‘an absolute sweetheart’. He practiced family law and medical negligence. Having witnessed a defended divorces, which were common at the time, Lethbridge determined not to do family law. That experience also convinced her, despite her faith, of the need for divorce reform.

Barred from the facilities

In 1957, when most sets still refused to admit women or black people, Lethbridge was taken on as a tenant at Hare Court. The first woman there, she had a frosty reception. ‘I was barred from using the facilities,’ she says, recalling that a Yale lock had been installed on the lavatory and each male member had been given a key, while she was instructed to use the Kardomah coffee house on Fleet Street.

‘I wasn’t allowed any work … not even traffic cases,’ she adds, explaining that in the days before the Crown Prosecution Service, chambers depended on work provided by the Scotland Yard solicitor, who did not like women and would not brief them.

‘I had to find my own work,’ she recalls breezily. This she did, either by way of the dock brief or by finding favour with the wine waiter in the bar mess on the Western circuit, who had the gift of patronage over prosecution work. ‘Briefs were handed at the beginning of dinner,’ she recalls, ‘hence the term “the soup list”, still used today’.

Screen Shot 2018-02-13 at 12.13.44Lethbridge and the Krays

Lethbridge got a break, when the senior partner at Lincoln & Lincoln, who was an orthodox Jew, required an ‘available gentile who was happy to go to court on Saturdays’.

It was those Saturday morning courts that Lethbridge first came to act for a couple of East End villains, who found themselves regularly nicked by ‘ambitious young policemen’ under the old ‘sus laws’, under which police could arrest anyone loitering with intent under the Vagrancy Act 1824.

That pair of crooks were the now infamous Kray twins, whom she represented until she forced to leave the bar in 1961, and whom she recalls as being much smaller fry than their reputation now suggests, but ‘very polite’. Her husband Jimmy was none too impressed with them either – asked once by Lethbridge what he made of them, he replied simply ‘fucking cheap suits’.

Marriage to a convict

Lethbridge had met her husband, Jimmy ‘Ginger’ O’Connor, at the Star Tavern in Belgravia. The pair had been introduced by a member of her chambers, Sir Lionel Thompson, known as the Bad Baronet — ‘He was one of the few men who weren’t embarrassed to be seen with me,’ she recalls.

From a vastly different background to Lethbridge, O’Conner grew up in grinding poverty and had been a petty criminal.

In 1942, when Lethdridge was nine years old, he was arrested for the murder of George Ambridge in April the previous year. Another crook gave evidence that O’Conner had sold him the victim’s gold watch, telling him that it had come from a ‘robbery that went wrong’.

In spite of questionable evidence, O’Connor was convicted and, in the Old Bailey’s court number 1, sentenced to be hanged. The date of execution was set for his own birthday.

After an intervention from one of the police officers, the home secretary, Herbert Morrison, commuted the death sentence and O’Connor served 11 years of a life sentence.

Lethbridge and O’Conner had married in secret in Ireland in 1962, so there would no record of their union at Somerset House. Her chambers knew of the relationship and turned a blind eye, until it was exposed, following a piece in The Telegraph about her sister’s wedding.

The wilderness years

To spare her mother the embarrassment of the publicity, Lethbridge took her abroad for six weeks. ‘It was at the time of the Bay of Pigs, when we got back, we saw the world had nearly come to end,’ she recalls. And on their return to London, Lethbridge’s former life came to an end too.

Her head of chambers had sent a letter stating: ‘For reasons that you’ll appreciate … I can no longer accept your rent as a member of chambers.’ So, in 1961 she was cast out of the profession she had loved so much – and to which she did not return for almost 20 years.

O’Connor, who had done a writing course with Ruskin University while in prison, had become a writer for television and radio, and Lethbridge turned her hand to writing too. The pair lived for a time on Greece before returning to London and had two sons.

Lethbridge made a couple of attempts to return to the law, and at one stage had her name removed from the barrister’s roll, and signed up to become a solicitor. But, she changed her mind after seeing the solicitors’ accounting exams.

Back to the bar

Then in 1981, she was invited to join the chambers of Louis de Pinna on Chancery Lane. He was, recalls Lethbridge, ‘an old school Liberal of independent mind and without prejudices’ who had taken on black tenants. ‘Braver still,’ she adds, ‘he took on me, despite my years in the wilderness’.

Lethbridge was astonished how much the bar had changed during her absence. ‘There were women and black and Asian faces everywhere. The judges were courteous to women and there were women on the bench.’

Describing herself as a feminist, Lethbridge is against positive discrimination to bring about gender equality on the bench. “Some appointments were made in the Callaghan days, as a result of positive discrimination that set women back,’ she explains – and recounts one female judge who would weep openly on the bench and another whose pompous manner out-pomped the men.

