Looking the part

The tradition of judges and barristers wearing wigs and robes is under threat like never before.

Victoria MacCallum hears whether the case for abandoning such garb measures up

Fashion gurus in women's magazines will have you believe that what matters is not what you wear, but the way you wear it - they constantly urge readers to strike out from the norm and wear clothes which suit them, rather than to follow slavishly the accepted trends.

Perhaps Lord Irvine has been heeding the advice of television fashion experts Trinny and Susannah (of BBC's 'What not to wear'), because one of his last acts as Lord Chancellor was to strike a blow against the centuries-old tradition of court working dress.

Last month, the Lord Chancellor's Department (as was) launched a consultation paper on court working dress, asking what judges, lawyers and court staff should wear in a modern courtroom, and trying to discover whether a dress code introduced in 1714 - the uniform of wig, black gowns and bands was set when the country went into mourning for Queen Anne - is really the most appropriate garb for 21st century justice.

The public seems to have its doubts.

A survey of 2,000 people carried out by the department prior to the launch of the consultation paper found that 64% were in favour of scrapping wigs for lawyers in court, claiming they were intimidating and old-fashioned, and 35% wanted to get rid of robes in favour of suits.

Just 34% wanted to keep wigs and robes for lawyers, claiming that they gave a more traditional and authoritative appearance, but this rose to 47% wanting judges to keep their current dress.

Unsurprisingly, barristers are in favour of keeping the status quo.

The Bar Council claims: 'In court, barristers have long been identified by the wearing of a wig, and for the public and media they symbolise the profession of barrister.' More tellingly, it goes on to say that wigs 'contribute to appropriate gravitas during court proceedings', and it is this which appears to be the main argument in favour of keeping wigs attached firmly to barristers' heads.

Lesley Everett, a personal image development coach who specialises in helping individuals and companies brand themselves through their appearance and dress, says: 'I'm strongly in favour of retaining wigs in criminal courts because they symbolise authority and lend gravitas to the situation.'

'The British criminal justice system is a traditional one, and all lawyers and judges need to portray authority in these situations.

Non-verbal communication, such as the way people present themselves and how they dress, is extremely important, and often more so than what you actually say.'

Dignity and solemnity are the only real points in favour of keeping the sartorial status quo - as Mark Humphries, a litigation partner at City giant Linklaters and a former chairman of the Solicitors Association of Higher Court Advocates (SAHCA), points out: 'The anonymity argument [that wigs should be worn as a disguise to prevent retribution from family and friends of convicted criminals] went out the window when legal directories began comparing the abilities of criminal counsel.'

Brian Woodhams, a solicitor-advocate and partner at E Rex Makin in Liverpool, agrees that wigs 'add something' to the proceedings in criminal courts.

'When you think about it, sitting in 17th century fancy dress is ridiculous, but people have got used to it and it doesn't seem out of place,' he says.

'It gives a formality and a solemnity which is appropriate to the proceedings.

People may say it is archaic and intimidating, but in a criminal court you don't always want people to relax and be at ease.'

The problem many lawyers have with the system is less whether wigs should be worn or not, but more who should be able to wear them and the effect this disparity may have on juries.

Mr Humphries claims that the practice direction stating that solicitor-advocates should not be allowed to wear wigs in court is 'inexplicable', and 'should not have happened'.

He says: 'The difference is of no concern to civil practitioners, but in the Crown Court it creates confusion and often needs to be the subject of specific comment to the jury.

It can only be a matter of time before an appellant argues that where the prosecutor was a barrister and the defence advocate a solicitor, the jury may have given more weight to the arguments of the prosecutor because they did not understand why he wore a wig and the other did not.'

Mr Woodhams agrees strongly.

'Not being able to wear a wig has caused me not to act in a number of criminal cases because I've felt inferior,' he explains.

'Juries are very diverse - many are unfamiliar with court conventions, and what they see in court is the judge, barristers and even clerks all wearing wigs.

If there is just one little solicitor-advocate there not wearing a wig, they automatically assume that he or she is less important and less qualified than the others.'

One of Mr Woodham's colleagues recently appeared as a solicitor-advocate at Mold Crown Court, and was asked by his concerned client why he was the only person in court - bar the ushers - not wearing a wig.

'The client was very anxious about the disparity, and it is a very difficult issue to explain.

We have the same qualifications and experience as barristers, so why should we be disadvantaged in this way? Why can we not have a level playing field?'

This line is also taken by the Law Society.

President Carolyn Kirby says: 'People should feel confident that their case will obtain a fair hearing, and we believe that all advocates in court should be treated the same way.'

Michael Caplan QC, a partner at Kingsley Napley and current chairman of SAHCA, is unsurprisingly in the same camp.

'The association's view is that there should be parity of dress across the professions, whether that means everyone wearing wigs or no one wearing them,' he says.

'There are arguments in favour of both situations, but SAHCA's view is that there should be a uniform of some sort - whether a jacket and tie or a gown - for all.'

However, he goes on to add that the profession 'needs to draw a line under this debate.

Our duty is to the client and the court, and we need to move on to address a number of other challenging issues within the justice system'.

This point is valid, and one which is often forgotten under a mass of horse hair-fuelled invective and assumed professional slights.

The Bar Council maintains that there are more important problems within the criminal justice system to worry about, and a spokesman says constant discussion of the court dress issue is 'a waste of time'.

Mr Humphries notes: 'The issue of court dress has received more prominence in recent years than it should have.'

To many legal aid practitioners struggling to stay afloat, or City lawyers facing cutbacks and an international economic slowdown, the issue of what colour robes judges should wear and who should have the right to have the remnants of a dead horse perched on top of their head, seems to be fairly irrelevant.

However, the former Lord Chancellor's attempt to address the issue was part of his wider aim to drag the court system kicking and screaming into the new century and make justice more accessible to all.

And for that lawyers should be grateful, even if many of them would happily dispense justice dressed in shorts and T-shirts.