William Clegg QC: Under the Wig
This is a transcript of the Podcast Episode on this website when William Clegg QC spoke to Baines Law. It can be found on this link Podcast – Barry Baines
BARRY BAINES
Welcome. This is Barry Baines from Baines Law, a legal miscellany, where we regularly podcast about cases and legal issues, as well as talking to professionals and others who have experience of our legal system.
Our guest in this episode was called to the Bar of England and Wales in 1972, took silk in 1991 and retired from practice in 2019 although he continues to sit as a Recorder of the Crown Court. He was Treasurer of Grays Inn in 2019. He has taken part in more than 100 murder trials working on high profile cases, such as the shooting of Jill Dando, and securing the acquittal of David Duckenfield on charges of manslaughter, the police officer in charge at Hillsborough football stadium. We extend a warm welcome to the author of Under the Wig, William Clegg QC.
Bill, it’s a great pleasure to be able to talk with you today. Thank you for giving up your time to speak with us. Firstly, you have a lifetime’s experience in the courts. May we start with the backlog of outstanding cases in our criminal justice system? We are told it stands as something like 60,000 cases in the Crown Court and approaches 350,000 in the magistrate courts. I wonder how justice is going to be done in some of these cases, where there are lengthy delays before the case is eventually brought on for trial. Do you have any views about this and how this backlog can be tackled?
WILLIAM CLEGG
Well, I certainly do have some views about it. The criminal justice system is in crisis and this backlog is undoubtedly resulting in people waiting far too long for sentence and for trial, and that is to the huge disadvantage of both victims and those accused of crime.
When sitting recently in the Crown Court as a Recorder, I’ve had to sentence people who pleaded guilty over a year ago to offences in the magistrates’ court who were sent up for sentence. But because of the pandemic that has been delayed, and the old phrase “Justice delayed is justice denied” very much applies in those cases. It’s very difficult to punish somebody for something that they did 18 months ago and admitted 18 months ago, and have then had it hanging over their heads for all that time when they’ve had to get on with their life.
BARRY BAINES
And some trials are taking up to two years to take place aren’t they?
WILLIAM CLEGG
And more – and more. I’m doing one that is a hangover from before I retired when I said at the time I would not abandon any client I had. That trial has been put off from 2019 to later this year, 2022, and relates to an incident that took place in 2018. So that’s four years.
BARRY BAINES
And that’s ridiculous for defendants and for witnesses and victims, isn’t it?
WILLIAM CLEGG
It’s absurd.
BARRY BAINES
I mean, in November the Under Secretary of State for Justice told the House of Commons that the spending review, which provided £477 million for criminal justice, would enable the Crown Court backlog to be reduced to 53,000 by 2025. Even the Lord Chief Justice conceded a few days later that was not much.
WILLIAM CLEGG
It’s very little progress, and 53,000 strikes me as still being a lamentably low objective.
BARRY BAINES
So do see any way forward with this?
WILLIAM CLEGG
It is very difficult. Of course, the problem is not of the lawyers’ making and it’s not all down to COVID either. This was a problem before the pandemic and the pandemic has just exacerbated it. It has its roots in underfunding before the pandemic and courts were empty because there was no money available to pay a judge to go into that court and sit, and no money to have an usher or a clerk. So court centres of six courts were sitting only four, and this had been going on for many months before the pandemic.
BARRY BAINES
It’s not improved now, has it, really?
WILLIAM CLEGG
There are attempts to improve it but because of the need to have people socially distanced it was not possible for all courts to sit with juries after the immediate lockdown ended. In many court centres you needed two courts to do one big trial. So that reduced the capacity of the courts by 50% overall. In addition to that, jury retiring rooms are too small to allow people to socially distance in them. So they’re having to either use other larger rooms in the building or, again, reduce the number of juries so that they can all retire safely when it comes to deciding verdicts. So these are problems. They’ve tried to set up some Nightingale Courts. Some have been set up and doubtless they will help a bit, but there are very few of them.
BARRY BAINES
Do you see the Crown Prosecution [Service] reaching a stage where it’s going to be dropping cases in order to ease this backlog?
WILLIAM CLEGG
I think they’re all already doing it. The cases they are dropping though should probably never have been brought in the first place. There is a slightly more rigorous approach being given now to old cases to see whether it really is in the public interest to try some minor case many years after the alleged crime took place. We are seeing a more rigorous approach to that which is a good thing, in my view, but I don’t think there’s any move to drop cases that are serious or, or where there is clear evidence of a defendant’s guilt.
BARRY BAINES
Thank you. I wonder if we can move on to the sentencing powers of magistrates. This has been on the Statute Book since 2003, but there is now a proposal to implement the provisions of that Act which will enable magistrates to increase sentences for either-way offences to 12 months’ imprisonment. Do you consider that to be a good move? And, secondly, is it likely to assist the backlog problem?
