Footnote

This week I have had two articles published: one in the Times, about the Kavanaugh nomination and the unreliability of evidence of ‘demeanour’; the other in the London Review of Books – a review of the Secret Barrister and an account of the deplorable state of our criminal courts and publicly funded justice in general. The LRB piece originally had a section about Sarah Langford’s marvellous In Your Defence, for which there was not enough space, so here is what I wrote about it:

Sarah Langford writes in her own name, and describes in detail eleven anonymised cases in which she has appeared – three in family law, the rest in crime. She describes how she has advocated for her clients, but she also steps back to give a more complete account of the all-too-human stories that lie, for example, behind a bitter fight over who gets the children in a divorce, or what drives a young man to admit an offence he has not committed. Langford speaks of her own occasional misgivings about her role and the function she fulfils in a compromised system of justice – her candour and the depth of her humanity are unusual in a profession in which few of us have the time or inclination to reflect before the next case comes along. Her book is not confessional, but it gives an intimate and true account of the challenges that a thoughtful and sensitive person faces in her line of work.

 Each of these books ought to shock those who know little of our system of criminal and family justice. They might end up agreeing with Robert Conquest that to understand how an institution works, you should assume that it is run by a cabal of its enemies. These books show where things have gone wrong, but they also show something of the calibre of the people who keep it going by refusing to let its enemies triumph.

 

An Open Letter to Jeremy Corbyn

Dear Mr Corbyn

I write to you as my constituency MP, to urge you to use your vote in the House of Commons to block the invocation of Article 50 of the Lisbon Treaty, and so prevent the disaster that Brexit will surely bring upon this country. You are widely respected for your work in North Islington, one of the most deprived constituencies in the UK, where you have stood up for the poor and dispossessed whose interests you have at heart. The most vulnerable will go the wall first.

The referendum result should not be seen as an unambiguous statement of the electorate’s settled will to leave the EU: it is too narrow for that interpretation; and the Leave campaign was a farrago of half-truths and downright lies, which will have deceived a fair number of voters about what Brexit would mean. If anything, the so-called ‘Project Fear’ by Remain underestimated the damage. The poorest will suffer the most. We can already see that the collapse of the currency and the stock market is sending the economy into a state of shock, perhaps recession. Investments are being suspended or stopped. Pension funds are worth less. Employers will make redundancies, and cut wages. There won’t be enough tax revenue for benefits or basic services.

Democracy is not served when the dice are loaded, as they were here, by a feral press, and by self-serving mendacious leaders. Accepting the result just because it’s a vote is not good enough in these circumstances, when so much is at stake. Your vote against Brexit in Parliament, and your ability to explain your vote, could save the country from the disaster it faces. It will save the very people who are closest to your heart, and their children and grandchildren, from years of intense uncertainty (at best) – and maybe it will even save Parliamentary democracy itself. Ask yourself this: if the Tories had offered a referendum on the death penalty, and 51.9% of the electorate voted for it, would you just accept it?

It’s not too late, even now. Please don’t let them have their way. Vote Brexit down.

 

Yours sincerely

 

Francis FitzGibbon

 

 

An Open Letter to Michael Gove & Boris Johnson

Dear Mr Gove and Mr Johnson

I won’t question your motives: I accept you thought that Brexit was genuinely in the United Kingdom’s best interests, long and short-term.

Please look around you today: the markets here and across the world have fallen, because of Brexit, wiping billions off the value of pensions and businesses. Our international credit rating has slipped. The City is preparing for an exodus – of people and their tax revenues. The Bank of England is preparing to put £250 billion into the economy – some one will have to pay that back, one day. We have lost a Prime Minister. We have lost our EU Commissioner. The peace in Northern Ireland is at risk. Scotland may secede. The young see their horizons and opportunities closing. We are losing friends around the world.

These losses, and others we don’t yet know about, may continue, indefinitely. You cannot have wanted any of this.

The result was close – 51.9% is hardly overwhelming, not in a vote about the nation’s future, for generations to come.

Think again. It’s not too late. The protest voters have made their protest, and many are regretting it. The minority of out-and-out racists must not be allowed to dictate to the nation. We know now that you will not have £350 million per week to spend on the NHS, or anything else; we know that immigration will continue. While the exit process and the redrafting of myriad laws is underway, ordinary government will be hobbled, for years to come. The control you take back will be control of a poorer, unhappier, smaller, lonelier country.

