The Times - UK (2022-01-13)

the times | Thursday January 13 2022 57

The Queen’s
Counsel Official
Lawyers’
Handbook,
Biteback, £14.99

Headline here xyx

Xxy xyx yx yx yx

xyx yx yxxyx yx yx

xyx yxx yxxy yxyx

yx y x yx yx yxy xx

thetimes.co.uk

Meet the in-laws

Cousins Guy and

Chris Setford on

shaking up the

law firm model

thetimes.co.uk

Criminal law barristers need friends in
high places like never before as that side
of the profession is seen by many to be
in the midst of an existential crisis.
Figures from the Criminal Bar Asso-
ciation (CBA) show that 22 per cent of
junior barristers and 46 per cent of QCs
have ditched criminal work over the
past five years. Some have suggested
that at that rate of attrition, there will
not be a criminal Bar in a decade’s time.
No better time, then, for a hardened
criminal hack to take the top slot at the
Bar Council, the body that goes to bat
with ministers on behalf of 17,500 prac-
tising barristers in England and Wales.
Mark Fenhalls QC started his year’s
stint as the council’s chairman at the
beginning of this month, succeeding
Derek Sweeting QC. Fenhalls, a tenant
at 23 Essex Street Chambers in Gray’s
Inn, led the CBA from 2014-16.
Speaking to The Times this week,
Fenhalls says the argument about the
ills of the criminal Bar have shifted.
“Seven years ago the Ministry of Jus-
tice was listening to us tell them stories
about attrition and decline but we
didn’t have the numbers to show them
that it was real,” he says. “What’s
changed is that they now have the data
that shows it.”
Fenhalls says that for a three-
pronged solution to the crisis the gov-
ernment needs to increase legal aid
rates, make court listings more efficient
and tackle the infrastructure problems
of crumbling court buildings.
“What governments of every com-
plexion have been fairly good at over
the last 20 years,” he says, “has been
whenever it suits them creating new of-
fences. An example of how that creates
many more cases in the system is as-
saults against emergency workers. That
may be the right thing to do politically

and it may be what the public wants —

but let’s be honest with the public about

the cost of creating more offences.”

Addressing the mounting backlog of

cases in the crown courts, Fenhalls ac-

knowledges that there is little ministers

and HM Courts and Tribunals Service

can do until the coronavirus pandemic

restrictions are entirely lifted.

But listings are the key, he says, once

this happens. Fenhalls claims that while

there was a backlog of slightly fewer

than 40,000 crown court cases before

the restrictions, about half of those

were trials. In comparison, he says that

the “vast majority” of the present

60,000 case backlog consists of trials.

“The government should set an

objective that every serious case in the

Crown Court should be offered a trial

date within six months,” Fenhalls says,

arguing that it is “resources and

commitment that is stopping them

from doing that now.

“Imagine that every rape complain-

ant knew that the case would have a

date within six months — that would go

an enormous way to solving the attri-

tion problems where complainants

become disenchanted and miserable

and let down by the system.

“It is all about timely trials — engi-

neer that concession out of govern-

ment and we will have something truly

precious for society.”

Being Bar chairman means that

Fenhalls will not be able to focus exclu-

sively on criminal law issues. One of the

most prominent and delicate debates

centres on the role of UK judges in

Hong Kong’s highest court.

Senior human rights lawyers and

Labour opposition shadow bench

figures have called on that group —

which includes the president and depu-

ty president of the Supreme Court — to

stand down. The argument runs that

they are providing little more than a

Blinne Ní Ghrálaigh of Matrix

Chambers acted for Rhian Graham,

one of the “Colston Four” who were

cleared by the jury in Bristol crown

court of criminal damage for

removing a statue of the slave trader

Edward Colston, which was thrown

into Bristol harbour during a Black

Lives Matter protest.

What were the biggest hurdles in

this case? There weren’t too many

hurdles despite the high profile of

the case. The misinformation after

the fact around the verdicts, the legal

arguments at trial and the directions

to the jury have been a challenge.

What is the best decision you have

taken as a lawyer? The decision to

specialise in protest law is up there.

Who do you most admire in the

law? It has always been Atticus

Finch [from To Kill a

Mockingbird]. He is

everything a lawyer

should be.

What is the best

advice that you

have received?

“Do something

about it.” Given by

my mother to a

12-year-old me, in

tears over the killing

of a 12-year-old

schoolgirl in Co Armagh

by the British Army.

What is the funniest thing that has

happened in your job? On my

memorable first day in court as

a trainee barrister, my supervisor’s

client sacked him during the

course of the proceedings,

shouting that he

was a freemason,

as was everyone else

in the courtroom

other than me. The

client likely just

believed that

women could not

be freemasons —

but I banked it as

a vote of confidence

nonetheless.