The appointment of Lady Hale as president of the Supreme Court, she says, is ‘absolutely brilliant’. Hale, she says, is ‘so good and a normal, modest woman who is comfortable in her skin’.

Lethbridge’s advice to women looking to go to the bar now: ‘Be yourself – don’t feel you have to behave like a man – and have a rich daddy,’ she adds, dismayed by the cost of legal education.

No call for Latin

The continuing cuts to legal aid also causes her much consternation. So outraged was she when the government started its assault on public funding in 1995, that she set up a law centre – Our Lady of Good Counsel Law Centre – in Stoke Newington, with family barrister Mark Twomey QC.

Her priest had asked for people to share their skills in the community. ‘I initially offered to teach Latin, but the priest didn’t think they’d be much call for that in Stoke Newington,’ she recalls. And so, she hit on the law centre idea, which is still open every Saturday, helping more people than ever, and at which Lethbridge can still be found.

During her time at the bar, Lethbridge appeared in the courtroom where her husband had, years before, been sentenced to death. While in court, she says she thought of his ordeal often. ‘I just thought it was so unfair and wanted to clear his name’ – something she is still trying to do.

From outlaw to feminist icon

downloadLethbridge’s story was rediscovered after barrister Katie Gollop QC bought an old scrapbook that contained newspaper clippings about her. Her appearance last year at the Spark 100 conference, organised by the First 100 Years project, sparked media interest at home and abroad. Her cousin, she says, commented on how she had gone ‘from outlaw to feminist icon’.

On being a legal celeb after all this time, Lethbridge says: ‘I think it’s quite funny. It’s bizarre. I’m having a wonderful time. I’ve sort of come back to life.’ Adding: ‘I never actually went away’.

Too polite to call them two-faced hypocrites, Lethbridge finds it ‘hilarious’ that ‘people who wouldn’t speak to me for 20 years are now trying to be friends. I think it’s quite funny; It’s quite sad. I’m the same person; nothing has changed as far as I’m concerned,’ she smiles.

Despite the way she was treated by the bar, Lethbridge harbours no bitterness. ‘I was angry, but if you let yourself become bitter, you destroy yourself.’

Lethbridge’s life has been too eventful to do it justice over one short lunch. Thankfully, she is penning her memoirs, so her full story will be aired, providing she can follow her publisher’s instructions and write more about herself and less about her husband. It is bound to be a fabulous read.

Legal Hackette Lunches with Sir Oliver Popplewell

Sir_Oliver_PopplewellOver butterfly prawns and stir fried duck at Fleet Street’s Wig & Pen, the former High Court judge who presided over the Jonathan Aitken and Mohammed Fayed libel actions, talks about the Aphrodisiac of Power, judicial appointments, being a mature student, and that ‘lunchbox’ question.

Sir Oliver Bury Popplewell, the son of a civil servant, was educated at Charterhouse School and Queen’s College, Cambridge. Called to the Bar in 1951, he took silk in 1969 and served as a High Court judge from 1983 to 2003, taking charge of the defamation list.

A nifty right-handed batsman and former president of the MCC, he remains a member of London’s Brick Court Chambers. He is a regular visitor to The Strand area of legal London, where his wife since 2008, Dame Elizabeth Gloster sits as a Court of Appeal judge. Law, it seems, runs in the family – his son Andrew is a High Court judge and his grandson fancies a career at the Bar.

He is the author of four books, two of which are about himself – Benchmark and Hallmark. ‘The great thing about writing an autobiography is that you can write what you like,’ he quips.

His most recent, The Aphrodisiac of Power, chronicles the affairs of a motley selection of politicians, media magnates and crooks, from Lloyd George and Edward VIII to Beaverbrook, Maundy Gregory and JFK. It looks at how they wield their power and how their hubris frequently leads to their downfall.

His inspiration for the book, which is cloaked in a bright red jacket, came from an article penned by Matthew Parris in The Spectator and David Owen’s book The Hubris Syndrome: Bush, Blair & the Intoxication of Power.

In The pathology of the politician, Parris wrote ‘power is indeed an aphrodisiac: but for the powerful, for the predator rather than his prey’.

Popplewell’s book, mostly about politicians and their mistresses, looks at where the power lay in their relationships and why men risked much for love.

He rejects the suggestion that High Court judges wield power. ‘They just try to decide things as best they can in accordance with the law,’ he says.

To my enquiry about who was the predator and who the prey when it came to his relationship with his now wife, who famously left her QC husband of 30 years, Stanley Brodie, for Popplewell, he replies with a smile: ‘I always say she chased me, but I think it was mutual’.

Contrasting his entry to the Bar with today’s competitive entry process, he says: ‘You could get into chambers, but there wasn’t any work, so we sat about earning two guineas a week.

