The Lord Chief Justice is looking again at the issue of court dress. For many solicitors who feel demeaned by their different attire, it cannot come a moment too soon.
Richard Burns, a barrister at Ropewalk Chambers in Nottingham, inherited his wig from his barrister-grandfather and has described his heirloom as ?a greasy, malodorous, nicotine-stained wig that had clearly sat far too long on the head of a greasy, malodorous, nicotine-stained barrister?.
The horsehair has since been washed, but over the years the barrister has not grown any fonder of it or, for that matter, of wigs in general. Does he like wearing it? ?I always feel that the damned thing is sitting too far back on my head, slipping too far down the front or my hair?s showing underneath,? he says. Nor is he a fan of gowns. ?I?ve never learnt to tie the bands at the front ? and it?s always been a struggle. When you have something on your mind, you?re in a hurry, and you want to get to a conference with your client but you have to take ten minutes to robe, you can?t help but feel it?s bloody pointless.? Now when the barrister sits as a recorder on the Midlands Circuit, he does not bother with the get-up, nor does he expect other lawyers to.
Mr Burns and many lawyers from both sides of the profession are grateful that Lord Chief Justice Lord Phillips has begun another consultation on court dress, this time with the senior judiciary. Finally, we may see wigs consigned to the dustbin of history in civil, commercial and family cases ? but not the criminal courts. Lord Phillips is rumoured to back a simple European-style robe, sans wig, instead of the current regalia.
It has been more than a decade since solicitors started to use higher rights of audience, and the debate about the perceived inequality of court dress has rumbled on alongside it. ?It is no secret that solicitor-advocates with rights of audience in the higher courts have always argued for parity of court dress with barristers,? comments Law Society President Fiona Woolf. ?By virtue of their different robes, [solicitors] are often conspicuous in a courtroom, [where they] stick out like a sore thumb, or more embarrassingly are mistaken for a court usher, who shares the same attire,? she says. ?The difference in court dress can lead to solicitor-advocates being seen as inferior to barristers.?
Some three-and-a-half years ago, the then Lord Chancellor, Lord Irvine, began a consultation by asking what lawyers felt about a dress code that was first introduced in 1714 when the country was in mourning for Queen Anne. That consultation produced what was then the biggest-ever response to a consultation issued by his department, but was never ultimately acted on. Repeated inquiries of the Department for Constitutional Affairs since have established that the issue has been kicked not so much into the long grass as the Forbidden Forest. The official line has been that the department has had more important matters on its plate.
Mr Burns, who has researched the history of court attire, has found at least one critic as early as 1852 who predicted that the uniform would not outlast him and ?was really only suited as an ornament for an African chief?. Mr Burns reflects: ?It has just persisted as a foppish affectation and somehow became ossified into the legal world but died out elsewhere.?
Unsurprisingly, many others at the bar do not see it like that. John McDonnell QC, at 13 Old Square, London, freely admits that he is a traditionalist. ?There isn?t a single good argument about changing things,? he insists. ?Yes, we only wear the stuff because of historical accident and tradition but the fact is it?s accepted by the public as our uniform? it is wasteful and destructive to alter the public perception of what judges are like and what barristers are like.? He adds: ?You?re weakening public respect for the system in an age where it is inevitably under threat anyway because of everybody?s scepticism about all forms of authority.?
John Cooper, a barrister at 25 Bedford Row, London, is pro-court attire ? particularly in the Crown Court ? but not for reasons of preserving tradition. ?It provides equality for advocates, both in appearance and presentation,? he argues. In the US, he reckons, attorneys have been known to wear ties with certain affiliations or smart suits in an attempt to sway the jury. ?The wig and gown allow for anonymity and equality, which literally make the argument speak for itself, as opposed to the look of your hair or cut of your suit,? he says. That anonymity is doubly handy in the criminal courts, he says, because it can prevent advocates ? and even more so judges ? from being accosted by aggrieved clients when they bump into them on the streets.
Solicitors often attest to the practical problems they have in the courts, not least being mistaken for the usher. Avtar Bhatoa, the new chairman of the Solicitors Association of Higher Court Advocates and managing partner of London firm Bullivant & Partners, recounts being harangued on his way into the courtroom one morning by a ?fully wigged? barrister who, assuming he was the usher, demanded to know where the Crown Prosecution Service room was. When the solicitor replied that he did not know, the barrister barked back that ?that was no bloody good?. The two lawyers then both proceeded into the courtroom and Mr Bhatoa assumed his position on the bench with the defence team and the barrister sat down with the prosecution.
?He looked at me and suddenly realised that I was a senior partner at a firm of solicitors that sent him a lot of work,? he recalls. ?At that point, he looked as though he needed a stiff drink.? Whenever the two meet now, Mr Bhatoa calls the barrister ?Sir? and offers him a cup of tea in mock deference. ?He finds it embarrassing and I find the situation rather amusing,? the solicitor says. ?For us old hands, these tales are funny, but they are deadly serious for younger advocates.?
Mr Bhatoa says his personal view is that the wig is ?an outdated notion? which ?doesn?t belong in the 21st century?. Somebody without a wig can be ?an easy target for others who might want to patronise them?, he suggests. It is reinforced by the implicit prejudice contained when barristers choose to address solicitor-advocates as ?my friend? rather than ?my learned friend?, he says. ?It?s often the more insecure members of the bar that get up to antics such as this, where arrogance often marks a lack of intellect.?
Ged Hale, a criminal defence solicitor at south Yorkshire firm GV Hale & Co, is also fed up with being taken for the usher. Is court dress all about snobbery? ?I do see it like that. You?re seen as a second-class advocate,? he replies. ?It takes a while for you to be assimilated within the ranks of the bar and, of course, you are taking the bread from their mouths by appearing.?
However, he has some sympathy for retaining the dress in the higher courts and would not want to see traditions abandoned ?in the interests of costs and expediency?. He adds: ?I?ll be the first to accept that even after appearing in the magistrates? courts for 20 years, going into the Crown Court arena is a different ball game.?
Anthony Maton, executive committee member of the London Solicitors Litigation Association, says litigators in the Commercial Court are ?very strongly in favour of downgrading the current attire?. He explains: ?It is an old-fashioned Dickensian image, and for foreign litigants coming into the Commercial Court, it?s very odd to come into an environment where applicants wear a wig.?
Apparently they are not impressed by all that British pomp and ceremony. ?They?re generally sophisticated business people who aren?t taken in by that,? he says. ?What they are interested in is a court that can offer good and speedy justice. Our court already suffers from not having the technology of other systems, such as Singapore, and then we don?t help ourselves by appearing even more outdated.?
So what is Richard Burns? great objection t
o horsehair? ?It makes us look like freaks,? he replies bluntly. ?It becomes another stick with which to beat us. In reality, we?re businessmen and court attire presents us in a false light. Whenever anyone wants to make fun of the judiciary, they always show them looking like crows with long floppy spaniel ears. Why would anyone want to set themselves up for ridicule??