Bloomsbury Professional catch up with criminal defence barrister and author, Emma Fenn.
What first attracted you to criminal law?
The endless stories that my grandad told about his time as a policeman in North Wales. I always wanted to hear about the murder investigation that led him to board a boat for several days off the coast of North Wales or the memorable times when he had to go to London to appear at the Old Bailey. It’s fascinating to think that all of his stories pre-dated the bringing into force of PACE (The Police and Criminal Evidence Act 1984) and to reflect on all that it has done to try and improve the way that criminal justice is run.
What’s the most difficult position you’ve found yourself in as a criminal defence practitioner?
The most difficult position I find myself in as a criminal defence practitioner is usually when my work brings me into contact with other agencies or public authorities and the lack of joining up across the system. One example is where the Youth Offending Team tell you there’s no accommodation option available for your child defendant applying for bail. Another was the day when I was faced with a defendant with mental health problems who had served the maximum sentence he could for the offence he was charged with. The local authority stated they could not provide him with accommodation and he must wait from Friday to Monday in prison in order for them to do so. Tens of calls to different arms of the local authority later, they agreed to provide him with accommodation. That day, he was lucky, we were minutes away from the courtroom closing when the call came in. Without that, the judge would not have released him for another three days.
What do you consider to be the biggest misapprehension about criminal law/ criminal lawyers?
That you have to be old in order to be a criminal barrister. I’m often greeted with looks of confusion by new clients and their families when they see that I don’t look like Kavanagh QC or Judge John Deed. I guess it highlights how far we have to go on not only changing diversity and retention at the Bar but also changing the public’s perception on who is a criminal barrister. Strange as it is, starting with who we cast as our barristers in TV and films may be pretty important alongside the work that’s being done to change the make-up of the Bar. But without a properly funded justice system, I fear we are already taking backward steps in relation to making the Bar accessible for all.
What do you think will be the next big development in criminal disclosure?
I hope that it will be that the introduction of an effective sanction for non-disclosure. The Court of Appeal and reviews on disclosure have repeatedly recommended the introduction of a new sanction, commenting that a wasted costs order is often ineffective or disproportionate. The number of disciplinary proceedings for failings in disclosure are also staggeringly low. It seems unlikely that disclosure will be taken as seriously as it needs to be rather than considered as an administrative add-on until proper sanctions are imposed. Whilst the National Disclosure Improvement Plan (NDIP) is to be welcomed, we must ensure that the training reaches everyone and is completed by all officers. Knowledge of the existence of the training is not always apparent when speaking to officers attending court.
Emma is one of the authors of Criminal Disclosure Referencer.