‘You didn’t get paid on time either. When I became a judge I had fees out-standing from about 30 or 40 years earlier’.

‘I started very slowly at the Bar and never had a very big practice,’ he states – his work was mostly personal injury and general practice on circuit, something he enjoyed. ‘One became the barrister to certain solicitors on circuit. In those days it was good fun – the Oxford circuit was small and everyone knew each other’.

Now, he says: ‘The Bar is rather sad in many ways. The criminal Bar has really suffered, as have other areas of publicly funded law, as a result of the reduction in legal aid and so there isn’t so much work around.”

Nonetheless, he recommends it as a career, having never wanted to do anything else: ‘You’ve got to be lucky and you’ve got to be determined. When you win a case it’s marvellous and when you lose, it’s terrible’.

He and his first wife Margaret, who died in 2001, were chums with the parents of comedian and author Stephen Fry. In 1975 he was a character witness for the young Fry, in defence of a charge of credit card fraud. And when Fry went awol during the West End production of Cell Mates, it was to the Popplewells’ Norfolk cottage that he fled.

On the Bench, he says: ‘I thoroughly enjoyed being a judge. At the Bar you got led by a whole lot of leaders who you didn’t think were any good, so eventually you took silk, and then you appeared in some cases where you didn’t think the judge was very good…. So you felt that you had to progress!’

Appointed long before the Judicial Appointments Commission came into being, he recounts his tap on the shoulder moment, which came following a building dispute that had gone all the way to the House of Lords.

‘When they came to give judgment, one of the Law Lords repeated my written submissions. The next thing I found was a message in my chambers’ cubby hole that the Lord Chancellor’s office had been trying to get hold of me.

‘I’d been on circuit and got back to chambers on Friday. I rang his clerk, who asked if I could go down that afternoon. I had no idea what was in the wind, so I said “actually I’ve got a chambers party at 4 o’clock”.’

The clerk suggested he attend before the party, which he duly did. Much to his surprise he was offered an appointment to the High Court bench. He recalls: ‘Quintin Hogg said “I don’t know anything about you, but you’ve got good reports. When can you start? Have you outstanding work?”

‘I said “no”. He said “can you start on Monday?” to which Popplewell replied that he could.

‘That was just how it was done,’ he says – ‘Someone from the House of Lords had obviously recommended me’. And he reckons, it is not a bad way of doing things. ‘No system is perfect, but the view then was, if you had been at the Bar for 30 years, everyone knew you and knew if you would make a good judge or not’.

He is not a fan of the current process, which involves extensive written applications and interviews by a panel, including lay people. ‘It’s meant to be transparent, but the truth is nobody really knows why they don’t get appointed and rejection can be harder to face when you have wound yourself up to apply and gone through a tough interview process’.

The need for increasing diversity in the senior profession and on the Bench, he agrees is an issue that needs to be cracked. While he says there was, in the past, outright discrimination, he does not think that there is now.

Rather, he suggests: ‘The real problem for women is that if you have a family it’s very difficult to keep your practice going if you take extended periods of time off. You can delegate care of your children to others, if you can afford it, but if you’re away for five years, realistically you have to start all over again.’

For women looking to the Bench, the requirement to sit on circuit, he says may put off many able candidates because of family responsibilities. Turning to the vacancies at the High Court, he says the pool of sufficiently senior women, who actually choose to apply for appointment, appears to be small. “So there needs to be a real initiative to persuade women practitioners to consider the possibility of a judicial career and to apply.”

In any event, he adds the reduced pensions, as well as the application process, can put both sexes off applying.

‘I doubt whether I’d apply now. It’s meant to be secret, but if word got out that you’d applied – to be a QC who has failed to be appointed …’ he trails off at the fear of it.

One of the highlights of his career was presiding over Jonathan Aitken’s action against The Guardian and Granada TV. ‘I found it absolutely riveting. He was a very impressive figure. ‘I think, truth be told, he’d had a great row with the press. He’d been a stringer in Nigeria and was thought to have ratted on a story. Then, when in government, he arranged a great arms deal with the Saudis and was attacked by the press, The Guardian in particular, and I think he just got fed up’.

Aitken, then John Major’s Minister of State for Defence Procurement, had famously gone to Paris; he claimed it was to spend the weekend with his wife and daughter, not to meet business associates of the Saudi royal family to broker a dodgy arms deal.

Says Popplewell: ‘The Paris business was really stupid. Aitken had been to Paris for the weekend, it hadn’t gone in his diary. The Guardian asked what he’d been doing, he said something that turned out to be untrue and the pair pursued litigation by letter for about a year before the case. Aitken got more and more involved in fibs.

