Home truth no 1

I told my children (now adults) that I had been asked to write an account of my working day and rhetorically asked what time it should start. In reality a ‘normal working day’ for me begins at any point from midnight onwards when I start strategising cross-examination or mentally listing ‘things to do’ to get a case trial-ready. Waking up with the opening lines of cross in my head at 3 am, getting up at 5 am to sync thoughts with the papers or sending off emails (whilst leaning to one side of the bed and trying to keep the light and the key pad sounds to minimum so as not to wake my husband) is simply the thinking start of a working day. From the wee small hours to courtroom, post-court client care and home to start the next day’s cross prep: interposed with 24 /7 email accessibility covering work on pending cases and other parts of my professional life: the Gresham Professorship, advice and support for colleagues, sitting (and don’t forget the joys of commuting)… on it rolls.

My family know my way of working is not ‘normal’. They know that it comes at a personal cost. So, having asked the question about how to describe a ‘day in the life’ the answer I received was that if I was going to describe it honestly, as an obsession with performance, then nothing I said should be allowed to fetishise my frankly ridiculous and unhealthy approach to work as a child protection silk.

Home truth no 2

I was asked to write this article weeks ago. Now I have 48 hours left to turn the copy in when other, more pressing, deadlines loom and sleep is an optional extra (see Home Truth No 1). Why have I done this to myself? Honest answer: because I am asked to do a lot of things by a lot of people who don’t realise every request is ‘death by a 1,000 cuts’ to my non-court time and yet I find it hard to say ‘no’. It’s not till the time comes to deliver on a promise that I acknowledge I have over-committed – yet again. Why do I say ‘yes’? Because of the flattery (‘Ooh? Me? Really (Que Imposter Syndrome)?’). Because it’s important/interesting? Maybe. But having said ‘yes’, why do I always leave it so late to deliver? I’ve always been a last-minute prep person, something about the adrenalin fix of performance perhaps. The consequence for this article is that I have no time to make up an ‘exciting’ composite day: you will have one as it is scheduled to be: 6 June 2019. It may all change but that’s the nature of the job.

The day job

I am not a good advert for wellbeing at the Bar. That concept gets sacrificed on the altar of success (or striving for it). I am self-employed: if I don’t work I don’t earn. I am the sole wage earner. I am a competitive silk. I want to be top of the food chain when it comes to getting the most interesting briefs in. And I do. It takes skill and stamina to build up a ‘leading silk’ practice and reputations are easier to lose than to acquire. In the small specialist professional world of very serious child abuse, word spreads: you are as good as your last case, your last cross examination. To my clients (I am principally a parent brief) there is no case more important than theirs, no job that’s more important than when I cross-examine on their behalf. They put their trust in me to know the papers, score the ‘cross’ points, win over the judge (not always one and the same thing). They have to live with my witness ‘wins’ or ‘losses’ long after I’ve left the courtroom, case and their lives.

So I work. I plan. I plot. Because child abuse public law work matters. Hence the 3 am mental alarm. Not necessarily because I’ve worked till then (nor because, as a middle-aged working woman enduring the menopause, I go through an hourly ‘whirling dervish’ routine trying to find a cool spot in the bed) but because the facts and issues in the case papers I have read the night before develop a life of their own in my unconscious mind while my body shuts down. Blood and sats results, med time-line, CRP infection markers, nursing notes, obscure research articles etc: pages that were just random cards in a pack of 54 jokers have been cut and shuffled into a hand while I’ve been snoring. It helps. A lot. The thrill of cross-examination is having a strategy where you can direct the witness down a route where they think they have the map but where you have discreetly blocked off exits, switched the road signs and put up roadworks so that you control the pace and direction of their evidential journey: even if the terrain you are exploring is outside your own professional specialism. Ophthalmology, neuropathology, radiology, osteopathology (as many ‘ology’s as you wish: child abuse embraces most medical fields).

My day job is anything in a trial that involves allegations of serious harm to a child: fatal non-accidental injury, shaken babies, sex abuse, ritualised abuse, factitious induced illness, and radicalism cases. The word ‘allegation’ is an important one for a barrister in the trial process. We should not judge the client’s case: that’s not our role. One challenge I face in every case is the inevitable ‘I didn’t do it: do you believe me?’ conference question. I have learnt the hard way not to reply.

