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CBA: Update on Collection of Data by the Senior Presiding Judge

Dear Colleague,

As you will recall, on 22nd June the Lord Chief Justice issued guidance to Judges on the approach to be taken in cases that could not proceed due the participation of defence counsel in strike action. The guidance stated that “all cases in which there is non-attendance should be referred to the Senior Presiding Judge’s Office to consider whether to involve the Bar Standards Board.”

Many of you were understandably troubled to have seen this guidance.

The CBA responded to your concerns in a message to members on 24th June which included a pledge from a very large number of Silks to offer you advice, support and, if necessary, representation in the event that any of you were made subject to regulatory action.

In a further message on 29th June we conveyed to you the advice we had received from leading civil Silks that our members had a Article 11 defence to regulatory action or wasted costs applications consequent to participating in strike action.

On 7th July the CBA informed you that we had instructed Mishcon de Reya and specialist leading counsel on a pro bono basis “to consider whether the completion of court forms recording data about barristers participating in days of action amounts to unlawful processing of personal data”. Our solicitors wrote to the MoJ to raise those concerns and to the Information Commissioner to investigate the lawfulness of collecting such data.

On 14th July the CBA Chair and Vice Chair met with the Senior Presiding Judge and Deputy Senior Presiding Judge and raised our concerns about the issue of data collection on those members participating in days of action.

Following that meeting, on 18th July the Senior Presiding Judge responded to our concerns in writing. He has kindly given permission for us to publish his letter so that our members can know the position on the issue of data collection.

In short, no data is being collected by the Senior Presiding Judge on any criminal barristers who are participating in strike action. All data previously collected on such individuals has been deleted.

We hope that seeing this letter will provide reassurance to those of you who were concerned that, by exercising your right under Article 11 to take days of action, you were at risk of being referred to the BSB through the office of the Senior Presiding Judge.

To date, we have not been made aware of a single referral to the BSB of anyone who has participated in days of action.

Wasted Costs

You will recall our message to members on 12th July giving reassurance to you that the official position of the CPS is that wasted costs applications “should be made sparingly and only where the lapse in standards cannot be excused”. Nor should any such an application be made without prior approval from the Chief Crown Prosecutor. Further, that prosecutors may advise “the Court of the rationale for not applying for wasted costs”.

To date, we can confirm that we have received no reported instances of criminal barristers facing a wasted costs application in consequence of participating in days of action.

We remain fully committed to the course that you have supported in the ballot. But it is your courage and determination that has given the Criminal Bar the unprecedented solidarity we have seen over these past weeks.

That unity will always be our strength.


Jo Sidhu QC


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