‘No one still quite knows what he was actually doing there’.

Popplewell was also the judge who presided over sprinter Linford Christie’s claim against John McVicar, the former armed robber turned journalist, over doping allegations. It was during that trial that he asked the question that has dogged him ever since: ‘What is Linford’s lunchbox?’

Putting his case, Popplewell says: ‘I’ve been rather unfairly pilloried. It was a jury trial in a libel action. The charge against him was that he was on drugs. In the middle of it, someone said it [Linford’s lunchbox] and the jury looked absolutely baffled.

‘So, I though somebody better say something and I asked what it meant — for the jury – I knew what it meant’.

No amount of telling he says, stops the references to it. ‘I’m sure when I die it will come out again’.

Controversy hit Popplewell in 2011 when in a letter to The Times newspaper he appeared to criticise the families of the Hillsbrough football stadium disaster calling on them to behave more like the relatives of he victims of the Bradford City disaster, the enquiry into which he had chaired.

Does he regret his words? ‘I’ve vowed I’m not mentioning Hillsbrough ever again. I won’t say anymore’.

On a more light-hearted note, Popplewell was involved in a case concerning a libel action brought by the wife of the Yorkshire Ripper, Sonia Sutcliffe, against satirical magazine Private Eye.

‘She was suing Private Eye for saying she knew about her husband’s activities. Before the trial, it published further articles repeating the allegation and adding others. The Attorney General thought it should be prosecuted for contempt of court’.

He continues: ‘Hislop came along with his backpack all packed with his pyjamas and toothbrush. I thought the whole thing was bloody nonsense. I refused to allow the prosecution to proceed. But the Crown went to the Court of Appeal, which said I had got it all wrong.

‘About once a year on Have I Got News For You, my name comes up and he [Hislop] says “that was a fine judgment”.’

In 2003, aged 76, Popplewell returned to the classroom as an undergraduate to read PPE at Harris Manchester college. ‘I was the oldest undergraduate at Oxford and caused a bit of stir’.

He was given no special favours and, like all other candidates, had to sit an entrance exam and undergo an ‘absolutely terrifying’ interview.

‘I shared a set of rooms with a nice chap – John White a retired senior partner from Cameron McKenna , who was a young 69-year-old’.

During the ‘three marvellous years’ he spent there, he was asked to stand in to cover some law lectures when the tutors went on strike ….but graciously declined.

Another time, he recalls: ‘I went to see the Principal, who was a bit older than my eldest son. He told me “the essence of this college is that we like to send our graduates out into the world to contribute to society”.

‘I told him “When I leave I’ll be 79 – I think I’ve made my contribution’.

Legal Hackette Lunches with Sir Paul Jenkins

VAOC0-i2_400x400Over fish and fizzy water at Lutyens on Fleet Street, the former Treasury Solicitor and head of the Government Legal Service, now at Matrix and soon to be patron of the Public Law Project and treasurer of Middle Temple, discusses his Brexit blues, prime ministers and his Leveson claim to fame, and defends control orders.

Sir Paul Jenkins was in sombre mood when I met him, minutes after Sir Tim Barrow had hand delivered Theresa May’s letter to Donald Tusk, firing the UK’s Brexit starting gun.

A consummate Europhile, as a schoolboy he belonged to the Young European League and since 2009 he has been in a civil partnership with a Dane – now one of Theresa May’s ‘bargaining chips,’ he notes.

Having worked at the heart of Brussels, he says: ‘I didn’t have to spend very long there before I slightly fell more in love with the project, because it just makes sense. It’s all terribly sad and a dreadful mistake.’

Jenkins joined the Government Legal Service in 1979 and for eight years, from 2006-14, was the most senior lawyer in Whitehall. Out of government, safely ensconced at London’s Matrix Chambers, his advice to Mrs May as she seeks to steer the UK through the choppy Brexit waters is to ‘start managing-down the expectations of her Euroscpetic right.’

‘If she doesn’t – and if she carries on allowing them to believe that we are going to leave the jurisdiction of the European Court of Justice (ECJ) totally and utterly, have tight controls on immigration, and have nothing to do with the customs union, we will get the hardest of hard Brexits — and that will be catastrophic.’

Still relatively new to the office of PM, he says, the party won’t want to kick her out yet, so she needs to start standing up to them.

Language

Watch out over the next year, he says, for a ‘softening of language’. Something he detected in the speech May gave to Parliament just after that letter was delivered. ‘Already she has started softening her language on the ECJ – very carefully. Instead of saying “we’re going to be out of the ECJ”, she said “we’re going to make sure the ECJ has no jurisdiction in Britain”.’

Her ‘carefully crafted words,’ he says, indicate that she sees the need to make the Euro-toxic right recognise that you cannot operate in a world of free trade or regulated trade without supranational courts, and the ECJ is going to be part of that.

