Sorry to decline your Brief

Stephen Sedley

  • Judge for yourself by James Pickles
    Smith Gryphon, 242 pp, £15.99, April 1992, ISBN 1 85685 019 6
  • The Barrister’s World by John Morison and Philip Leith
    Open University, 256 pp, £35.00, December 1991, ISBN 0 335 09396 5
  • Advocates by David Pannick
    Oxford, 305 pp, £15.00, April 1992, ISBN 0 19 811948 8

The absurdity of ex-judge James Pickles is not that, the son of a mayor of Halifax and himself an Oxford graduate, he rails endlessly against the domination of the Bench by the Oxbridge upper middle class. There’s nothing wrong with being a traitor to one’s class. As the left-wing QC D. N. Pritt told the right-wing Labour leader Ernest Bevin, it was the only thing the two of them had in common. No, what’s odd about Pickles is that, as his book repeatedly reveals, he is an unimaginative authoritarian who has somehow managed to break all the rules in his private war against unimaginative authoritarians.

He appears not to see the slightest irony, alter endless diatribes against the snobbery of the legal profession, in remarking: ‘There can be problems on one’s release’ from prison ‘as even Gerald Ronson will have found. Any hopes of an honour or title will have crumbled.’ Even Lord Lane could be forgiven for thinking it pretty rich to be called a dinosaur by the judge who jailed Michelle Renshaw for being too scared to give evidence and who sent Tracey Scott to prison for six months with her baby for letting her friends take goods through her supermarket check-out. The Renshaw case, as it happens, is the subject of about the only conscious revelation in Pickles’s book. ‘I have not been able to reveal until now that it was Mr Justice Michael Davies who suggested that I jail Renshaw for seven days,’ he writes. ‘He asked how long I proposed to give her, and I said 21 days. “No, make it seven,” he said, and I did.’ There is not a trace of irony in this passage. Nor is there in his indignant assertion: ‘I was reported as saying that I was sending Scott to prison in order to deter accused women from becoming pregnant.’ What he actually said in court was: ‘I do not ... find that you deliberately became pregnant with a view to avoiding, a custodial sentence. The possibility, however, that other women may do that is one of many factors I have to bear in mind in this difficult case.’ Spot the difference? The whole nasty episode situates Pickles in the body of judges who send women to prison more often and for longer than men with similar records who are convicted of similar offences, and the rest of the book shows why. ‘One woman told me she hated Page Three as she had had a mastectomy. This is the key to female condemnation of nude photographs. Those girls have better, more exciting breasts than theirs,’ and so on and on. This man, one begins to think, has a problem. The Sun, having rightly called him a plonker, equally appropriately recruited him as a columnist.

The legal system has itself to thank for this judicial Alf Garnett’s endless appearances on chat-shows and in newspaper columns. The rule of silence which successive Lord Chancellors until 1987 imposed on all judges (we can perhaps now see why) offered a golden megaphone to whoever happened to be the first one to come out in public, not with a few guarded pomposities, but with spontaneous responses to journalists’ proddings. Since by definition it would be a maverick who did this, James Pickles was an egg waiting to land on the face of the judiciary.

The best passage in the book, awash with unconscious humour, is the account of what Pickles thought would be his showdown with the present Lord Chancellor. Lord Mackay, however, had obviously got his measure. Pickles had been refusing to attend anything that might be a private trial, and Mackay finally offered him the choice of a formal public hearing or an informal private meeting. Pickles chose the latter (‘I could negotiate a settlement in which neither of us climbed down’). At it, Mackay pointed out, as to a child, that it was not really appropriate to respond to the Court of Appeal’s intervention in the Tracey Scott case by calling the Lord Chief Justice a dinosaur at an ad hoc press coherence in a pub, especially when he had promised not to comment again in public after the Michelle Renshaw case; or to repeat the remark at a dinner where a journalist was present; or to employ a media agent. Pickles gave the written promise to desist which Mackay asked for. Since Pickles was approaching retirement, it was all Mackay needed. Dismissal would have been a media disaster. Pickles sings Mackay’s praises (‘he does not have the public school manner of the Hailshams, Haverses, Donaldsons and Kilmuirs which arouses hostility in ordinary people like me’), concluding with characteristic modesty: ‘single-handedly I managed to get the judiciary freed from the Kilmuir gag with which Hailsham and his predecessors had silenced it for generations.’ Not quite true, as it happens. In the mid-Eighties, Hugo Young did a radio programme on the law. Hailsham, the then Lord Chancellor, would not waive the rules, but Lord Templeman, a law lord who was effectively beyond his reach, went on the programme anyway and broke the taboo, which Mackay abandoned when he took up office in 1987. Pickles still seems unable to understand that it is not talking to the media but the stupid things he says to them that makes him notorious.