None of this is in the national interest. Show wisdom and courage. Admit the mistake, measure the EU’s faults against the greater dangers that are already beginning to hurt us. It’s not too late. Re-engage with the EU and the member states. ‘One more such victory, and we are undone.’

Yours sincerely

 

Francis FitzGibbon

Do You Believe Me?

The Metropolitan Police Commissioner has announced that officers investigating alleged sex offences will no longer be expected to presume that the complaints are true. That does not mean they should presume they are untrue – rather, that the officers should remain open-minded while ensuring that complainants get the police’s full support in order to give their accounts without undue stress.

‘Do you believe me?’ is the perfectly reasonable question that clients ask advocates, and which advocates dread. Answer ‘no’, and trust is gone for ever; answer ‘yes’, and you have become partisan and may find yourself seriously embarrassed later. The proper response has to be along the lines of ‘I mean no disrespect, but whether I believe you or not has nothing to do with my ability to represent you and put your case before the court as strongly as possible’. A respectful distance is essential.

What should happen – and it takes a while to learn how to do it – is suspension of one’s everyday inclination either to believe or disbelieve what some one says. The advocate should neither believe nor disbelieve; instead, you assess the account, put it in context with other evidence in the case, and look for its strengths and weaknesses. You may give your opinion on whether the tribunal will accept it, on the applicable standard of proof. Your own view of whether the account is true or not is unlikely to be a reliable guide to how others will receive it. If you form a view either way, you must put it aside. Advocates should never forget the wise words of Megarry J in John v Rees [1970] 1 Ch 345

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not: of unanswerable charges which, in the event, were completely answered; with inexplicable conduct which was fully explained…

 

 

Fear No More the Heat of the Sun

Fear no more the heat o’ the sun,
Nor the furious winter’s rages;
Thou thy worldly task hast done,
Home art gone and ta’en thy wages;
Golden lads and girls all must,
As chimney-sweepers, come to dust.

The new director of the Globe Theatre, Emma Rice, said on the Today Programme today that she was willing to cut the difficult bits from Shakespeare, and modernise some of his language. In this famous and beautiful song from Cymbeline, she replaces ‘chimney-sweepers’ with ‘dandelions’, because, she says, in the early 16^th Century dandelions were called chimney-sweepers and audiences today won’t know that and won’t know chimneys were swept before the industrial revolution.

It’s not hard to see how the weed got its nickname:

 

 

The life of a flower is short and its shortness is poignant – a well-worked trope for the transitory nature of youth, beauty, and life itself. Children sent up narrow chimneys with their brushes were not likely to last long either.

The songs mourns the death of a golden girl. The ‘chimney-sweepers’ in it can refer to both a flower and a child at once; and can make the child a sort of flower and flower a sort of child. It’s not just one or the other and it’s not just another flower metaphor. To appreciate that this is the sort of thing that Shakespeare does is to begin to be aware of the scale of his genius – to make unseen connections, to illuminate the familiar with the less familiar. The song recognises that death comes to all: flowers, golden people, soot-covered people, and yet there’s a comfort because he calls death ‘home’ and fear is gone.

Why sacrifice the richness of ‘chimney-sweepers’ in a modern production of the play? Why make the image two dimensional instead of three? It is insulting to an audience to water down Shakespeare’s language. How difficult is it to grasp multiple meanings?

Complexity, nuance, ambiguity are to be treasured, as are ‘all things counter, original, spare, strange; Whatever is fickle, freckled…’ A simplified, binary world just of off/on, with me or against me, black and white, is a vile place.

 

 

 

Everybody Matters

In the film Bridge of Spies, Tom Hanks plays the American lawyer James B Donovan, who defended a man accused of spying for the Soviet Union in the USA in the late 1950s. He is called unpatriotic and he receives hate mail and threats to his life. Someone fires a gun at his house. No one expects him to put much energy into the case, but he does and he fights for his client as hard as he can. When he is incredulously asked why, he just says ‘everybody matters’.

That simple phrase sums up what criminal lawyers believe in. Equality before the law is another way of putting it, but ‘everybody matters’ is better.

