Episode 5 Barristers

For almost 100 years our justice system has been a hidden world.

Cameras are banned in courts here.

Much of the work goes unreported.

Historically, our knowledge has been based on TV dramas,

artist impressions and newspaper headlines.

But now, for the first time,

one legal institution has allowed the cameras in.

This is the world of the barristers.

The public want to know what we do,

they are entitled to know what we do.

And we feel we have a responsibility and duty

to therefore inform the public of what it is we actually do

as part of the administration of justice.

For 15 months, we've filmed barristers as they prepare for cases

for courts in Belfast, Newtownards, Omagh and London.

For most barristers this is the ultimate court experience.

Our case is that there should be an exceptionality provision.

Right, so are you putting all your eggs into the exceptionality point?

When you get to this point, all the work you've done,

that's well and good, but it's out of your control,

you have to trust your counsel then to make the case on your behalf.

With thousands of cases and hundreds of barristers and solicitors,

this series is a snapshot behind the scenes.

The majority of Northern Ireland's barristers work out of

the Bar Library in Belfast.

Although they're all self-employed

they pay fees for the office facilities

including secretaries and research.

Thousands of letters and files come in here every day,

each envelope contains a legal problem

that the barrister is paid to deal with.

Suzanne Bradley specialises in employment law,

often working for the Equality Commission.

There's no legal aid for this type of law.

The Commission has a limited budget

so it can only take on cases that have an impact on all of us.

There were two envelopes delivered.

The bigger parcel contained what's called the Tribunal bundle,

that large bundle contains all the pleadings in the case,

all the documents,

and lastly any records

of the case management discussions that have taken place.

When I'm reading the Tribunal bundle

I'm looking to pick out the evidence,

whether it be in pleadings, whether it be in documents.

What I'm looking for is the evidence that will support my client's case.

Suzanne has a religious discrimination case.

Her client worked for a company that is mainly Brethren.

Gavin, pleased to meet you again. Vicky, how are you?

Suzanne's client says Brethren doing the same job as him

had different pay and conditions.

He says he was excluded from early morning meetings,

motivational e-mails and lunch gatherings,

as the faith does not allow non-Brethren to eat with them.

He believes work was discussed at these times

so he was denied opportunities.

The company denies discrimination so it's going to Tribunal.

This is a case were my client is making allegations

that he has been less favourably treated on grounds of religion.

He's alleging that he has been less favourably treated than

comparators who are members of the Brethren community,

who did the same job as him within the company

and they were more favourably treated in a number of respects.

So, Gavin, you will go first to give evidence.

When you are sworn or you have affirmed,

you cannot talk to anyone during the break, during the lunch breaks.

If you're kept in the witness box overnight you can't talk to anyone.

'I never thought that I would be involved in this sort of situation.

'It is very daunting but I felt that with the advice'

I'd been given, I needed to take my case forward

for anyone in the future.

Cases aren't always about people,

sometimes they're about bricks and mortar.

In 2012, Northern Ireland's Environment Minister

gave permission to flatten this building.

QC Ronan Lavery has been instructed to save it.

The Athletic Stores case, it is a Judicial Review

of the Planning Service's decision

to permit demolition and rebuild.

It's in a conservation area

and the Planning Policy and Guidelines say it should be treated

pretty much the same way as any listed building.

It's simply an economic argument that is being used by the developer.

If you apply profit

to whether an historic building should be demolished or not

I don't think there would be an historic building standing any more.

Our client, the Ulster Architectural Heritage Society,

thinks that this is an important case

because it sets a precedent

and any other listed building or building in a conservation area,

one could argue for their demolition

simply on the basis that the owner of the building

couldn't turn a profit on it.

There's added pressure,

the person spearheading the client's case is also Ronan's wife, Rita,

who is an architectural historian.

There are very few of these buildings left in the city,

there's only about eight of them, I think, in the city centre.

And so it's very important to retain those links,

those tangible links with the city's past.

It is very important that the conservation area

and the listed building policies are applied.

If they're not applied in this case then there is every chance

that they won't be applied in future cases

so it sets a very damaging precedent

and undermines the legislation and the policy

that sets out to defend the buildings like this.

They're seeking a judicial review

into the Environment Minister's decision,

making sure he properly followed the rules and regulations.

Ronan's being assisted in this case by his father, Michael Lavery QC.

The Department is judging the viability of the scheme

from the point of the view of a developer.

