Keir Starmer, the Director of Public Prosecutions, had better watch out. Next year’s Bar chairman has the Crown Prosecution Service in his sights.
Nicholas Green, QC, talks of gathering storm clouds threatening the stability of the Bar and of pressures bearing down with “potentially devastating effect”. And one of these, he says, is the push by Crown prosecutors to take on Crown Court work that used to be handled by the Bar.
There are “no limits to the CPS’s ambitions”, he warns. The rate of expansion is “dramatic”. Sir Ken Macdonald, QC, the previous DPP, had referred to the CPS “coming out of the shadows”. Instead, Green says, he should have referred to “an Olympian sprint out of the robing room”.
The Bar-chairman elect, who becomes head of the profession next month, will outline these and other concerns at the Bar Council’s annual general meeting on Monday.
In some ways, the CPS battle is “Bar Wars” mark 2: the first round was in the 1980s when the old monopolies between solicitors and barristers were broken by Lord Mackay of Clashfern, then Lord Chancellor. Now, there is a new turf war — between stateemployed advocates and independent practitioners.
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Things have already reached a head. Talks recently broke down amid acrimony — “we had a spat”, Green says. The Attorney-General, Baroness Scotland of Asthal, stepped in to mediate. Confidential talks are set to resume. Lady Scotland is keen to see a deal done by March and Green is optimistic.
It could see limits set on how much work, either by volume or value, is handled by the CPS. At present it handles roughly 25 per cent of Crown Court work but double that in terms of value. “There is great collective interest in reaching a deal,” Green says. “The friction at the Bar this has caused is very unhealthy.”
Green, 51, a moderniser and former grammar school boy who went to the University of Leicester (he concentrated on his international swimming career) knows all about competition. A leading commercial silk at Brick Court Chambers, he is a competition law expert and has appeared in 100 cases at the European Court of Justice.
He may be less overtly combative than the present chairman, Desmond Browne, QC, but he will be as steely, despite his affable, gentle manner. And as a recorder, he also knows about the criminal courts and is an ardent advocate of jury trial.
But is this more than just a battle over work and income? Green argues, persuasively, not. One principle underpinning the CPS’s creation was that prosecutions in the Crown Court should be conducted by barristers who were independent from the prosecuting authority. So if the CPS is now “an unstoppable train” in its drive for Crown Court work, that raises constitutional issues. Parliament, Green says, never sanctioned a nationalised prosecution advocacy service combining the decision to prosecute with the conduct of trials.
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Meanwhile, the fight over legal aid cuts goes on over plans for a further 18 per cent cut in criminal fees. “These cuts are discretionary and, to our mind, completely irrational. The Carter reforms meant that a mid-ranking junior would earn about £50,000 gross or £25,000 to £30,000 net. This was regarded as a fair rate for defence work. Now we face this further cut.”
Why, he asks, should barristers shoulder a larger share of the public sector cuts than others? Senior civil servants face a pay freeze and middle-rank civil servants an increase of up to 1 per cent. “When barristers see civil servants and ministers take an 18 per cent pay cut, then we shall be silent.”
He warns that barristers will leave — not just legal aid work but the profession and, with solicitors, are already doing so. This is a far cry from fat-cat territory. “Barristers make easy scapegoats. But they are performing a critical function at the sharp end of the administration of justice.”
The Government had not investigated the cost of criminal legal aid work being done badly in terms of delays, adjournments, mistakes. “If you squeeze the pips, you will get contraction and people will walk away. You can always find someone to do the work but they will be less and less experienced.”
All is not bleak. He strongly backs the decision to allow barristers to set up in partnership or form companies to procure contracts for work — it will open up opportunities. “One of my major tasks is to help the Bar to get through this [present time], to enable people to change their business structures — and give them the tools to respond and fight back.”