WILLIAM CLEGG
I think it’s probably a good move. Magistrates are far more professional than they were. Many of them are, in fact, professional judges sitting full time; and those courts where there are lay magistrates have much better training than they did historically. And, of course, there is always the right of appeal for somebody who has suffered a sentence that is considered by them to be unjust, to the Crown Court for review.
So I think it probably is a good move. Whether it will have any significant effect on the backlog, I rather doubt. Indeed, one of the areas that gives courts most concern is the backlog of appeals from the magistrates court to the Crown Court where only last week I had to deal with somebody who had pleaded guilty in the magistrates court and had to wait nine months for his case to be listed in the Crown Court. This change will only increase that potential delay. So I would be surprised if it significantly reduced the backlog.
BARRY BAINES
It might also, I take it, increase the number of appeals against conviction in the magistrates’ court. And, of course, the procedure in the Crown Court is a complete retrial in those circumstances, isn’t it?
WILLIAM CLEGG
It is; and it would inevitably have that effect, and I suspect very much increase the appeals against sentence that do take maybe half an hour or 45 minutes each.
BARRY BAINES
So that brings us naturally, I think, to legal laid cuts and the effect they’re having on the ability of defendants to get proper representation on the one hand, and young barristers achieving inadequate remuneration, on the other; although I think they’re really two sides of the same coin. What effect do you think this is having on the rule of law in this country?
WILLIAM CLEGG
It goes very deep into what we regard as important in our society. When I was in practice, I travelled quite extensively to third-world countries and other jurisdictions and saw how their courts operated. I was very impressed that the poorer the country, the more spick span and smart they made sure their courtrooms were, and the more pride they had in their system of justice. Our courtrooms are a disgrace. They have not been maintained for decades, lifts don’t work, loos are blocked, carpets are threadbare, roofs leak. None of that do you find in the third-world where everything is spick and span and maintained well, and it is that attitude that somehow puts justice at the very bottom of the priorities that, in my view, strikes at the attitude “Well, there are no votes in making sure that criminals get a good defence and there are no votes in making sure fat lawyers get large salaries.” The truth is lawyers doing legal aid do not get fat salaries. Young barristers are very poorly paid if you work it out, in some cases, not as much as the minimum wage for a day’s work.
BARRY BAINES
Some of the fees are remarkably low, aren’t they?
WILLIAM CLEGG
They are staggeringly low. I mean, they’re an insult, but there is a huge commitment amongst the young barristers to keep the system going; and, when all is said and done it is a very satisfying and fulfilling job, very interesting, and one that I certainly loved for 50 years.
BARRY BAINES
Yes, I think any of us who’ve been in the criminal courts as advocates would absolutely agree with that. I was going to say, against this background how do you see the future of the bar evolving? I’m sure there will always be a need for highly effective advocates, but do you see them being drawn away from the criminal bar into other more remunerative areas?
WILLIAM CLEGG
I don’t think so. Oddly enough, the attraction of the criminal bar does remain high, and although the number of people trying to get pupillage in criminal chambers has fallen, there are still hundreds of applicants for each pupillage in criminal chambers – pupillage being, of course, the sort of training that every barrister has to undergo before they are able to practise unsupervised. In my own chambers we used to have nearly 600 applicants for four pupillages. That has now fallen to about 400, but there are still young men and women who see the criminal bar as their future. My advice has always been that if you really, really want to do that sort of work, then you should embrace it and do it because there’s nothing more satisfying surely than working in a job that you actually enjoy. Not many people have that luxury, and I think barristers have that opportunity to do so.
On a more practical level, my advice to young barristers is if you are doing criminal law, try and develop a small specialisation that will provide you with additional income that will effectively subsidise your legal aid rates. And I have in mind, for example, doing extradition, health and safety, regulatory work, that sort of thing, which my chambers has moved into doing a great deal and that mitigates the impact of the low legal aid rates, but that is not available to all barristers by any means.
BARRY BAINES
So far as the public are concerned, do you see any danger of a two-tier system evolving for those who can afford it and those who cannot?
WILLIAM CLEGG
Well, there is already a two-tier system, in fact, and to some extent always has been. There is no doubt at all, for example, in the area of serious fraud, it is very difficult indeed to have an adequate defence financed by legal aid. Nearly all of the cases that I was involved in the last 10-15 years of my practice were funded either by companies or by insurance companies, because people were prudent enough to take out policies during their professional career working for a company that covered legal expenses as, and when they were accused of crime, or alternatively companies have stepped up to the plate and paid for the legal expenses of directors who’ve been accused of mismanagement in many cases. So, there is already a two-tier system and, to some extent, always has been. The difference is that in the old days the legal aid defendant would still be able to get a good defence with high quality advocates, and there are now more and more cases where one doubts whether that’s possible.