What are the best and worst

elements of being a lawyer? The

utter privilege of doing the work

that I do. The long hours.

What law would you like to

enact? For a start, I would create

more safe legal routes for asylum

to prevent the continuing carnage

in the seas. And legislate to end

homelessness; the lockdown

“everyone in” scheme demonstrated

that it is a matter of political

will.

What is your favourite pop

song? The Broad Majestic Shannon

by the Pogues as an ode to my

best friend in the world and to

my wonderful mother, both taken

far too soon. They would definitely

be raising a glass to the jury’s

verdict.

Lawyer of the week Blinne Ní Ghrálaigh

Linda Tsang

[email protected]

course o

shout

was

as

in

o

c

b

w

be

but

a vot

noneth

WWWhat are the

elements of being

agh

Queen’s

Counsel

Alex Steuart

TIMES PHOTOGRAPHER JACK HILL

exclusive to members

Common assault Extra

time for trials of limited help

War on privacy Raab’s

plan for a UK bill of rights

Divorce courts British

families should come first

thetimes.co.uk

Council chief bats for criminal Bar

Mark Fenhalls QC, a criminal barrister, is the new chairman at the Bar Council

veneer of respectability for Beijing’s

autocratic version of the rule of law.

However, Fenhalls has qualms about

jumping into the debate, arguing that

first “it is more of an issue for the Law

Society” owing to the significant num-

ber of solicitors’ practices in Hong

Kong.

The position of the UK judges — who

are all former barristers — Fenhalls

says “is not a matter for the Bar Council.

It’s a political matter.”

However, Fenhalls is quick to criti-

cise the Chinese government for im-

posing sanctions on individual English

barristers and their chambers.

“A state like China shouldn’t be levy-

ing sanctions against individuals

around the world just because they

appear in cases that don’t suit the

Chinese government,” he says, adding

that “while you could argue that is the

type of state that the judges have

become involved with, you could equal-

ly argue that is the sort of state where

the judges are maintaining the rights of

individuals who are seeking relief from

the courts.”

Back on home turf, Fenhalls is

refreshingly honest about the future

structure of the Bar and the wider legal

profession in light of reforming

legislation that allowed barristers and

solicitors to form partnerships.

“I’ve no idea which way it will go,” he

says. “The legislation is the legislation

and people will either take advantage of

it or they won’t. We provide a service

and we’ve got to make it a high-quality,

cost-effective service. The moment we

stop providing one, the market will get

rid of us.

“So far it hasn’t done. So far the state

and the private markets see that self-

employed people competing against

each other, providing this high-quality

service, has a place. But I’m not saying

that it is the only model.”

Jonathan Ames

OUT OF COURT

The cases, the chatter, the chaos:

what’s really going on in the law

Two empty

seats in Lords

Two former Supreme Court judges

were granted leaves of absence

from the House of Lords at the

end of last year. Lord Phillips of

Worth Matravers, the court’s first

president, and Lord Mance, who

spent a nine-month stint as its

deputy president until June 2018,

are listed as being “ineligible to sit”

for this parliament.

This follows a controversial rule

that came into effect requiring

peers to register their earnings

from overseas governments. There

is no explanation on the Lords

online register of why Phillips

and Mance have taken leaves of

absence, but Phillips was president

of the Qatar International Court

& Dispute Resolution Centre until

2018, and he and Mance are active

international arbitrators.

Counsel clampdown

In-house corporate counsel are

fed up with overpriced law firm

partners. A new year survey by

researchers at Thomson Reuters

found that 90 per cent of legal

department chiefs at large

businesses in Europe “are

prioritising controlling outside

counsel cost”. Some 60 per cent

said this would mean “an increase

in legal work brought in-house”.

Arguably more important, the

survey found that 43 per cent

of legal departments now require

law firms to provide diversity

information about their practices

when they are pitching for work.

No love for video wills

Video-witnessed wills are set to

continue for two more years,

justice ministers confirmed this

week. The measure was brought

in during the pandemic to allow

vulnerable people in England and

Wales to have their wills witnessed

via video link.

But the Law Society pointed out

that according to its research video-

witnessing was a minority sport.

The society, which represents

solicitors in the jurisdiction,

said that last year 95 per cent of

lawyers responding to a survey

said they had drafted wills during

lockdowns, but only 14 per cent of

those used remote witnessing.

Banish veil of secrecy

Sir Andrew McFarlane, the

president of the family division

of the High Court in England and

Wales, wants to rid his branch of

the courts of their “secret status”.

He told the Commons justice

select committee this week that

transparency should be regarded

as “the new norm”. But he said

being open while maintaining

the confidentiality of those

involved is “the tricky bit”. The

new transparency implementation

group, which McFarlane leads, will

be seeking answers.