From working on a building site in a corduroy jacket, to wearing a three-piece suit in less than a week, this is Alex Di Francesco’s account of the beginnings of a 21st Century criminal defence practice…

                                                                                                                          Eloisa Tovee

Alex Di Francesco was called to the Bar in 2008 and became a tenant at Lamb Building in early 2010. Our interview took place nestled around an open fireplace in Middle Temple Hall, the Inn of which he has been a member since 2006 and which he recommends to any aspiring barrister both for the wide-ranging support it offers to its members and its advocacy orientated ethos.

Alex described how his decision to down tools on a building site on a cold Monday morning lead him to an abrupt change of circumstances. On Tuesday, enquiries were made to various course providers; an application to begin the GDL was handed in on Wednesday; come Thursday, Alex began the law conversion course at BPP, a course that had started three days earlier. On the Friday, he became a member of the Middle Temple; and soon after stumbled upon student elections and was elected president of his Inn’s student association - and that was it: Alex’s long journey to becoming a practicing criminal barrister was underway.

When asked why he only defends, he answered simply that it wasn’t at first a conscious decision but became a choice once he had been practising for a relatively short time. He explained that the role of defence counsel is different from that of the prosecution; that he takes pride in defending individuals who are often at the margins of society, disliked or feared and subscribes to the often quoted adage that ‘as a society we are defined by the way we treat the people we fear’.

Alex told us that he takes pride in helping to ensure the men and women who appear before the courts are treated with dignity; understand what is happening to them, are tried and, if appropriate, punished in accordance with the law: 'it is, in my view, defence counsel’s job to help the court achieve outcomes that are in accordance with the evidence and, consequently, just.'

While the concept of fighting for the greater good is not often associated with defence barristers, it was inspirational to hear that there are still those who are driven by the desire to seek fairness in a system which perhaps focuses too much on prosecuting the guilty, case management and minimising expense.   

Although this could be one barristers’ interpretation of his responsibilities at the Bar, it shows that there is more behind the desire to become a barrister than wanting to wear a wig (in some cases) and liking the sound of your own voice. As many of us know, it is not an easy profession to enter. In fact, it is often a career we are advised not to aspire to, especially when, as Alex says at the Criminal Bar: ‘in the current climate, you are likely to be below your peers in the wider economic pecking order’. However, despite the difficulties, Alex believes that it is still possible to build a career.

He spoke of his time as a pupil, describing how those ‘first six months are an invaluable opportunity to learn about ethics and integrity; learn how a barrister conducts himself inside and outside the court; learn how to hold yourself and what it is to be counsel.’ He described it as a ‘fundamentally important time’, where ‘lessons learnt in the Old Bailey can be genuinely applicable in a far-flung magistrates court’. He also spoke highly of his clerks in chambers, stating that they were ‘incredibly important’ within the system. ‘They combine the roles of promoting the set, organising your work… they fight your corner and support you’.

Nevertheless, there is only so far a clerk will get you. Being a barrister consists, among other things, of being confident with your own capabilities, knowing how to adapt to different cases, judges and clients and, importantly, developing your own style as an advocate. As Alex puts it, although he adjusts his approach dependent on the case, ‘I am always me, otherwise I would appear inauthentic and that is not persuasive’.

Sir Edward Marshall Hall KC

We asked if being dramatic or emotive was an important feature of advocacy. Alex’s answer was balanced: 'Some experienced advocates discourage you from being emotive and some encourage it. Marshall Hall was a famously emotive advocate: ‘Look at her, gentlemen of the jury, look at her! God never gave her a chance - won't you?’ “I can be emotive at times, I try to temper it, in my view you can be emotionally engaged as long as your judgment isn’t affected'.

So, support from your chambers, effective advocacy and barristers with a genuine interest in bringing respect and fairness to the courts – will this help us move towards a flawless legal system? Alex thinks not: ‘That’s a big step, all legal systems have flaws because they are human’, what we need instead is a ‘mature system that understands its limitations and focuses on achieving justice’.

We asked Alex his view on the QASA proposals and whether these would be an appropriate alternative to our current system: ‘It depends on how it is implemented but there are some principles that in my opinion QASA can potentially compromise: When an advocate is in a situation where they know that a judge at the end of a trial will be making a professional assessment of them, a professional assessment that will potentially impact their future earning capacity that is a problem. That is not in accordance with general principles of the Bar. Barristers are human and obstacles shouldn’t be put in the way of them making submissions that may not be well received but are potentially right.’

The distressing part of Alex’s observation above is that it shows a potential, practical ‘human’ reaction to the implementation of these proposals. It is genuinely worrying if just once, even one advocate decides against making a submission, voicing a potentially unappealing argument, not because it is unarguable but because he is conscious that the judge isn't merely judging the case but also judging him. Those are circumstances in which the adversarial system and, consequently justice itself, would be compromised.

Another concern of Alex’s is that if a ‘certain level of case’ can only be dealt with by a ‘certain level of advocate’ there are other difficulties that may arise. Alex drew parallels with the CPS grading system:

‘I defended in a case recently that was complicated; it had cell site evidence and other expert evidence but it was relatively low monetary value offence…I arrived at the case management stage and asked the prosecution advocate whether she was conducting the trial, she said she wasn’t that this was a level two case and she was a level three advocate. Therein lies one of the problems: more serious cases may in fact. be less complex and, alternatively, able and talented junior barristers may be limited in the instructions they can accept by the centralised ‘grading’ of cases. I don’t know what the answer is but there is a great deal of concern about the potential implications of QASA and other reforms.’

Reflecting on Alex's last point: the grading of cases and the assessment of advocates by judges is ostensibly designed to ensure quality but might there not be a risk that the fierce sense of independence and the fearlessness with which barristers like Alex defend their clients, will slowly be replaced with a different ethic: one that calls for you not to push too hard or rub anyone up the wrong way just to so that you can guarantee you make the grade? If it does, it will be a sad day for justice.

Alex recognises that the issues are complicated, that there were no easy answers to the challenges that the Bar faces. Let’s hope that those willing to represent people who society fears are not discouraged and that we, as a society, continue to strive to be defined by how we treat those same people.