Of Strikes, Silks and Stuff
| Author | James Morton |
| DOI | 10.1350/jcla.68.5.357.43226 |
| Published date | 01 October 2004 |
| Date | 01 October 2004 |
| Subject Matter | Opinion |
OPINION
Of Strikes, Silks and Stuff
James Morton
In the spring and early summer of 2004 an unseemly row broke out
between the Bar and the Department of Constitutional Affairs over the
question of remuneration leading to unofficial strikes. There had also
been the spectacle of a leading silk withdrawing from a defence because
the client had run out of funds in the middle of a fraud case and was now
obliged to seek legal aid. The first thing that must be said is that the silk
was perfectly within his rights to do this and did nothing professionally
improper, but the resulting publicity did no good for the Criminal Bar as
a whole since it appears that the silk in question would still have been
paid something in the region of £600 per diem. Of course, he and others
could well argue that a skilled plumber or builder can presently expect
to earn rather more. On the other hand, a day in court is probably some
six hours including a lunch break which can leave several hours a day
for paid preparation in other cases. Nor do silks have the pleasure of
night-time visits to police stations—the privilege of members of the
junior half of the profession.
The row between the Bar and the Department of Constitutional
Affairs has been over fees in what are now called very high-cost cases,
which make up only 1 per cent of criminal cases, but take up to half the
legal aid budget. Generally speaking, they are fraud cases, but they can
also include cases which have attracted the public interest such as child
murder cases. Quite why cases such as these require higher fees in the
absence of technical difficulties is difficult for the lay person to under-
stand. As a result of the dispute some four very high-cost cases sched-
uled to be heard in June did not, at the beginning of the month, have
defence counsel. In Nottingham, solicitors acting for a number of Kurds
charged with murder and an even greater number of them charged with
affray failed for some time to find barristers to represent them even at
preliminary hearings, let alone the trials. Probably we have come to the
situation when the law can finally be described as a trade and not a
profession. Are we beginning to see a position where there should in fact
be a public defender who will undertake the majority of criminal de-
fence work?
It is getting on for 20 years since that suggestion was discussed in a
paper published by JUSTICE. Since then public defender offices have
been established on a trial basis in a number of areas. There has also
been a radical change in the way legal aid in criminal cases has been
awarded. Franchises to conduct legal aid cases have been awarded and,
to an extent, the successful firms have become private versions of public
defenders answerable to a central body. The defendant has had his
choice of counsel, but never counsel of his choice. Is it time to go the
whole way in the UK and have such a system? There are many benefits
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