Copyright Hugh Harris 1993
The other News From England. April 8th., 1993.
LORD MACKAY has been in the news again. He is the Lord Chancellor, and has control over the activities of our lawyers and as far as he is able, their behaviour and the funding of the law generally.
I say 'as far as he is able' because some years ago now he tried to get the Bar Association (a lawyers' trade association) to clean up their act. The idea was to persuade them to become honest citizens, but it doesn't seem to have worked.
But even before he tried that, there was a time when he declared that it should be possible for an ordinary citizen to represent themselves in an English court if they felt so inclined. Cynical lawyers I know told me that he was trying to economise on the Legal Aid bill for the government. (Legal Aid is a system by which those who are too poor to pay for themselves to be represented legally are paid for either partly or completely by the state.)
I, like a fool, thought that if Lord Mackay thought it should be so, then the other members of his club would respect him and it would be so.
I had at that time an extremely difficult tenant who was getting more and more difficult and I was broke, so I decided to pursue justice through our local County (non-criminal) court representing myself. My oponent was legally aided (the state was paying her legal bills), and therefore had a barrister, solicitor, (I will tell you about these later, but for now they are lawyers) clerk, etc., all with their charges guaranteed.
At the beginning of the hearing the barrister questioned me as to what respect I had for lawyers in the light of some of the correspondence in the case, and wishing to be an honest witness (something pretty rare in any court) I expressed the contempt I felt as politely as possible. My contempt at that stage was not anything like as great as it became after that hearing.
The judge (himself a barrister) didn't like my not respecting his profession, and was obviously not impressed by my honesty, so that we didn't get off to a good start.
From the beginning the judge, probably out of sheer spite (as though that might stop me feeling contempt), allowed the case to ramble in every direction, relevant or otherwise, the barrister wasting as much time as possible. Eventually, all my witnesses (of whom there were many) had to go back to work and to their families. It is, of course, a strategy that lawyers adopt who have no case or no ability, but I can remember wondering if this was how it felt to be a Jew in a Court in Cermany just before the war.
In a few days, when it came to my chance to cross-examine the defendant, there was nobody representing my side except me. I noticed that the barrister's head kept trembling when the defendent was being cross-examined, and that on all occasions when this happened she either answered 'I don't know' or 'No'. Exasperating it was, particularly as the judge could obviously see what was going on. It was also exasperating because those things that my efforts brought to light despite this dodge were obviously falling on the deaf ears of prejudice in the judge. Suddenly, I said:
"did you say 'I don't know' because Mr.Phillips was shaking his head?", at which the defendant went into a panic and the judge (macnair - ed, Feb 1999), with surprising alacrity, said,
"you shouldn't answer that. I can't allow that question."'.
There was a general feeling of panic about, so the judge decided it was time to take a lunch break. Looking back, I now believe he wanted to find a way of getting the barrister off the hook. Sod the defendant. It was a member of his club who was now in the dock.
Now, a lunch-break has both advantages and disadvantages for someone who is trying to make the best of a bad job. The thinking time can be quite useful for both sides, and when we returned from lunch I had another go at the same subject. This time I tried:
"Do you have an arrangement by which every time Mr Phillips shakes his head you answer either 'no' or 'I don't know'?"
The judge disallowed this too, and very quickly indeed, saying it was not allowed to ask about the relationship between a barrister and his or her (for there are women, too, who would sink to this profession) client. I suppose he'd been looking for the appropriate rule in the rule book about the conduct of his profession during lunch. Maybe he found it and maybe he didn't. If he didn't, he now made one up (as he had often seemed to do before).
Not being a lawyer myself, I had to assume that he was allowed to make such decisions, even though it had become evident that he may be a little prejudiced. I have since been told that no question in cross-examination should be disallowed.
We rambled on, wasting much time on this Third Reich style hearing (at one stage in the hearing the judge sdid to the barrister "I want to see a bit of hubris."- look that word up - it's Greek.) until there was no possible way any more time could be wasted that the barrister could charge for, and then the judge gave his judgment.