'My father didn't encourage any of us to follow law.'

For a building to be viable, doesn't necessarily need to be profitable.

No.

'He talked about work a lot and it was interesting

'but really we were given'

absolute free rein to do whatever we wanted.

Viable, it's like a life, I suppose, isn't it?

It's whether you turn the machine off or not for this building.

'He's been senior counsel'

for a good few years more than I have.

Since I took silk about a year and a half ago,

the cases with him become less and less.

This is one of the older cases

that has been going on for about five years

so we're still in it together.

Anyone can get a report to say that building...

Correct.

'It's not a difficulty,

'we just immediately change into professional mode

'and that's the way we discuss a case.'

Not as members of a family.

Every year in Northern Ireland,

hundreds of graduates compete for a career in law.

Only the top students get a place to train as a barrister.

Jason Elliott is one of the 32 offered the chance.

Every profession is competitive and we try to do the best that we can.

If you continue to do a good job and work hard

and do your best for your client and whoever instructs you,

you hope that you will continue to get the work but it is competitive.

Every barrister spends a year training at the Institute.

Knowing the law is one thing,

being able to argue your client's case in court is another.

Do you want to hear these or should we just go ahead and do it?

OK, let's go.

It is submitted that the respondent has acted within

the relevant limitation period as set out under statute.

You have to take your audience with you at every stage.

Martin is a very competent advocate

and any feedback that he gives is taken on board.

Once you sense that they're becoming frustrated, lost,

all of those human emotions,

you must address that to re-engage your audience.

Mock trials known as moots are a key training opportunity.

This is a very serious competition,

there's a competitive edge

between us at the Institute and the King's Inn down at Dublin.

The Institute has won it for the last two years

so we're trying to make it three on the bounce.

All stand.

The Eoin Higgins Moot is one of the most significant

as it's before three senior judges from Belfast and Dublin.

A writ was served on the PSNI on the 30th April 2013.

This is only four days after ICL had grounds for the proceedings.

'There are marks for answering difficult questions from the bench

'and there are very difficult questions

'being bombarded down from the judges,'

re-butting other points made by the opposing team,

all of that comes together to form an overall score.

The judges leave to make their decision.

And this year Dublin has the edge.

It's a vital lesson that every barrister learns -

you win some, you lose some.

Well, this experience has put me in far better stead,

it's given me more experience,

so when it does come to standing in court

and making a submission to a judge in the Magistrates Court,

or maybe to a jury this will help me

because it's dealing with the pressure

and being able to articulate what your client wants in the courtroom.

Ronan's working on another Judicial Review called the Brownlee case.

His client is challenging the Department of Justice.

In 2012 Raymond Brownlee

was convicted of false imprisonment and assault.

But he can't hire a new barrister to oversee his sentencing plea.

The problem is that in 2011, the Department of Justice,

in a bid to cut the criminal legal aid bill, brought in new rules.

There was no longer any provision

for exceptional or unusual situations.

The fee for this sentencing is £240.

It's estimated there's five days' work,

so it's less than the minimum wage.

This is a case about legal aid.

It's for an accused in a criminal case,

who fell out with his first legal representative.

The trial continued but the Judge felt it was appropriate for him

to be represented by a new legal team at the sentencing hearing.

We're challenging the rule structure,

we're saying they should be effective enough

to enable an individual to actually employ a lawyer.

Ronan's client is sitting in jail.

He's facing a severe punishment known as an indeterminate sentence.

This means he will serve a number of years before the Parole Board

decides if he can be released or not.

Ronan's arguing the preparation for this sentencing

will take five days of reading and research.

Digesting large amounts of documentation is a key skill.

I've always taken it as a rule of thumb that for reading documents

you are allowed three minutes per page.

What we heard today

was that has been changed to one and a half minutes.

It was suggested by someone in court

that we're now going to have to work twice as fast.

The fee allowable in this case

is simply for the hearing itself

and there's no provision whatsoever for the preparation time.

Preparation is everything,

and any person in any law school will say that.

Preparation is everything.

Ronan's client wins.

The Department of Justice

is ordered to provide proper access to a lawyer.

But that's not the end of it. The Department challenges the judgment.

It's make or break for Jason.

He's preparing for his last exam.

Pass, he can start his apprenticeship as a barrister.

Fail, it's back to the drawing board.

It's our final exam,

it's the culmination of our time at the Institute.