Find an early compromise on the ‘bargaining chips’ and residence, and on the money, he suggests, predicting the UK will have to ‘pay quite a lot’ into the EU coffers before quitting.

‘It’s not just about [Nigel] Farage’s pension; there’s a lot of other stuff. There’s a lot of planed investment by the European Investment Bank into the UK. If we don’t pay our share, they can just say “why should you have the money?”’.

One of the difficulties, he says, is separating the ‘rhetoric and posturing’ from the reality. In the debate over the sum the UK will we’ll pay, different players, he says, are ‘just waving figures around’.

‘We go €5, they go €82 million – it’s just like any other negotiation, only it’s being conducted by megaphone’.

And if May refuses to cough up, while he says there is a ‘respectable argument’ that the EU may sue for some liabilities, he thinks it unlikely.

Timetable

Having pressed the Brexit button, there is a two-year deadline to agree an orderly exit. But, Jenkins points out, nothing much is going to happen before the French and German elections are out of the way. And then it seems to be accepted that there will be a six-month ratification process – by the British and European parliaments – which leaves about a year of ‘hard arguing in the middle’.

Explaining the process he says the two-year period will merely establish a framework, before the really hard stuff begins. Achieving a fully-formed, legally-binding articulation of our long-term relationship with the 27 states, he predicts, will take longer than two years.

And while so far there has been much talk about article 50, now comes article 218 – which, he explains, is the treaty provision that deals with agreements between the EU and third countries.

Using the clichéd analogy of a divorce, he states: ‘Article 50 is where you sort out who gets the house, who pays the maintenance and you get some fairly high level principles about what happens to the kids.

‘Article 218 is the really hard grind about which schools they go to, who has access this weekend, who has access the weekend after — the really difficult stuff.

‘If it is done as it’s done in the family court, you’d do it sequentially. But sequentially is a complete disaster for us, unless you get really good transition arrangements in the middle’.

He predicts that the other 27 are not going to give us a gentle ride from article 50 into the ‘new free world’. While the negotiations will be split into manageable chunks, all deals will stand or fall together.

And he points out it could all be scuppered over one issue, such as immigration, if May can’t rein in her right wing. ‘If we really annoy the Poles, Bulgarians and Romanians – three quite big players — and then Spain spots that it can join them and really cause trouble raising the issue of Gibraltar – they could bring the whole thing down’.

On whether no deal is better than a bad deal, he is emphatic: ‘No deal is absolutely catastrophic. No deal is at the end of two years you just fall out and you cease to be a party to every treaty including those with third countries.’

Provisions covering air travel are a useful example, he says: ‘If you fly to the States, you do so under the 2007 open skies agreement between the EU and the US. If we leave over the cliff edge with no deal, after two years and a day that treaty will cease to apply to the UK instantly. So they’ll be no legal basis for flying. Without a legal basis for flying, an airline would lose its insurance overnight’.

He predicts, with no degree of optimism: ‘The worst they will offer us is something that is better than no deal’.

Adding sadly: ‘One thing that people in this country really don’t get is how much idealism there is at the heart of the European project. So the idea that they’re going to be like us – looking for mucky compromises and economic deals, misses the point.

‘Our idealism is that we want to “take back control”. Their idealism is an ever-closer Europe’.

The hellish prospect of more litigation

The route to Brexit, he says, may go through a number of ‘hellish scenarios’ with further litigation by citizens and states.

‘The masters and mistresses of the art of negotiating compromise in Brussels may come up with a deal that looks quite good to everyone, except that it fudges the four freedoms so much that people who don’t like it go to Luxembourg with it, and suddenly you’ve got the court coming in and ruling on the vires of it’.

Or he, suggests there will be argument over the process for agreeing certain deals and whether an agreement is a ‘mixed’ agreement, and therefore requires national, as well as governmental agreement. ‘That’s when you get the Walloon-type issue,’ he says, adding: ‘Then, I suspect we’ll see the European Court at its most political because they’re not going to want to scupper this’.

The role of the civil service

While negotiations will be conducted on many levels, with some set-piece encounters with all the heads of government, much work will be done by the civil service, in London and Brussels.

The scale of their task, he says, is massive. ‘In my most hyperbolic moments, I’ve said it’s the biggest peacetime task facing the civil service in the history of the country’.

Three years out of the service, he remains a loyal fan and is confident that they are up to the task. Despite having shrunk under the austerity measures to its smallest since the second world war, Jenkins says the service is still large and has a huge amount of expertise, even in quite surprising subjects. ‘There’s a chap in the British civil service who has responsibility for bees,’ he says, by way of example.