I needn't tell you I was a loser, because that must be obvious to you, and would have been obvious before any evidence was heard, because (a) I was overtly contemptuous of lawyers, and (b) I was threatening their position with regard to being able to dip into the public's pockets.
Having demonstrated more adequately than I could imagine possible the kind of behaviour that caused me to despise his profession, the judge at the end of his summing up said "and next time, get a solicitor."!
It was in the mid eighties, and it cost me £12,000, which I had not got, and so it was charged against my house.
Now, I appealed against this judgment on various grounds, amongst them the ground that the barrister had been prompting his client. The registrar (a trainee judge who is almost invariably a barrister) who heard my appeal was so incensed that a person should make a complaint against a member of his club that he forgot to pretend to be impartial.
"Disgraceful!", he said indignantly, forgetting to look at any other evidence, and telling the barrister, "Now don't you say anything. Just you leave this to me".
Whilst he was an interesting spectacle in behavioural psychology terms, this did not resolve anything for me. One must presume he was also the barrister's 'sponsor' in my complaint to the Bar Association, and that he had somehow contrived to get the hearing into his 'chambers' (this is a lawyers' term to describe an office - but is sometimes extended to describe a kind of informal court).
He also decided to declare a break - maybe whilst he chatted up the 'independant lay observer' - if there was one.
I then wrote to Lord Mackay to tell him how well lawyers were heeding his ideas.
The peculiar thing is that despite my "blowing the whistle" (whistle-blowing is a term taken from the referee in a football match - rather appropriate don't you think? - it means when you take a risk of further difficulties rather than accept corruption), the same judge was still being called learned and honourable and still making judgments in 1990. The barrister was still operating, too.
The public in this country would have found the above story, though true, difficult to believe at the time (1987), but since the successful appeal of the 'Birmingham Six' there is little that the public wouldn't believe, which situation may be almost as bad.
The Birmingham Six were some people who were charged with I.R.A. bombings in the 70's and spent 15 years or so in jail, appealing regularly until, quite recently, it was shown by their defence that the prosecution case was so riddled with dishonesty and flaws generally that their convictions were, at the very least, 'unsafe'. It is said that members of the serious crimes squad who investigated the case fabricated evidence and the prosecution lawyers withheld evidence that was vital to the defence. In fact, one almost gets the feeling that what happened was that people decided these six were guilty and set about fabricating a case against them, that the judge took the same view before the hearing, and all colluded to the one end.
Two problems arise for comonsense justice in such a situation, even if one disregards the totally unacceptable act of restricting someone's freedom because of not trusting them. The first is that the actual culprits are still at large, and the second is that the credibility of one's legal system wears thin. The credibility of the legal system wears thin because logic says that in the original hearing of this case the prosecution lawyers involved and the judge were all in their own way either dishonest or, alternatively, incompetent because they could not see through what they were being asked to believe by the police. It is difficult to imagine a person being so ambitious that they will be dishonest just to achieve a conviction with complete disregard of the victim's welfare, but we seem to be asked to believe that it happened extensively here. Indeed, it is alleged to happen regularly all over the world, so why not here?
Lawyers being the kind of people they are, it is as likely as not that they will fabricate various actions to cleanse themselves as a profession, in fact do anything rather than truly clean up their act. The sort of thing they might try would be to discredit their critics, or the defence lawyers who successfully appealed, or the judge who allowed the appeal, (and they actually did criticise the police), rather than just simply admit that they were wrong. I suspect that to admit that you were wrong or to confess to a limitation on your ability is disallowed in a lawyer's training. Not the most constructive way of going about things.
LET ME tell you about barristers and solicitors, because they are an essential part of the British class system, an essential part of the British legal system, and, as far as I know, the only categories of lawyers.
Amongst themselves, like everything else British, lawyers have their own stifling little class system. A solicitor is the front line - a person into whose office you walk and ask for help. It is their job to make sure your papers are in order and to help you decide how you will approach your case, to receive correspondence about the case and answer it, to make the evidence appear as much in your favour as possible (even if it isn't), to put forward your views, and engage a barrister if necessary.