It's important to do well.

Preparing the file is very important as well.

It's not only useful for the exam on Wednesday,

but it could be useful for practice

because it includes a lot of procedural notes.

I'm feeling quite confident.

I've developed my notes from the start of the year.

I've kept notes for each subject that we've done

so I think I'm in a good position.

Although the file is only part of it,

we have to be able to look at the brief

and see what issues actually arise so we can make use of the file,

so obviously it depends on the day as well.

It's a nervous wait,

but Jason passes with flying colours.

It's the beginning of his professional career,

but before Jason earns a single penny

he has to fork out nearly £700 on his professional kit.

Come on over here.

OK, have a look at yourself in the mirror there.

It's a bit surreal, so it is, having it on for the first time.

But, no, I think it looks really well.

Can't wait to be called, having the shirt and the bands,

the collar on as well.

Yeah, really can't wait.

If it is pristine then you're seen as the junior Bar,

they know you have just been called,

the more tatty it is, they see that you've got experience.

I've heard a few stories about people sitting on them in the car,

wiping up coffee stains,

just generally throwing them about

and giving them a bit of rough handling, I'd say.

But I don't think I'll be doing that yet,

I'll let my parents see it first in pristine condition.

It's the day of the Judicial Review into the government decision

to allow the demolition of The Athletic Stores.

The result in this case will have far reaching consequences

as it will affect buildings not just in Northern Ireland

but across the whole of the UK.

A lot rests on this, this is a very, very important case for us.

When you get to this point, all the work you have done,

that's well and good, but that is out of your control,

you have to trust your counsel to make the case on your behalf.

You get quite nervous to see whether you will hear that presented

in the way that you expect that to be.

But it is an amazing feat to be able to distil that and to make the case,

as we could never do as clients, we do not have that expertise.

This morning we're starting to present our claim

for religious discrimination.

Particularly in a case as this one is,

which is supported by the Equality Commission.

I've given an opinion to them,

to say it's a case with a reasonable prospect of success,

so to that extent, yes, I suppose there is a degree of apprehension

and I hope that I will be proved right in that opinion.

The religious discrimination case is being heard in Belfast.

Fair Employment Tribunals are very different to courts,

they were set up as informal gatherings

to solve problems between employers and employees.

The whole ethos behind the tribunals was that initially

persons would be able to come in and represent themselves.

That's why it is set out in a much more informal manner.

It's not as informal as it was initially intended to be.

The same procedure of examining a claimant

in evidence in chief and cross examination applies.

The fact that you have to go through those same procedural steps

and cross examine someone,

really can make it equally as daunting as a court appearance.

The case takes five days to hear the evidence and legal arguments.

All the client can do is wait for the decision

that will be posted out in several weeks' time.

What were your views on how it ran?

'I'm very happy with the way it has ran.'

I don't think there's been anything left unsaid

regarding the whole case.

'It's very nerve-racking.

'And it's very intense,

but I just wanted to put my story across

the best way I could to the panel

and I believe I did so, so I'm happy with my evidence.

Previously Ronan successfully represented

his client Raymond Brownlee

when he challenged the Department of Justice about access to legal aid.

But that decision was taken to the Court of Appeal

and Ronan's about to hear the result.

We're down to take judgment in the Brownlee legal aid case.

You want to win because it's an adversarial system,

but you've a certain detachment as well,

a professional detachment,

because you don't have a personal interest in the outcome of the case.

It's somebody else's interest at stake.

This time the judges don't agree with Ronan's arguments.

We lost.

The basis of the decision

was that once our client had dismissed his counsel

in the criminal trial, that he wasn't entitled to new counsel.

But it doesn't end there.

Ronan's client is given permission

to go to the highest court in the UK, the Supreme Court in London.

Ronan has the morning to set out his arguments

as to why he feels the Court of Appeal in Belfast is wrong.

The Supreme Court will make the final ruling on the issue.

For most barristers this is the ultimate court experience.

This is my first time in the Supreme Court. It's a challenge.

But you should have the skills

to deal with this from your experience in other courts.

My expectation is that it will be

a little bit like the Court of Appeal, only up a level.

I don't know. I don't know.

Cameras are not banned in this court so proceedings can be filmed.

There's going to be five Supreme Court Justices.

We will present our appeal first.

We've already made written submissions

so it will be a question and answer session by the five judges.