‘And there’ll be the equivalent of that everywhere – real experts who will have been advising behind the scenes’.

So, on a positive note for lawyers who want to continue to practise on the continent, he reckons there will be someone in the Ministry of Justice who knows all about it, so while it won’t be high priority, it won’t be forgotten.

And he adds: ‘Lawyers are very good at special pleading – you don’t imagine that the European practitioners at Matrix and elsewhere are sitting there saying “oh dear, I wonder what’s going to become of us”. They will be raising the profile’.

But two areas concern him– the lack of expertise in trade negotiation and the capacity to carry out twin-track planning, preparing both for a successful deal and what to do if it all goes wrong. ‘They are two very different exercises and I’m not sure how you do them together’.

Strategically, he says, having Liam Fox, Boris Johnson and David Davis inside is very clever, though he fears all three underestimate the scale of the task ahead.

When Davis and Fox were appointed, he says, both believed that everything would be sorted after a short series of meetings and that the UK would get out with what it wanted because the Germans want to sell cars.

‘By all accounts Liam Fox still believes that and is therefore proving catastrophic. But, David Davies, everyone tells me, has been on an amazingly steep learning curve and gets more and more worried by the day. He gets it and knows exactly how complicated it is.’

And if it all starts to go really wrong and looks too much like a cosy deal, Jenkins is interested to see which of the three Brexiteers will go first. ‘If Johnson or Davis go that will be damaging, because they could be at the heart of a campaign against her [May] on the Tory benches. But I think most people regard Fox as expendable’.

In any event, he says it will take ten years before we have a clear idea of Britain’s place in the world. Some sort of deal will be done in two years, but it is the three to five years after 2019 that Jenkins says will be the ‘critical period in terms of forming our relationships with the EU and beginning to form our relationships with the rest of the world’.

And, he predicts, London will still be a ‘thriving, buzzing, great capital of the world’ – ‘it’s not just that it’s impossible to imagine it any other way; it’s inconceivable’. But, he says, a lot of the country will suffer.

However, there may possibly be an escape route. The process, he suggests, is not irrevocable and there is a case for leaving open the possibility of a second referendum if it’s all gone catastrophically wrong in two years. Though ‘we should never say never,’ he thinks the chances of a second referendum are unlikely.

And, he adds: ‘One of the things people underestimate is just how stubborn the Great British public is’ – a problem that he suggests Nicola Sturgeon is also up against in her quest for an Indy Ref 2. ‘There will be people who voted in favour of independence or against leaving the EU, but if you ask them again, even if it’s gone really badly, and you ask them again, they will say “go away, you asked me once, don’t ask me again”.’

Where does it leave the UK?

He is a ‘huge admirer’ of Sturgeon, whom he rates as a ‘far more cannier politician than Alex Salmond’. ‘If she’d have been in charge last time, they’d have won. If anyone can achieve an independence vote it will be her’.

But, he says, she has a difficult task. If she caves in to her hardcore wing and called a referendum now, he says, she would undoubtedly lose. And it is only Brexit that has given her the chance of another pop. ‘If they have a second referendum, they won’t have another, so she can’t afford to screw it up’.

While he says: ‘People will continue to neglect Northern Ireland – no one is terribly interested in it and it’s seen as a dysfunctional place’.

Although he predicts that once the demographic of the population alters, it will, in the lifetime of the younger generation, shift towards unification.

It was, he suggests, perfectly reasonable for Theresa May to fight the Brexit legal challenge. And, he notes, it filled time between the referendum and March, so gave the civil service, who had been forbidden from pre-referendum contingency planning, a bit of time to think.

‘One of the predictions I got right was that if Cameron lost, he’d go the next morning. But I assumed we’d have a Tory party election contest, which would go form June to the conference in October, during which time all civil service leave would be cancelled so they work out what to do’.

Does he wish he was part of it? ‘Absolutely not! If you’ve spent 35 years in and out of Brussels making it work, I can’t imagine being there now helping to pull it apart’.

The blame game

For all this mess, he lays the blame, as many others do, squarely at the feet of David Cameron, whom he nonetheless describes as the ‘best tactical prime minister I came across’.

‘If you were in a crisis and you need to get to the end of the week, he’d get you there. He was a safe pair of hands and was brilliant in parliament. But, if you tried to get him to think strategically about where something was going in six months or a year, he wasn’t interested’.

When it came to the referendum, he says Cameron acted with a ‘sort of arrogance’ and a ‘fairly typical, cavalier attitude’ believing everything would be fine.

‘I just don’t think it occurred to him that he was doing anything stupid. This was a way to shut the party up and we’ll be fine. And he got it wrong – massively’.