With the exception nowadays of a few able solicitors, all judges are drawn from the relatively small barristers’ profession. John Morison and Philip Leith, two Belfast academics, have had a brave go at penetrating and describing in sociological terms the business of advocacy in the United Kingdom – a country containing three separate jurisdictions and legal professions. The contrast between their straightforward thesis, that law is a process rather than a set of texts, and the sometimes baroque vocabulary in which they explore it, brings to mind the gibe that sociology consists of saying things everybody knows in language nobody understands, I’m not qualified to say what the work contributes to sociology, but it does contain insights which barristers might do well to share. For example, the authors remark how the masculinity of conduct and speech which typifies the Bar affects women barristers too. Not long ago a young woman barrister told me that a judge had chewed her balls off for some mistake she had made that morning. The Bar’s homogenised culture goes far wider than gender, however. The process of training and learning that goes on for most of a barrister’s life consists principally of absorbing attitudes which will earn judicial approval. This is not as simple as toadying: it is an attempt to come to terms with the fact that an advocate whose manner and assumptions have no resonance with the judge’s does not readily win arguments. Attitude cloning, therefore, is how barristers get on. The result is a judiciary and a profession which for the most part constantly re-create themselves in their own image. To the bulk of the profession the sight and sound of well-groomed young men conversing in cutting accents about their cases and about the world in terms indistinguishable from those used by barristers thirty years their senior is a ground for great satisfaction. Morison and Leith give us (although without comment) sound-bites of how these seniors talk: ‘I have acted for a member of the Free Wales Army ... I wouldn’t have associated myself with that for which he was campaigning. ‘I promise you that it is not unusual for a barrister, when in civvies, to use English like this. A significant number really do drop Latin tags into their conversation or say things like ‘I know not’ or ‘I hear what you say.’

Morison and Leith are less interested in the process of making lawyers, however, than in the process of making law. Their argument that law is ‘a social process where information is constructed, passed on and mediated through a myriad of ways’ is of more than sociological interest, because it starts to shed light on the myth that the business of law is the ascertainment of truth. It is no such thing: the business of law is winning cases. This study starts to explore the entrenched culture which keeps it that way, but whether its ambition to construct a sociology of legal knowledge will help us towards a better legal system or simply describe the one we have is a question that replicates the authors’ own anxiety about the cleft between the study and the practice of law.

The system we have is predicated on advocacy – that is, on presentation. David Pannick excavates Plato, Cicero and Quintilian for quotations about the deceptive and illusory characteristics of the art. But, as he would agree, the image of the advocate as conjuror is far too simple. In a process which is not single-mindedly devoted to finding the truth, everything depends on which of the competing versions of the known facts or contentions is more credibly presented. The court’s search, and therefore the advocate’s, is not for truth but for verisimilitude. Equally the pursuit of justice takes the form of filtering what pass for facts through a gauze of rhetoric. It is a mistake, moreover, to think of advocacy as confined to advocates. In the UK, one of the great advantages of a barrister-fed judiciary is that the arts of advocacy – the greatest of which is reasoning from a given conclusion – go on being deployed in the formulation of judgments and summings-up.