BARRY BAINES
Lord Bingham, who you cite in your book Under the Wig as being the greatest judge of our time – and I’m sure that’s something we can absolutely agree about – said that the Bar is where the magic happens. What advice would you give to someone contemplating a career at the Bar, particularly someone who at this stage might not be so sure of his or her advocacy skills?
WILLIAM CLEGG
Well, I would say that they shouldn’t worry too much about their advocacy skills because there’s a great deal of advocacy training done by the Inns of Court and they will, in the vast majority of cases, turn out competent advocates. Having said that, the the Bar is a profession that has certain risks attached to it that you will not find necessarily in a solicitor’s office: there’s no sick pay, no holiday pay, no maternity leave, no paternity leave and the like. I think it is a profession that you should only go into if that is really what you want to do and if you really can’t think of living life without at least giving it a try, then you should do it. But if you are uncertain then it’s perhaps not the profession for you because it’s a profession for people who are certain that that is what they want to do.
BARRY BAINES
There is certainly a great thrill in actually doing it, isn’t there?
WILLIAM CLEGG
Oh, a fantastic thrill. There is nothing quite like advocacy in a packed court room that you know is going well,
BARRY BAINES
Thank you. I wonder if I can move on to sentencing. That is something which at one time was relatively straightforward with most court users knowing the tariff sentence for offences. It seems to me it has become incredibly complex. Crudely put, judges are now required to assess whether an offence comes within various categories in order to fix a starting point, then take into account aggravating and mitigating factors and make percentage deductions for guilty pleas according to when the guilty plea was indicated. Fixing minimum sentences to be served when the sentence is pronounced as life is another minefield. Has this complicated system actually achieved anything in your view?
WILLIAM CLEGG
I think part of it has achieved something and achieved quite a lot. Before the Sentencing Council sentences for the same crimes varied significantly across the country, and a person committing a burglary, say, in London would receive a completely different sentence from somebody who had done the same crime in perhaps Newcastle. What the sentencing council has achieved is a parity of sentencing across the country which must be a good thing. The allocation of individual crimes into categories A, B or C, is not very difficult and there are sometimes disputes about it, which need to be resolved, but it does achieve a high measure of consistency, which I think is a good thing. What I think is not so good is that the disposals available to judges now are complex and covered by a huge range of statutes. It is no longer a simple process to decide what is the appropriate final sentence once you have got your sentencing range identified from the guidelines.
It’s not just the length of a prison term; it’s all the ancillary orders that can be made, many of which I’m sure do much good: ordering people to undergo treatment for alcohol dependency, perhaps taking treatment for drug dependency and the like, are all covered by a multitude of different statutes. I think there has been a proposal – I’m not entirely up to date with this – to try to bring all sentencing for once under one statute. If they ever achieve that, it will be a significant step forward
BARRY BAINES
It will be something in itself, won’t it, if they give Parliamentary time for that?
WILLIAM CLEGG
Yes.
BARRY BAINES
That’s the main problem I suspect.
WILLIAM CLEGG
I’m sure it is.
BARRY BAINES
I’m sure you remember, as I do, that there was a time when far more business was despatched in the working day of a criminal court. I wonder if we’re moving in the right direction.
WILLIAM CLEGG
Yes, there is no doubt that fifty years ago cases were done much more quickly. I think that’s probably a reflection of life generally and the need now to dot the Is and cross the Ts that causes cases to be slightly more protracted. There is, of course, a great deal more crime in the sense of a great deal more cases than there were fifty years ago and crimes are now being prosecuted that would never have been contemplated that time ago. I mean, most fraud cases that we have, the big fraud cases would never have happened even thirty years ago. They just hadn’t got the power to investigate them.
BARRY BAINES
Yes, I suppose this is particularly true of investment type offences, if I can put it that way, insider information and things like that, which just weren’t criminal offences.
WILLIAM CLEGG
Absolutely. I mean, insider dealing, and when one thinks of cases like the LIBOR prosecution of Barclays traders. These crimes would never have been investigated thirty years ago. They would not have had the ability to do so.
BARRY BAINES
Bill, Under the Wig is a great inspiration for anyone wishing to join the legal profession as indeed have been your remarks today. Thank you so much for joining us.
WILLIAM CLEGG
You’re very welcome.
BARRY BAINES
Thank you for listening to Baines Law. Listen out for future podcasts where we will continue to discuss issues of interest to the legal community. If there is a professional perspective that you would like to share, get in touch via our website at www.barrybaines.com. You can also follow us on Twitter @baineslaw or @barry_baines. We look forward to presenting to you again very soon on Baines Law.