Our case is that there should be an exceptionality provision.

Right, so are you putting all your eggs

into the exceptionality point,

and if not what's your fall back position?

There should, in line with other jurisdictions,

be an exceptionality provision.

Yes, but suppose we are against you on that?

If you are against us on that

then one might have to look at the facts of this individual case.

'To be debating and arguing a topic

'before five of the finest'

legal minds in the country is a privilege.

One has to simply look at the rules

and say whether they give effect to the 1981 Order.

'The Brownlee case goes to the heart of the criminal justice system'

and unless you're going to make

everybody in society millionaires overnight,

the State is going to have to provide funding to those people.

Thank you very much.

Mr Attorney.

Ronan's opponent, the Department of Justice

is represented by Northern Ireland's Attorney General.

A and B seem to me

to concentrate one's mind on, is it going to be more work?

Yes, well...

That's the point in this case.

The evidence is that it probably wouldn't take a great deal of time

to come to grips with the case.

How do you measure time and skill

if you leave out altogether

an examination of individual cases?

But we don't, My Lord,

it's done by reference to the size of the case,

the physical size of the case.

So you simply look at the number of pages and that's that.

There's no room for an exceptionality provision ever?

Yes, because provision is already made for it in general terms.

Is there a rational connection

between having regard to the cost of public funds

and saying that we will not under any circumstances

allow any exception to these figures?

Yes, My Lord,

because the Justice budget of which the legal budget is a part,

has to contend for space

against a huge number of other competing demands.

Yes, of course.

Ronan's client has been sitting in prison

awaiting sentence since June 2012.

The judges announce an interim decision

so that his sentencing can proceed.

We grant permission to appeal,

we allow the appeal to the limited extent

of declaring that the current regulations

are unlawful to the extent of having,

not including a provision which,

to its credit the Department of Justice

has conceded in paragraph 3.6 and 3.16.

Well, it went very well, we won.

You never count your chickens before they hatch

but we had certainly expected a positive outcome.

I didn't want to say that before we went in,

but certainly in the back of our minds

we were confident about our case.

What I enjoyed was the informal, discursive environment

where really it was a collaboration

in terms of trying to get to what the law is or should be.

Rather than something necessarily adversarial or combative.

Overall, tremendous experience.

Jason's at the Royal Courts of Justice

for the opening of the New Legal Year.

Along with other new barristers he's taking part

in a formal ceremony admitting him to the profession.

Then there's a year of apprenticeship known as a pupillage

when Jason will learn the craft

as he works alongside a senior barrister known as a master.

There's an atmosphere of excitement,

it's been a long summer for all of us, really.

It's the start of a new chapter,

we've done a lot of our academic work,

through our degree of law, then the Institute as well,

so this is the start of our career, essentially.

31 of you are here today for two purposes.

One, to be admitted to the degree of Barrister of Law,

the second is to be called to the Bar.

That's the start of our pupillage,

the first six months are non-practicing.

Mr Jason Elliott.

If you go into anything else, you start as a trainee

and you shadow someone more senior than you

and that's the way it works at the Bar.

You shadow your master

and you learn the tricks of the trade, so to speak.

If you go into any biography of any barrister,

one of the first things will be their year of Call,

and it's the thing that every barrister will remember,

not only career wise but also as a personal goal.

I'm going to sign two books,

the first is the Roll of Barristers in Northern Ireland

and the second is the membership

of the Inn of Court of Northern Ireland.

Every barrister that gets called signs the book, signs both books.

That's me signed the books,

now off to go down to the Nisi Prius

to get called by the Lord Chief Justice.

The new beginning of the legal year is marked by a formal procession.

As the representative of Northern Ireland's barristers,

Mark Mulholland QC attends.

The judges, and Mark as Bar chairman, pay respect to each other

to highlight the profession's roles and duties in the justice system.

This is a new legal year, this is the new term starting.

First of all we have our call to the Bar of our new pupil barristers.

And the formal procession led by our Lord Chief Justice

and the High Court judiciary in advance of that call.

I was called in this term exactly 20 years ago,

this very week,

and where has 20 years gone?

It has absolutely flown.

Certainly for those who are now coming to the Bar,

there are perhaps different challenges than I had to face,

greater numbers, greater competition

but you would like to think with that

there is a high quality of young barrister

who is highly motivated and committed and dedicated

to start at the outset of this great profession

and to work very hard and succeed at it.