The Death Knell of A Noble Profession – Time for the Judiciary to Act

May 21, 2013 GS2LAW

I remember it clearly, first night of Chanukah 2007, the major cuts to Very High-Cost Cases were announced, and I arrived home in a funk to the welcoming news that my wife was pregnant with our first child. At that moment I knew that being the breadwinner as a criminal defense barrister (the wig-wearing ones) at the Bar of England & Wales was going to be tough.

The next day I lamented to my leader in a multi-handed drug case in Kingston and his advice was clear “Run for the hills boy, it’s not going to get much better.” That had to be right, the government then were relying upon the fact that the people would never cry out or rise up in favor of defending (presumed) criminals.

When I told my brothers and sisters in arms at the Bar of my plans, move to America, take a year out to do an LLM, qualify for the New York Bar and find a job, I was told that I was crazy. My job hunt started here after the crash and I was met with responses of “I don’t know if I am going to be here next week” and “We might be a litigation firm but we have never done a trial in 30 years,” the admonitions of my friends seemed to be true.

As a result, I had no choice but to start up a firm with a few friends that I had met who were in a similar position. Don’t get me wrong, to set up a new law firm, with newly qualified or foreign lawyers, in New York in the toughest legal and economic marketplace in recent history is inadvisable. It has been tough. I had neither the respect that comes with being a barrister or the guidance that is imparted by a pupil master (a system that I have since realized is excellent in every respect). However, slowly and surely, with a little entrepreneurial spirit, we are starting to show the blooms of success, having survived our first 3 years.

Over the past few months, despondently I have watched the news reports in the UK as the Justice Secretary has proposed plans to slash the criminal legal aid budget, remove a defendant’s right to choose or dismiss counsel, introduce fixed fees for cases and grant large contracts to a few private businesses who will dole out cases to solicitors (the non wig-wearing ones).

Meeting upon meeting has been held by lawyers with governmental representatives where it has been pointed out time and again that such plans are an affront to civil liberties, will drive committed lawyers out of the profession and lowest common denominator justice will ensue. The well-reasoned arguments are met with a stultifying obstinacy that only British civil servants possess.

What is wrong with the Ministry of Justice is that once it has tasked a “consultation” it feels unable to retract. Probably because it was written by those who have never stared a wrongfully charged defendant in the face and committed to that defendant that they would fearlessly defend.

I watch as my friends and foes, colleagues alike, all of whom have invested heavily in education, all of whom have honed their craft, and all of whom are committed to seeing justice being done as either prosecutors or defenders. However what galls me the most is the lack of support of the majority of the judiciary, many of whom served at the front lines of the criminal Bar. There have been reports where judges have prevented Barristers from taking individual action, to take one day off to show solidarity with others and it is deeply upsetting.

I wish they would take a leaf out of the books of some of the US District Court judges, like Jack Weinstein, the Lewis Kaplan or the Richard Posner of this world. They are paradigms of a brave judicial approach, scything intelligence, and a desire to do what is right.

Where are the judges in the UK calling for cases so that they can strike down any proposed legislation as unconstitutional or contrary to human rights?

Why are the judges not routinely ordering the legal aid board (or whatever they are called at the moment) to pay for counsel to read “unused material?” – for the US attorney, this is where the prosecution in the UK can decide what evidence is relevant for its purposes to prove an allegation but often contains exculpatory evidence.

The Bar will only be able to stand together if it has judicial support and the gumption to initiate a class or aggregate action on behalf of themselves or the populace to strike down the insidious proposals.

Robert Garson