I acted for Ben Butler. I cross-examined with conviction alongside colleague silks to successfully challenge a previous finding that Ben had physically assaulted his child, Ellie, as a baby. We re-ran the medical evidence and pulled it apart. The judge believed Ben and he was ‘exonerated’. His two daughters were subsequently placed in his and their mothers care. Ellie Butler was then murdered by him. I believed in Ben. I was wrong.

I acted for Chana Al Alas in the case that exposed the legal and medical world’s lack of understanding about the role Vitamin D deficiency and rickets played in modern society: producing symptoms that could mimic catastrophic child abuse in severe cases but were, in fact, benign not malign. I didn’t believe Chana when I began the case and read the path reports: by the time we came to trial and I had led the cross-examination of 26 medics and 11 experts I was convinced she was innocent of any allegations of abuse. The judge was persuaded. I believe rightly so.

But what these cases taught me is that my belief in what the client has or has not done is irrelevant: it’s how well I follow and explore my instructions in and out of court and what the client makes the judge believe happened that is make a difference to outcome. Thinking that – versus explaining that – to my needy, vulnerable, learning disabled client, accused of letting her baby starve to death is not easy. It is done with the help of the team that, over time, I lead and get to know: my junior, my solicitor, the clerk who comes to court (because the days of a legal aid solicitor being able to be with their client are long gone in our ravaged legal aid system). Getting to know a new team, working with them to gain the respect and trust of the client we act for is the real perk of this silk job. A new case, new city, new hotel, unfamiliar walk to court, new junior, new solicitor, and new client: the most familiar faces are likely to be the High Court judge or my opposing silks. It’s a performance and endurance challenge.

6 June finds me in week six of a six-week trial acting for a mother accused of smothering her six-week-old baby having exposed her other daughter to FII [fabricated or induced illness] harm. I began this trial on Tuesday 23 April having finished a four-month sex abuse trial the preceding Thursday in Manchester. The w/c 3 June was scheduled for submissions and judgment when the court realised that hearing from 48 medical witness would push us beyond our five-week fixture. By then I had agreed to sit in another court to conclude a FII case for which I had conducted the fact finding hearing in the last week before Christmas before departing for Manchester. And so 6 June is the date we have carved out of my sitting witness template so I might deliver closing submissions in my FII case (running between Bromley and East London). Ordinarily, sitting is less stressful than silk work: I sit in my familiar field; I get to chat with former colleagues who have taken ‘The Queen’s Shilling’; I get to be relieved of late night working hours and post-court client care; and I get to listen whilst the advocates before me grind on with a day job that I know drains them.

So a busy day. Sitting. Silk work. Why would anything else be factored in? (See Home Truth No 2.) But they are: I have two other, non-delegable commitments at the start and end of the day: speaking/mentoring and lecturing.

Before court

The Risky Business Conference: Great Ormond Street Hospital: ‘Crisis management, leadership, innovation and wellbeing’. I have the early bird slot on day two of the cross-industry learning conference where the Manchester Arena Bombing, Grenfell Tower disaster, London Bridge terror attack and Salisbury Novichok incidents will be discussed: I speak alongside others such as John Volanthen (who masterminded the Thai Cave footballers rescue), Assistant Commissioner Rowe of the London Fire Brigade (lessons to be learnt from Grenfell), Dr Anu Mitra (Consultant Emergency Physician looking after the team after Major Incidents), Dr Christine Blanchard, Deputy Chief Exec Salisbury NHS Foundation Trust (Managing the Novichock Crisis – the longest major incident in NHS History. I will be talking about lessons to be learnt from large scale abominations like Hillsborough to intimate tragedies such as the death of an abused child. It’s the first time I’ve spoken of my work on Hillsborough. I was part of the legal team acting on behalf of 77 bereaved families in the longest running inquest heard in UK legal history. It will be challenging to do so and do justice to the legal team I worked with and the families we were honoured to represent. It daunts me.

