James Morton looks at the value of silk, no-win situations for the defence, so-called canteen culture and the perils of buying fresh meat

The row over the silk system continues with a recent letter published in The Times suggesting that its abolition will damage the ethnic minority members of the bar by depriving them of a goal and status symbol.

In a recent issue (see [2003] Gazette, 30 October, 20), Julian Lew, a silk partner at City law firm Herbert Smith, suggested that judiciary is keen on its retention because it keeps aggressive young barristers from locking horns with judges or their opponents to prove themselves.

The thinking seems to be that if they are disrespectful or too challenging this will count against them ten years down the line when they apply for silk.

One eye on the case and the other swivelled towards the Lord Chancellor.

I have never been a great fan of the silk system.

It has, as many have pointed out, the smell of the old boy about it.

Indeed, in many cases, far from being a mark of quality, it has simply meant a better chair in El Vino's.

If one could guarantee that the appointment was indeed a mark of quality that is another matter.

Unfortunately it does not.

Many elderly silks who should have been long pensioned off have been cynically used by their clerks to take cases far beyond their declining powers.

Some have had difficulty identifying their client from the papers in front of them.

One, I recall, defending a Mrs Smith, said as he began the consultation: 'Tell me before we begin, who is this Mrs Smith whose name appears so frequently throughout the depositions?'

I have never been convinced that a poor silk is preferable to a leading junior.

True, in a case where there are silks littering the benches and just one junior for one of the defendants, then the judge has, in the past, tended to lean on the junior, but this may well have had the effect of getting the sympathy of the jury.

The advice given to diners is that in a town with only one Michelin-star rated restaurant, it is sensible to eat in the next best restaurant.

This approach may apply to silks.

The non-star rated restaurant and the non-silk may try harder.

That, after all, is what the client wants rather than having a fancier frogging on a waistcoat and some initials after their man's - or, indeed, woman's - name.

***

The Serious Fraud Office (SFO) has taken me to task over my comments on the Hinchcliffe case, in which the accused's counsel was Ken Macdonald QC, now the new Director of Public Prosecutions (see [2003] Gazette, 11 September, 19).

The SFO asked the Attorney-General to seek a reference when Hinchcliffe - who had already served a sentence relating to the same company - pleaded guilty at a second trial in return for a non-custodial sentence.

Apparently the SFO - while knowing that the judge intended to impose a non-custodial sentence if Hinchcliffe pleaded guilty - never committed itself not to appeal.

This seems to be a no-win situation for the defence.

What is the point of a defendant pleading guilty if he knows the prosecution may appeal if he does not go to prison? Now speeches in mitigation will have to be made with one eye on the judge and the other swivelled towards the prosecution.

***

One of the more interesting aspects of the racism revealed recently by the BBC among trainee police officers is the fact that many of their colleagues must have heard their language and did nothing about it.

It is the same with police corruption.

For every corrupt officer there must be at least another ten who knew of the offending officer's behaviour but kept silent.

The reasons advanced are many - a wife and children to support, unpopularity as a whistleblower, even fears for one's own personal safety.

While understandable, they are not really valid.

The only way for corrupt and racist officers to be driven out of the force is for someone to take a stand.

It is said that the boys-together atmosphere has been eliminated, but it clearly has not.

Senior officers might well look carefully at the so-called canteen culture.

Meanwhile it appears that charges have been levelled against the investigating reporter.

The new Director of Public Prosecutions might do well to make one of his first acts the offering of no evidence.

***

Newspaper reports at the end of October of how a large supermarket charged an old age pensioner for a bag of frozen peas she had used to ease the pain in her ankle after a bottle had fallen on it, reminded me of the days when I prosecuted for a very small chain of grocers.

The store detective had seen a lady pick up a piece of steak, put it under her dress between her thighs, and waddle penguin-like out of the shop.

When she was tapped on the shoulder the meat fell to the ground.

There was no claim for compensation and I asked the detective what happened to the meat.

'We rinsed it and put it back on the shelf', was the reply.

James Morton is a former criminal law specialist solicitor and now a freelance journalist