Cecil Rhodes and the Proceeds of Crime

Part 7 of the Proceeds of Crime Act 2002 reformed the criminal law of money laundering. It is an offence to acquire, use have possession of, conceal, disguise, convert, or transfer the proceeds of crime, or remove them from the UK,  or to enter into or become concerned in an arrangement which you know or suspect facilitates (by whatever means) the acquisition, retention, use or control of it by or on behalf of another person. 

Many great philanthropists have done things that we would now regard as crimes, but used the proceeds for uncontestable public benefits, which long outlast their evil origins. Time will launder a reputation, but not all the stains can come out. Endowments to educational establishments tend to be the dry-cleaning solution of choice for those who desire a shiny posthumous legacy.

Thus, Cardinal Wolsey, loyal torturer of the King’s enemies in the Star Chamber, founded Christ Church, Oxford:

Christopher Codrington’s profits from his slave plantations endowed the library at All Souls that bears his name and his statue in a heroic pose – the most beautiful place anywhere to read a book:

The horrors of sugar cultivation by slaves in the West Indies paid for the Tate Galleries.

Remorse, guilt, the desire to redeem a sullied reputation by good works, or just personal vanity may each play a part in this type of philanthropy. Or maybe the donors and their contemporaries saw no contradictions.

Oriel College, handsomely endowed by its alumnus Cecil Rhodes, has come under fire for keeping a statue of Rhodes and a commemorative plaque on public display, and is debating what to do about them. He comes in for criticism as an aggressive empire-builder in late C19 Africa, who grew rich from diamond mining and went on to Rhodesia. His legacy includes the Rhodes scholarships – a wholly admirable system for funding exceptionally bright students from across the world to study in Oxford.

Oriel’s statement about the Rhodes issue is balanced and sensible. The College does not dismiss the complaints. It recognises that the statue and the plaque are capable of giving offence, and acknowledges that attitudes to Rhodes and his activities have changed over the years. It seeks views about what it should do.

Staying in Oxford: compare and contrast Wadham College. The sister of the last Shah of Iran gave her name and the dynasty’s dirty money to the Ashraf Pahlavi library in the 1970s. There was a monumental fuss at the time that the College was taking money from so tainted a source, while the Shah was still in power, torturing and murdering his enemies. Wadham quietly renamed it the Ferdowsi Library, after the classical Persian poet. A small uncomfortable truth was wiped away.

I think that the Oriel students are making a serious mistake by demanding the removal of Rhodes’s visible traces.  If being offended by a statue is the worst thing that has happened to them, they have no idea how lucky they are. Erasing visible signs of the past erases memory of the past. Go to Germany, and see the frequent reminders of that country’s darkest days. We all have a duty not to forget. An evil past must be remembered, not obliterated, but a legacy from an evil time may not itself be evil: whatever the motives of the donor, the gift itself can do good. The statues of Rhodes, or Codrington, should remind us that we cannot deny the truth of our historical legacies, however uncomfortable they make us feel. Better to confront them for what they are, explain their context, and point out that what drove a Rhodes or a Codrington does not drive modern institutions devoted to education and scholarship.

Nothing Like the Sun

Dear Readers of this Blog (both of you),

Nothing Like the Sun has fallen silent lately, but only because its Onlie Begetter has been intensely busy with actual work. However, in a moment of idleness the OB was thinking (to the amazement of Mrs OB), and wondered why Nothing Like the Sun was the name of the Blog.

Well: partly because it’s nothing like The Sun: no bikini-clad lovelies, no sports coverage (yet), less frothing of the mouth…but also because of Sonnet 130:

My mistress’ eyes are nothing like the sun;
Coral is far more red than her lips’ red;
If snow be white, why then her breasts are dun;
If hairs be wires, black wires grow on her head.
I have seen roses damask’d, red and white,
But no such roses see I in her cheeks;
And in some perfumes is there more delight
Than in the breath that from my mistress reeks.
I love to hear her speak, yet well I know
That music hath a far more pleasing sound;
I grant I never saw a goddess go;
My mistress, when she walks, treads on the ground:
And yet, by heaven, I think my love as rare
As any she belied with false compare. 

This subtle poem is full of misgivings: how lovely is the mistress really? Would she prefer to be flattered, and how will she respond to the show of sincerity? Is the show of sincerity sincere (you are the most wonderful being, more than words can say?)? If words can’t say it, why use them? We are within sight of the relentless truth-teller Cordelia (‘Love, and be silent’): and non-flattery got her nowhere.