After court

My last Gresham lecture: Wellbeing at the Bar: is a lawyer’s life all stress and distress? The irony of this title as I write this article is not lost on me. Gresham College was created in 1597 by Sir Thomas Gresham with the express purpose of delivering education, of the highest order, to the public for free. I was appointed Gresham Professor Law in 2016, following in the footsteps of the superb Sir Geoffrey Nice QC, OBE and before him Baroness Ruth Deech QC. Each professor deliver six lectures a year, which are live streamed and accessible internationally. Gresham is, in effect, a brains trust. I work alongside the most phenomenal men and women, all leaders in their field, who have secured their professorship because they are as passionate about free education as they are about their specialist subject. It is hard work but, frankly, light relief in terms of responsibility. It’s an intellectual luxury to research a professional issue for the sheer thrill of exploring it afresh (or even anew): working out how to demystify it so as to convey its complexities and relevance to an audience that might comprise the homeless (who’ve walked in off the street because it’s fast-food-bin-dump time) to students, co-professionals, the interested /retired and the judiciary (like a former President of the Family Division who sits discreetly at the back of the hall so as not to attract attention and put me off). The lecture notes are gathered over preceding weeks and take at least two days to put into lecture form. The lecture itself takes another day to prep because, in talking about the subject I have to be able to demystify it without losing sight of the complex issues I want the audience to engage with: and that means the lay listeners not just my professional colleagues.

Speaking gig

At some point on 6 June I will check in with my agent, Harvey Thorneycroft, about the speaking gig I will be doing in Split the following week for the International Tourism Agency. My Gresham role has kicked off a fourth career: as a corporate speaker. As barristers we do not properly identify and sell our transferable skills, yet we have so many. We work under pressure; we have to evolve personal and professional strategies to achieve success; we have to lead a team; we have to build relationships afresh in situations where there is little room for error; we are expected to persuade, cajole and command to achieve our goals. Our professional world is an extraordinary one and fascination with it is high for the City or corporate trade. It’s a real ‘buzz’ to turn up to do a ‘key note’ speech and to shift expectations of what being a lawyer does or is.

The final gasp

I have a note to write because on 5 June I will have taken part in a meeting between the Bar Council, Adminstrative Law Bar Association and other key players on the issue that has now become the subject of focus and concern at the Bar: evidenced by the International Bar Association report on sexual harassment and judicial bullying: ‘Us Too?’ I was on the press launch panel and there to hear Baroness Kennedy QC and Dame Laura Cox DBE tell the audience how long this conduct has blighted our profession. It was shaming. My seniority as a silk and Gresham role has given me the platform and confidence to speak up and about things that have for too long been tolerated and excused at the Bar such as judicial bullying and sexual harassment. Some of what I say is public, much of it is private conducted through the networks that have evolved over the last 18 months. I am one of a number of senior practitioners forging links between specialist professional groups, with the Bar Council, the judiciary and politicians. I do so not carrying a family Bar flag, but as a woman with opinions who is willing to speak openly about issues that make some members of the Bar and Judiciary uncomfortable.

It’s been necessary to take a stand, even when it’s personally uncomfortable, because abuse of power in our profession is a problem we have buried for too long. That much is obvious not just from the data that the Bar Council and IBA have collated but from the individual tales I receive that evidence the stats in the surveys. Men and women contact me on a weekly basis to ask if they can tell me their story, not always to get advice (but often that is what they want) but just to be able to speak frankly about their experiences, their shame, their fears. It’s not easy creating time to answer the calls or emails but until there are more senior people who are prepared to do so the burden falls on a small number. We need a cultural shift in the attitudes we bring to our work place and soon.

Final word

I suspect that what this narrative reveals is that I am not a woman of moderation. Twenty-four hours isn’t enough for my working day. Whilst there’s a lot that can be packed into it we can’t do it without cost to ourselves. A review of the Bar’s work practices and culture must change. Senior members of the Bar have to give younger members the chance to say ‘no’ to work overload. The legal aid system is at breaking point and, if it’s not yet entirely broken, that’s because of the efforts of legal aid lawyers and judges and court staff to shore it up against the odds. But those efforts can’t be at the cost of the wellbeing of those who labour 24 /7 within it. No job is worth that. Final words? Your wellbeing matters. Do what I say: not what I do.

Jo Delahunty QC was called to the Bar in 1986, took silk in 2006, became a Recorder in 2009, made a Bencher of Middle Temple in 2011, and was appointed as the Gresham Professor of Law in 2016, a role she performs alongside her full-time silk practice from 4 Paper Buildings, Temple.

Jo was amongst 100 women to be awarded Freedom of the City of London on 13 March 2019 to mark the centenary of the Representation of the People Act 1918.