The behaviour, he suggests, epitomises the ‘failure of leadership’ in the Conservative party over recent years. ‘The last time we saw any serious leadership on this issue was with John Major, who many civil servants will tell you, and I’m one, was a much under-rated prime minister and one of the nicest people you could ever work for’.

Although, he says he does not know Theresa May very well, he says: ‘Her public image is very much what’s there. There a certain austerity and chilliness’.

One of the constant duties of his time as treasury solicitor, he recalls, was ‘ensuring that ministers stick within the rule of law’, though he fully accepts that they are entitled to push its edges and test the boundaries.

‘Both Dominic Grieve and I had terrible trouble with David Cameron, for example, on prisoner voting, where he was determined to push beyond what was permissible’.

But as home secretary, while Theresa May would ‘test you and test you and test you, when she was finally convinced that the law was what it was, she had absolutely no qualms about obeying it’.

Life as the Treasury Solicitor

Jenkins was treasury solicitor for eight years, serving under three prime ministers – Blair, Brown and Cameron.

‘I didn’t have much to do with Gordon Brown. We all used to have lots of contact with Blair and when Brown was made prime minister someone said to me “you’ll all start thinking you’re not getting as much access, and you’ll think that’s rather sad. But when you get access, you’ll realise you were quite lucky not having it”.’ Quickly adding that he never had any trouble with him.

Accepting that it is an ‘unfashionable view’, Blair, he says, was a ‘complete joy to work with’ and he would ‘work for him again tomorrow’.

‘Lots of civil servants still hark back to those days – he was clever, polite and focused, but made one mistake – and at the time most people didn’t think it was a mistake’.

He feels sorry for his former boss and the way the cloud of the Iraq war has hung over Blair, overshadowing his achievements and preventing him from playing a greater part in political life since leaving office. ‘Whatever the media was saying, he was one of the ones who wanted to get the [Chilcot] report out, because he knew that until then there was absolutely no chance of him moving on’.

Jenkins adds: ‘The way that he’s had to suffer since, and the way that the media has dealt with and continues to deal with Cherie is absolutely scandalous.’

The Leveson enquiry and the mediated settlement over claims brought by 12 British citizens detained at Guantanamo Bay, he reflects, are the defining moments of his time as Treasury Solicitor.

On the former, he recalls: ‘There was very little doubt that we had to set up the enquiry, because they’d hacked Milly Dowler’s ‘phone’.

But, he muses: ‘If David Cameron had known that Andy Coulson and Rebecca Brookes were having an affair, would he have set it up? I don’t know’.

While many journalists take a different view, Jenkins takes pride in what he describes as his ‘great claim to fame’ – he came up with the idea of a Royal Charter to set up a new press watchdog.

He recalls: ‘Cameron had said he’d implement Leveson if it wasn’t bonkers and didn’t require legislation’. While other lawyers suggested a statute would be required, Jenkins, who had been legal advisor to the Department of Culture Media and Sport in the 1990s when the Arts Council and Sports Council were set up by Royal Charter, suggested the same thing for press regulation.

On the Guantanamo claims, he recalls: ‘We wanted to try and draw a line under them. We thought we could probably defend them, but it would take ten years, cost a huge amount of money and, although we may have been able to win, we could have only done so by using intelligence material that would have damaged our relationship with the States. So we had to try and mediate’.

The lawyers went to Cameron and coalition deputy PM, Nick Clegg – the latter of whom Jenkins describes as ‘an awesome politician and a wonderful person’ – with a package for the mediation, an enquiry [the Gibson Report] into what went wrong and the introduction of secret courts, or closed material proceedings, by the Justice and Security Act 2013 — which they went along with.

‘Cameron and Clegg backing us on that was absolutely critical,’ he says, and while everyone thought the mediation would be the hardest part, it was concluded in two-and-a-half weeks.

‘Interestingly when one of the people who got compensation blew himself up in Iraq a couple of weeks ago, there was only a mild sort of media shit-storm. I had waited for this moment, thinking I’d be dragged in and there’d be a public enquiry. I was quite surprised how quickly it went away’.

One of his big achievements, he says, was bringing the fragmented government legal departments into a single organisation. ‘By the time I left it had around 1,500 fee earners, so it’s quite a big legal business.

‘The great thing about the job, is that if I was doing that in a magic circle, I’d be doing nothing else – I’d be the managing partner. Whereas with this 40% of my time was spent doing real work. I never had to let go of being a lawyer’.

Do ministers listen?

As you might expect, his answer to that is a big, fat ‘yes’. ‘Our job has always been to advise. One of the things you do as a lawyer in the civil service is try and deliver what politicians want – they are our political masters and mistresses and the elected representatives. If they want to do something, our job it to try and make it happen’.