We use the word ‘unflattering’ to mean something less than merely veridical – it’s a put-down word. But this poem is all about being unflattering, from the point of view of the flatterer and the flatteree.

There’s comedy, too, in the reversal of expectation: but how will the beloved take to having the piss taken about her looks and even her breath? What kind of thanks would she give?

The couplet that follows 12 lines of virtuoso irony is flat, and ‘by heaven’ sounds like its trying just a bit too hard – another betrayal? I don’t believe the pious affirmation any more than what precedes it. The poem eats itself, but virtuosity is its own reward.

This gives the obvious background to a dry blog about legal affairs (matters of law, not of the heart): though the legal process can be binary in its final decisions – win/lose – the dialectical processes that get us to the decision are (should be) full of subtlety, irony, and nuance. Those are what interest me.

A world without subtlety, irony, nuance is the world of the Caliphate: you are with us, or you are dead.

 

 

An Open Letter to Mark George

Dear Mark

Let me start by saying that I admire you as a person and an advocate. Your career shines out with a burning sense of justice and the desire to right wrongs. You have 10 years more experience at the Bar than I do, and your work covers a greater range than mine. You have been steeped in politics in a way I have not. I only became a member of the CBA’s executive committee this year, having been involved as a commentator and occasional walk-on performer over the last few years during the profession’s campaigns against the legal aid cuts and restrictions on access to justice. So you have many advantages over me.

The main reason I wanted to be on the Exec Committee, and now to become vice-chair, is that I can contribute positively to the evolving changes in the way that the state administers criminal justice. I don’t want to criticise from the sidelines, but to be in the room. Like you, I want the best advice and representation by litigators and advocates to be available to as many people as possible. That needs to be paid for at sensible rates that make the work attractive to the best and brightest.  I want that because I believe the denial of access to justice is a gateway to anarchy and disorder, and the civilised rule of law means everyone should feel that the law can do something for them. If people think they cannot get a fair crack of the whip under the law, why should they obey the law?

Like you, I believe that the MOJ has made a series of poor policy decisions, behind which may well lie a thoroughly nasty ideology of devil take the hindmost.

However (sorry Mr Gove), the prescriptions in your election statement raise more questions than answers. I fear they are either unachievable, or will achieve the opposite of what we both want. Here are some of the questions:

• No meetings with MOJ apart from LCCSA & CLSA: why? What assurance is there that once in the room everyone will agree? You assume all differences will be ironed out in advance, but that’s a big assumption. Communication with our solicitor colleagues should of course be open and frank, but our interests may not always converge. Your plan puts a lock on solicitors and barristers: for ever? And you leave out the BFG entirely. Are you content for them to meet MOJ on their own? (Joint action plan with LCCSA and CLSA: let’s see how the members vote in the ballot, and again, what about BFG?)

• ‘Maximum transparency & full communication with the [CBA] membership’. What’s lacking? We have a weekly bulletin from the Chair, and regular updates. Anyone can ask the leadership for more. Social media is full of Exec Committee members giving their views and information. What more do you propose?

• An immediate 5% rise in advocates’ fees and inflation-linked annual increases. How are you going to negotiate this? What about litigator fees, which you don’t mention? Where will the money come from? Why should lawyers get such favourable treatment over and above others who rely on public funds, like nurses or police officers? And having made this demand part of your platform, what will you say to the membership when it’s turned down flat?

• Withdrawal of the 8.75% cut and the dual contract. I fear that MOJ are quite happy to sit the action out, and as and when things become really chaotic in police stations and courts, they will turn on the profession and cease to treat us as reasonable negotiating partners.

It would be nice to know how you answer these questions. It’s not matter of being ‘detached from the shop floor’: the nearest thing our business has to a shop floor is the police station, and we barristers are inevitably detached from that, but we know our solicitors and the wretched fees they get for their work there. Otherwise, unless we are particularly snooty, we all do the same job. No silk who spends time in chambers or the Crown Court can be unaware of the strength of feeling among juniors – and silks – about what is going on. The out-of-touch silk is a bit of a straw man.

I think that militancy at this time, and the hyped-up language of militancy, are out of place. You offer the membership a gamble: put everything on the red, now. What if you fail? I think a more measured strategy is called for.

Yours ever,

Francis

 

 

Don’t You Know There Isn’t a War On?

