In Terror or Errors: Unpicking legal errors and learning from them

It is tempting to think that barristers are protected from making errors. Pupil barristers are selected through a highly competitive process, ensuring that only the best candidates make it through. Once qualified, barristers must do an excellent job for their clients, and if they do not, they will quickly find themselves out of a job. The Bar, as a profession, is intolerant of error, and it has to be. But the dirty secret is that barristers are not immune to making mistakes. Like any professional person, barristers will get things wrong from time to time. How do we keep those two thoughts in our heads at the same time – that mistakes can have terrible consequences and should be avoided, but also are guaranteed to happen from time to time? How do we deal with that?

Sir Robert Francis KC, an eminent barrister, former Treasurer and a Bencher of the Inner Temple, introduced the discussion. He explained that one of the speakers on the panel was from the medical profession, and so the idea behind the talk was partly to compare how doctors and lawyers deal with errors. He also explained that doctors, on one view, have more of a culture of openness about errors than lawyers do.

Johanna Higgins, a Bencher of the Inner Temple and also a Commissioner at the Criminal Cases Review Commission, continued the discussion, covering the various types of errors which barristers might see. There might be errors which are not really errors – judgment calls or differences of opinion. However, some mistakes are much more clear-cut. She explained that the Criminal Cases Review Commission often sees mistakes that result from decisions being made without having all the evidence. She also discussed some of the cases with which the Criminal Cases Review Commission had been involved with and gave the example of a case in Northern Ireland where the police, the prosecutor, the defence barrister and the court had each been simultaneously misinterpreting a law about car insurance.

Professor Aidan Fowler was the next speaker. Professor Fowler is a former surgeon who is now the National Director of Patient Safety in England. He talked about the idea that errors occur as part of wider systems and how lots of smaller errors often combine to create a larger error. He explained that there are often multiple opportunities to prevent errors happening. In addition, he discussed the scale of avoidable deaths within the National Health Service and the efforts which had been made to reduce them. Professor Fowler discussed the national reporting system, where incident reports are collected together and analysed, and talked about the need to make sure that people can speak up if there has been an error.

Chris Richards, a personal injury barrister at Exchange Chambers in Leeds, then finished off the discussion. He explained that there were many similarities between doctors and barristers – both are very talented people, dealing with things which are very complicated, under pressure of time and with the opportunity to get it wrong. He explained that barristers are as vulnerable to making mistakes as any other professional, and in some respects may be more so. Barrister training is short, barristers tend to work alone, there is little checking of work and harm can easily happen without being noticed. Barristers also lack the culture of investigating errors which doctors have. Chris explained that barristers need to be able to talk about mistakes as a way to stop them from happening in the first place.

Sir Robert Francis KC concluded the discussion by saying that there needs to be a broader conversation about why barristers make mistakes and how barristers can be supported to deal with mistakes when they happen.

Chris Richards

Exchange Chambers