Like all trades, professions and priesthoods the Bar has an inward-looking folklore and a congratulatory image of itself. It’s an antidote, I suppose, to the world’s picture of the barrister as ham actor. I once saw myself played, in a television reconstruction of an inquiry I had taken part in, by an actor so out of touch with the reality of advocacy that I reckoned I could have played the part better myself. David Pannick is a very good advocate – in being wholly unlike the theatrical stereotype, which, complete with orotund diction and querulous inflection, is about a century out of date. He is dry, deliberate, lucid and brief; hopeless as a model for a drama series, but effective when it comes to winning cases before judges with long lists and short attention-spans. Much of Pannick’s volume is a scrapbook, entertaining to insiders and evidently to outsiders too, of the highly-coloured mannerisms and eccentricities of advocates in other times and places. The activities of tolerated eccentrics are, of course, what make the rest of us feel secure in our conformity. But the book’s more serious interest lies in Pannick’s reflections on two things: the case for structural reform of the profession, and the Bar’s claim to perform a disinterested public service. His sceptical attitude towards the profession on the first is at odds with his participation in the Bar’s self-satisfaction over the second.

The Bar’s howl of rage at the end of the Eighties at the plans of a government for whom most of its members had voted to introduce more competition into the provision of legal services, and to cut out restrictive practices, was nothing new. In the Twenties, a witty series of vignettes called Forensic Fables included the story of Mr Splasher KC, who before going into court for another bout of union-bashing always made sure that his brief fee was at least as high as his opponent’s and that his junior’s fee was two-thirds of his own. In the Eighties, under the threat of government intervention, the two-thirds fee rule and the requirement that a QC must always have a junior counsel in court were dropped by the Bar. The change, as Morison and Leith record and as any barrister’s clerk will tell you, has been imperceptible: the Lord Chancellor’s Department found that in a 15-month period after the rule was dropped, QCs appeared without a junior in eight out of over seventeen hundred cases. The controlled opening-up of advocacy to solicitors and other professions is now happening, and Pannick is right to deplore the Bar’s resistance to it. What is more, the odds are that, like other reforms, this one will make very little ultimate difference. Solicitors and lay clients are still going to need advocates who share the culture and talk the language of the judge, and the few non-barristers who are appointed judges will continue to be those who most resemble the existing ones. Consistently with the philosophy of the free market, clients with the means to exercise choice will no longer be constrained by rules or practices: they will freely choose out of self-interest to go on as before. I suspect that Pannick’s description of the Mackay reforms as ‘fundamental’ may be premature.

The central plank of the Bar’s platform in this argument has been the cab-rank rule. This is the rule of professional conduct which for bids a barrister to turn down a brief, so long as a proper fee or legal aid is available, because he or she does not like the look of the client or the case. Solicitors are not bound by any such rule, and the Bar has argued powerfully that they should therefore not be let into the business of advocacy in the higher courts. Pannick is lyrical about the public service which the rule underpins. Unforgivably, he chooses to direct his sharpest criticisms at some of the younger barristers who in recent years have been concerned about the implications of being vehicles for unscrupulous litigants who have money or power against those who do not. There is a far more complicated and important set of ethical issues here than Pannick allows. The purpose of the rule, historically, was precisely to ensure that small people standing up to the powerful could get representation (always provided they could pay). The well-off and the respectable have never had a problem in securing the assistance of the second oldest profession. In practice, the problem rarely arises, since clients and solicitors ordinarily choose barristers whom they believe to be sympathetic to them, or at least uninterested in anything except the fee. But what does a black barrister do when sent a defence brief in a racial violence case because he or she is black; or a woman barrister who is briefed for corresponding reasons to defend in a rape case?