Very few if any solicitors or barristers think the MOJ’s cuts in legal aid for litigator fees and the imposition of dual contracts are a good idea. Some solicitors’ firms are taking the risk of bidding for contracts in the hope that they will make a profit or just to stay in the game. The MOJ’s policy was a brutal and dangerously under-tested way of accelerating a process of market consolidation that was already underway, as firms merged or were bought up, in order to reduce costs and benefit from economies of scale. That trend was the consequence of previous fee reductions and a falling crime rate. On the badness of the MOJ’s policy, the Bar and the solicitors have little to argue about. Good advocacy relies on good litigation. If the low fees and a dud contract make good litigation impossible, advocates will be hard pressed to do the best for their clients and justice will suffer.

We are arguing between ourselves about the best response to the problem, not the nature of the problem. The CBA’s decision to hold a ballot to decide whether to support the solicitors’ action has caused dismay and rancour. The tone and language is out of all proportion to the disagreement: there’s talk of betrayals, war, appeasement, ‘better to die on your feet than live on your knees’: and that’s at the more reasonable end  of comments on social media. Militancy is called for. Mark George QC, my opponent in the CBA election (an outstanding barrister, it should be said), suggests that the leadership of the CBA (and I) are ‘fans of Michael Gove’, who should not be in charge. Among other things he calls for an immediate increase of all legal aid fees by 5%, and an annual increase in line with inflation. Mark hasn’t indicated how much this would cost, or where the money should come from. You have to ask how the nurses and teachers would feel about lawyers using their militancy to achieve pay rises that they could only dream of.

It seems to me that the use of bellicose language has intoxicated people and diverted them from the realities of what’s going on. We are not at war with anyone. Mr Gove is not Hitler. This is a contractual dispute between a group of professionals and the government. If, as some one said at a meeting of lawyers at Garden Court Chambers in June, this dispute is part of a campaign against the wider policy of economic austerity, they are deluding themselves.

Michael Gove has inherited several poorly thought-out policies from the hapless and sinister Chris Grayling, who barely concealed his dislike of the rule of law on the occasions when he found himself being ruled by law. We are told to judge Gove by his deeds, not his (very) warm words about law and advocacy. Quite right. On the credit side, he has scrapped Grayling’s plan for supersized jails for children: at least 2 cheers for that. The top civil servants responsible for the muddles about legal aid, Brennan and Gibby, have moved on: maybe one more cheer. On the debit, he has pushed on with the cut and the dual contract.

Now maybe the present action will rock him enough to cancel or suspend them: we’ll see. What then? Pay increases all round, free beer and sunshine every day? Dream on. At some point,  whatever the outcome of the action, all the interested parties will have to talk to the government. Mark will if he is elected.   It will be difficult and tedious work and it will call for determination and maturity. Those doing it will need common sense and freedom from dogma. They will also need to shake off any sense of entitlement to old ways of doing things. It’s possible that more discussion of legal aid will just be off the government’s agenda, whatever the professions say or do. The dreaded OCOF waits in the wings.

And what if the present action achieves nothing except blockage in police stations and courts? No newly appointed minister with ambitions like Gove’s will want to be seen to give in to the demands of an interest group under pressure of such action: the political cost would be too high. I can only guess, but my guess is he will sit it out, and eventually turn on the profession. It is noticeable that the MOJ’s large and normally aggressive press operation has been quiet for the last two weeks. They seem to be playing a long game.

I supported the CBA holding a second vote on action: to have endorsed or repudiated it without that vote, after the general election and the partial change of direction by the solicitors, would have been risky. Remember what not holding a second vote did for the reputation of Arthur Scargill, and the livelihoods of thousands of people, when he might have won it and carried all before him. If the CBA votes to endorse the action, so be it. The leadership (as far as I know: I’m not part of it unless and until the members elect me as vice-chair) will respond to either outcome with equanimity, and will formulate appropriate policies.

I don’t support the action, for the reasons in my CBA election statement, but I respect and  sympathise with those who are taking part it, who include many friends and colleagues.

The rancour between and within the two branches of the profession must stop. People should start calling things by their right names, and stop (for example) dishonouring the dead of the First World War by likening the present business to the slaughter in the trenches. It’s demeaning and absurd.

We have interests in common, but our interests are not identical. Let’s recognise that, show each other more respect, and show the world that we deserve its respect. The Criminal Bar needs to vote and be decisive. You have till 4 pm on 14 July.