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Q.C.'s ability to express himself clearly raises many questions.

Publication: 
Nigel Morris-Co...
chiefofficersnet

Simon Spence wants to be the next Vice Chairman of the Criminal Bar Association of England and Wales. Not only does he stand on a platform of disparaging solicitors, he does it in such a way that he felt the need to clarify his comments. Surely an accomplished advocate should be expected to be clear the first time, to say what he means and to mean what he says? Then the next question is how can someone who fails those basic tests, with a failure he himself demonstrates by his attempts at correction, can be trusted in a position of high-office within a major professional body?

An invitation to vote for the offices of Chairman and Vice Chairman (they refer to furniture but we are too grown-up to accept that nonsense) is published at http://mailchi.mp/criminalbar/....

It links to the manifesto published by Mr. (they leave out his description but we are too traditionalist to do that) Simon Spence, Q.C. (they leave out the full stops but we are too literate to adopt that practice in relation to such an honoured and honourable title) . Read the notice and count the grammatical, punctuation, vocabulary and other errors if you've got a couple of moments to spare.

The manifesto does not open in our browser: it downloads for opening off-line but we acknowledge that may be due to our security settings. Click https://www.criminalbar.com/fi...

The document reads, in part, like a political manifesto : we do badly because others do well, so we must take them down a peg or two, it seems to say.

It's a shame that he felt the need to stoop to such levels for he makes some excellent points without the need to kick solicitors in the tender parts.

For example, prosecution advocates instructed by the Crown Prosecution Service accept briefs under a contract that none would willingly accept from a private client. For example, there is a "page count" element to payment which, because of the way the CPS delivers its briefs, including supplemental briefs and other supporting documents, means that the page count does not properly reflect the number of pages eventually delivered.

Secondly, the brief fee covers preparation and the first day of trial, as is normal, but it also includes a second day if required. This is wholly unacceptable and the Bar Association, if it was that which accepted this practice as part of the master agreement, made a serious error. The bar works by barristers being fully engaged and the unpaid second day means that barristers automatically take a pay cut when working for the state as against working for private clients.

But then he gets nasty: he says that there need not be extra funding, but that the existing cake can be re-allocated.

This need not involve an increase in the budget, simply a re-allocation of funding away from the litigator’s fee, when they are often paid more than the advocate for little more than instructing counsel and inviting them onto the [centralised criminal courts computer system]. It is quite wrong that the postman gets paid more than the person to whom he delivers the post and who has to read and digest it.

There is muddled thinking. He began criticising the payments under the state funding of prosecutions but part way through a sentence changed his line of attack to bring in publicly funded defence work. "the payment for ALL hearings, a proper daily refresher and proper reward for early preparation."

Let's be clear: there are some general practitioners who take on work they are not competent to deal with and who lean on counsel far more than they should. All practitioners have done it occasionally and all know those who do it habitually. So do counsel and their clerks and in the 1980s and 1990s, it was not rare for certain solicitors to find that some chambers did not want to accept instructions from them.

But they are the minority: criminal defence solicitors are far more than simply postmen. They are the backbone of a profession that has, as mainly publicly funded, come under more and more pressure to work unsocial hours, to deliver service that is far above that in almost any other area of legal practice, to handle difficult, sometimes violent clients and to identify, locate and interview witnesses who, often, would rather talk to anyone else except the police. Solicitors have to get defendants and witnesses to court (in my day, once telegrams were abolished and before mobile phones, we resorted to having flowers delivered with a hearing reminder on the card) and they are the ones who face personal costs orders if their client or a witness does not turn up. Solicitors have expensive offices to run, a far more complex organisation than a barrister needs or even has. Solicitors do all the accounting, they are the ones who have to go to Court to justify their bill, a process called taxation, at which they must also defend the barrister's fee, even when it has received pre-clearance. It is solicitors who carry the burden of all the expenses throughout a trial, without a guarantee that they will be paid in full or at all. Most importantly, it is solicitors who test the case, of both the prosecution and the defence, before instructing counsel so that the brief may point Counsel in the right direction. And they do this knowing that budgets are continually reduced and their pay this year will almost certainly be less than last. Many simply surrender and go and do something else so they can pay the bills at home.

Spence's comments are inflammatory and belie both an ignorance and a hostility regarding solicitors and their activity.

If he never sees another brief, it will be his own fault.

And if his own profession turn on him and do not vote for his candidacy (which is unopposed, unfortunately) he has only himself to blame.

After Zoe Gascoyne, the Chairman of the Criminal Law Solicitors’ Association, wrote an open letter to Spence (see https://www.clsa.co.uk/index.p...) he, quite bizarrely, turned to LinkedIn to post his reply. She addressed him as "Dear Mr Spence, QC" and he addressed her as "Dear Zoe." There, there, little girl, don't get your knickers in a twist, he seems to be saying by that disrespectful opening.

Then he went on, and on, until he got to the precise point of his earlier comment. "The point I was seeking to make is that fewer cases proceed by way of committal through the Magistrates’ Court than was the case once and that the introduction of the [courts computer system] has removed the necessity of solicitors physically briefing counsel by the dictating of instructions and the preparing of a physical paper brief, a task which can be extremely time consuming."

Er, hang on, Mr Spence. You are an advocate. You are one of the country's most senior advocate, honoured with the title Queen's Counsel (which is why the full stops are needed in Q.C., in case anyone was wondering) and if anyone is supposed to be able to properly structure and present an argument at the first try, it should be a Q.C. To say "the point I was seeking to make.." is to make an admission that you don't do that. Why, then, if I were still in practice, would I instruct you knowing that, even in relation to your own matters, you fail to properly prepare and present your arguments and present them so badly that you have to admit you completely missed the mark.

And then, (prepare to be outraged or to laugh so much you wish you were wearing an adult nappy) he actually tries to pass the blame. "It has clearly led to misunderstanding as to what my position is." That implies that the person reading it misunderstood when in fact, if his later statement is to be believed, he misrepresented, perhaps inadvertently, his own position. Not my fault, guv, he readers might say with full justification.

In his reply to Miss Gascoyne, Spence says "If my ‘postman’ analogy was inapt then I unreservedly apologise."

Inapt? Shame the error count was on a different document: almost all solicitors would consider that a spelling mistake.

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Nigel Morris-Cotterill is a retired solicitor and author of Sun Tzu and the Art of Litigation

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