Though, he says, that quite often they will want to achieve their aims in a way that does not work legally. ‘So part of the skill is to find innovative, imaginative ways of delivering what they want.

‘Good ministers will understand that and listen right from the start. Some just close their minds to it. In the end they suffer, because they end up not delivering what they want or what they could if they listened a bit more’.

When the government loses legal challenges, that is not, he says, a failure of the civil service. ‘It’s perfectly legitimate for government to test the law to its limits’.

For example, the government was right to test the law over control orders. ‘The government was perfectly entitled to establish where the high-watermark of the law was in relation to controlling suspected terrorists, who you can’t put through the normal justice processes.

‘We came out with what we thought we could do and the court said “no”. So gradually we got to the point where we had to give up on control orders and we came up with TPIMS – which never really worked.’

In defiance of critics, he adds: ‘I suppose this is controversial, but during those years what did the control orders do? Well they controlled actually – they worked – they may eventually have been found to be too severe, but for a long time they didn’t half work’.

He goes on: ‘The very hard-edged, campaigning lawyers think that’s an unacceptable approach, and that one has to be purer than pure about these issues. But you’ve got to have an element of pragmatism about this if you’re the government.

‘It’s easy for campaigning lawyers to say “This is outrageous” and for politicians to shout about it. But if you’re a government minister you’ve got a duty to try and do your best’.

Politics, he muses, is a ‘pretty unsatisfactory place to be’ and ‘very difficult’ for lawyers. ‘I’ve always said that lots of lawyers make really bad politicians, because lawyers are the epitome of normal logic and have the most rigorously logical minds.

‘Politicians have rigorously logical minds, it’s just that it’s political logic and that’s completely different to legal logic. What a politician thinks it logical, most normal people think it utterly irrational’.

On the subject of one lawyer turned politician, however is he effusive in his praise. Keir Starmer, whose time as DPP coincided for three years with Jenkins’ time at TSol, he says is ‘wonderful – absolutely one of the most decent, splendid human beings on this planet. He’s got amazing values and is a lovely person’.

While he does not want to give his political potential the kiss of the death, he reckons that the Labour party ‘could do a lot worse’ than have Starmer lead it.

Despite being so closely involved with politics for 35 years, Jenkins says he is not party political and belongs to no party. ‘One of the reasons I didn’t go into politics was that my political views are all over the place. And being a lawyer who likes logical thought, I’m not vey good at compromise, which most politicians are’.

Giving an indication of where he sits on the spectrum, he adds: ‘It is fairly rare to find a civil servant who’s far to the right of centre – it’s a sort of centre left profession’.

Life after TSol

‘It takes a while to get used to not being at the centre of things and not knowing what’s going on. But you get used to it,’ he says. When time away from advising on Brexit permits he does investigatory work from his base at Matrix.

Returning to the bar after an absence of 35 years has been an eye-opener. ‘It’s all so much more professional — you now do a lot of marketing and work with clients to help them understand what you’ve got to offer.

‘And that makes perfect sense, but 35 years ago you weren’t even allowed to have a drink with a solicitor. You certainly didn’t have a chambers party and, if you did, you wouldn’t invite solicitors’.

The son of two junior civil servants, Jenkins went to a state school – Harrow County School for Boys – and was the first member of his family to go to university. As a teenager he listened to the recreation of famous criminal trials on the radio and fancied a career at the bar.

At Manchester University, he found he did not enjoy much of his studies, but his legal aspirations were saved by one inspirational lecturer – Harry Street, famous as the author of one of the leading textbooks on tort.

Street developed a final year course on public law, which rekindled his interest and gave him an understanding the way law and politics work together.

Then it was off to 2 Hare Court, now Blackstone chambers, before joining 10KBW, where he had a classic knockabout practice doing a daily mix of crime, matrimonial and civil law.

As an idealistic 22-year-old barrister, he recalls: ‘I remember the first time I realised that a client was lying to me – it was the most terrible shock’.

After that, the disillusion set in pretty quickly and he fled private practice for the government legal service. That was in 1976 and, he since then he says, ‘I can count on the fingers of one hand the number of dull weeks I had there in 35 years there’.

‘If you want to do public law and you’re interested in politics, but don’t want to be a politician then working in the government legal department is just amazing’.

Jenkins, who is a bencher of Middle Temple and next year will be its treasurer, says he owes a lot to his Inn, which gave him a scholarship and helped him get pupillage. ‘It was very odd being a state schoolboy with no legal connections in 1976. If Middle Temple hadn’t looked after me, I don’t know if I’d have enjoyed it so much’.

As Treasurer, he wants to do all he can to encourage and support students from non-traditional backgrounds come to the bar. ‘I worry enormously about the future of our profession. I worry that it will slide backwards to the socially exclusive profession that it was when I joined’.