The truth is that there is some justice in the popular view, which Pannick dismisses, of the advocate as harlot. In one place he recounts Erskine’s stirring enunciation of the cab-rank rule in his defence of Tom Paine – ‘from the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end’ – though without remarking that Erskine’s purpose was to dissociate himself from Paine. In another he recounts the tale of how, when retained by a society of religious bigots to prosecute Paine’s publisher Thomas Williams for blasphemy for publishing The Age of Reason, Erskine established the duty of prosecuting counsel not to put the boot in on the accused. Pannick might perhaps have cited Paine’s reaction to his advocate’s apparent duplicity. In a pamphlet which Paine had to have published in Paris because the ruin of Williams had – as the prosecutors intended – ensured that no English publisher would touch his words thereafter, he wrote:

It is a matter of surprise to some people to see Mr Erskine act as counsel for a crown prosecution commenced against the right of opinion, I confess it is none to me, notwithstanding all that Mr Erskine has said before; for it is difficult to know when a lawyer is to be believed: I have always observed that Mr Erskine, when contending as counsel for the right of political opinion, frequently took occasions, and those often dragged in head and shoulders, to lard, what he called the British Constitution, with a great deal of praise. Yet the same Mr Erskine said to me in conversation, were government to begin de novo in England, they would never establish such a damned absurdity (it was exactly his expression) as this is, ought I then to be surprised at Mr Erskine for inconsistency.

   In this prosecution Mr Erskine admits the right of controversy; but says, that the Christian religion is not to be abused. This is somewhat sophistical, because while he admits the right of controversy, he reserves the right of calling that controversy, abuse; and thus, lawyer-like, undoes by one word, what he says in the other.

Erskine’s and Pannick’s and the Bar’s answer to these strictures on the private morality of barristers is the public morality of the cab-rank rule. Apart from the fact that there are barristers who have never seen a legal aid brief, solicitors who, without such a rule, do take on unpopular cases have much experience of the sudden unavailability of leading counsel to conduct the cases in court.

My father was a solicitor who in 1946 took on the defence of a group of Communists charged with the novel crime of conspiracy to trespass. They had organised a mass squat by homeless people in empty houses requisitioned by the Government during the war. Among his papers I found this letter:

  I was sorry to have to decline your Brief to appear for the Squatters.

  This goes very much against the grain with me because, as you may know, I have always felt strongly that it is our job to be taxi-cabs on the rank. The trouble is that that view seems to be so uncommon that its continual application would mean my continual appearance for Fascists, Communists, Conchies and spies ...

                       Yours sincerely,

                              Gerald Gardiner

This was at least honest, but it is hardly Pannick’s scenario. During the Seventies a solicitor found himself unable to obtain the services of a single QC for a client facing charges at the Old Bailey arising out of civil rights issues in Northern Ireland. It was only when the solicitor complained to the Bar Council (a complaint which became public) that a leading QC stepped forward and offered his services to redeem the tarnished reputation of the Bar. It is a great pity, therefore, that Pannick’s swipe at barristers who, however vulnerably, try to grapple openly with the ethical problems of their job is not matched by some account of how respectable advocates and their clerks, faced with unpopular cases or (far more often) legal aid briefs, operate the cab-rank rule in exactly the way that cab-drivers do for passengers who are not going their way.

Pannick remarks, rightly, that the Bar’s detractors forget that there are places where lawyers risk and sometimes lose their lives in defending unpopular cases and in standing up to governments. It might have been appropriate for him to point out that the ‘many countries of the world’ to which he refers include our own. In January 1989 the Parliamentary Under-Secretary of State at the Home Office, Douglas Hogg, said in a committee debate: ‘There are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA.’ Seamus Mallon MP responded: ‘I have no doubt that there are lawyers walking the streets or driving on the roads of the North of Ireland who have become targets for assassins’ bullets as a result of the statement that has been made tonight.’ Twenty-six days later a leading Belfast solicitor, Patrick Finucane, an effective and hard-working defender of people facing charges of terrorism, was shot dead by Protestant terrorists. The report of a committee of European lawyers commented: ‘It is hard to imagine that Douglas Hogg, a barrister who is the son and grandson of Lord Chancellors of England, could be ignorant or uncertain of the clear separation between personal sympathy and professional obligation.’ Perhaps. Or perhaps the blind spot is larger than Pannick and the self-image of the profession allow.