A barrister is a person whom you cannot engage directly, but have to engage through a solicitor, whose job it is to argue on your behalf (particularly in court) with an equal disregard of the merits of your case to that of the solicitor. It is a barrister's job to win, even if unjustly. This end is not always attained honestly.
Solicitors are not allowed to talk to judges, and so must ask the barrister to talk for them, thus maximising the chances of inaccurate information reaching the judge, but in language that the judge can understand. The implication here seems to be that solicitors do not know how to express themselves properly because they are a lower class, but there is a little more to it than that. The special language serves to maintain a 'them & us' division between not only lawyers and the rest, but also between lawyers and other lawyers. It maintains a power status quo.
To become a judge in the present system, you must first be a barrister (there are allegedly some solicitor judges), which involves getting invited to join the Bar Association (hence the term Bar-ster=barrister, which is easier to say), and then after much bowing and scraping and proving your ability to con your opponent in court you are invited to become a judge. Thus, the greatest bowers and scrapers and the most competent con-men become judges, and it is not surprising that the judge in my case was a little corrupt. If you're that badly brought up, there isn't a lot of chance of your going in any other direction, although it is said that there are some perfectly civilised judges about despite that.
So, the system is that the solicitors (the lower classes) do the minion work for the barristers (the middle classes), whose job it is to contact and influence the upper classes (the judge), whose job it is to act in the general manner directed by the Lord Chief justice and Lord Mackay (the more upper classes). All lawyers and administrators above judge are presumably barristers.
They all, in their way, parasite off each other, and not infrequently the only people who benefit once a case gets under way are the lawyers. If an outsider comes in and tries to get in on the act, they close ranks and drag them through the mill as they did me. It is a closed shop.
Now, there was a time, not even ten years ago, when you could criticise English lawyers and someone would stand up in their defence and say we have the best legal system in the world. They were usually a public-school person with no experience of having to deal with the law, or a lawyer (who is anyway likely to be public school of some sort). They would sound very pompous and self-righteous, and everybody would think they were marvellous. They don't seem to do it any more, but if they did Joe Public would probably be very quick to come back with such coments as "well God help the rest of the world."
If a member of the public makes a complaint about the behaviour of a lawyer, their trade association (either the Bar Association for a barrister, or the Law Society for a solicitor) will investigate it. One might think this was a very good thing, but the reality is that the whole thing is investigated in secret in the presence of 'independant lay witnesses' who are in the employ of the association concerned, the evidence looked at is not disclosed (even to the complainant), and the reason for not finding the complaint justified (for they rarely find any other way as far as I know) is not given.
There is one other strategy I have come across. They lose all the correspondence, or just allow the matter to expire from nonaction. A complainant must really persist.
ABOUT three years ago I advertised in a local paper to this effect:
"A lawyer who is honest, competent, intelligent and consciencuous is what I need. Does anyone know one? phone *****"
The replies were all received on my answering machine, and amounted to:
A man recomending a solicitor near to me "because she done us good."
Nine people asking me to put them in touch if I should find such a person.
But I should now say that it is of little avail criticising people without pointing out that they also have virtues. It took a very long time to find one, but I do now have a lawyer who as far as I know fits the advertised criteria (since proved wrong - ed Feb 1999). Not only that, but as the 1987 action both damaged my finances and made my house virtually unmanageable I have for the moment a legal aid certificate (a certificate of suitable poverty to get legal aid). Unfortunately, this also means that the judge's and barrister's ambition that nobody should poach on their club's territory has to some extent succeeded.
Getting back to Lord Mackay. He is trying to reduce the money that get's spent on Legal Aid in this country. To do this, he seems to be trying to reduce the circumstances in which a person might get legal aid. The result of this will be fewer legal cases being fought, and less money in lawyers' pockets. And so, you see, although it looks as though lawyers are for once thinking about their clients rather than their pockets when they campaign against these cuts, it might equally be argued that they are thinking about their pockets rather than their clients.