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Monday Message 02.09.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 2nd September 2013


Personal Email: [email protected]

1.      I had the very good fortune to spend the last couple of weeks in China with my family. Part of it was spent in Tibet where I took the opportunity to do some high altitude training for my year in office. During a visit to one of the temples I found myself sitting on a low wall outside when a Monk sat down beside me. He looked at me and said he could see I was deep in thought and asked what ailed me. I explained that I was taking over the Chairmanship of the CBA at a time when we were in dispute with our regulators about QASA and the government about proposed changes to legal aid. He looked long and hard at me, stood up, and turned around paused and said “you’re on your own mate.”
2.      Fortunately I’m not. The Criminal Bar has never been more united and much praise goes to Mike Turner QC for that. A friend and colleague this week reported to me that he had been in court at the same time as someone who was instructed by Eddie Stobarts (experts in haulage). When challenged he said he was being paid £300 and he had contacted the CBA who had indicated that accepting such instructions was “ok”.  Whilst not unlawful to have done so to accept such instructions , even if they do throw in a bacon buttie (whatever that is ), plus a mug of tea represents a nail in the coffin of the criminal bar and is a desperate kick in the teeth to the rest of us. The C.B.A. will not condone the acceptance of such instructions and we ask you not to do so.
3.      Meanwhile one of their partners in crime, Co Op Legal Services posted a £3.4million loss this week as the government oversees the unraveling of the Justice system. They surely recognize how inappropriate it is to suggest that they need to further erode barristers pay when there are so many other and better ways to save money.
4.      The CBA has long pointed to the vast cost of inefficiencies in the running of the courts. This too has come home to roost as Mr. Grayling recognizes that Serco has an unacceptable culture that needs to be investigated by the police. The CBA will under my leadership help the government improve court efficiencies, what is totally unacceptable is a cut to criminal lawyers’ fees. They have been cut again and again. Not a penny more.
5.      We await the news from the government but whilst we do so Stobarts, The Co Op ( providers of funerals with a divvie ) and Tescos ( purveyors of detergents and comestibles ) circle like pirahna   intent on helping to destroy the legal system as we know it.
6.      My first Monday Message sets out to tell you something about me and my vision.
7.      My background.
Privileged. Having attended a technical college, as it happens the same one  as Baroness Scotland , I received a first class pupilage and spent 6 years in common law chambers, before moving to what has become 2 Bedford Row to do crime. I taught my trade as a junior either prosecuting or defending (but not usually both) in back to back small cases.  Working long hours to do an important job, earn a good living and perhaps achieve the kite mark of silk. QC’s doing the most serious cases. Serious for the Defendants and the public. Whilst our diligence was for sale our integrity was not.
The new landscape.  Like all poor decisions in professions, successive governments have managed to reduce morale at the criminal bar to an all-time low. Why we are not paid fees for conferences or prison visits? It must be because we are not worth it? Why are not silks routinely allocated to do the most serious cases? It must be because it is more important to save money than do justice. This government has not made the equation between trials being conducted well and rapists? paedophiles going free.
8.      The outgoing Lord Chief Justice, Lord Judge, was reported  in the Saturday Times, as having stated in a report that the reduction in morale of Her Majesty’s Judges at the same time as the reduction in their fees, raised real concerns about the ability to “recruit, retain and motivate sufficient high quality people to the judiciary. “
He could equally be referring to the criminal bar.
Additionally Lord Judge referred to the unrewarded increase in their administrative functions.
I ask the Judiciary to make its voice heard on the administration of QASA, which the CBA says is fatally flawed.
No must mean no. During the last year there have been the clearest indications from the Criminal Bar that it is unacceptable. The terminology is that it was unacceptable in its current form. Plea only advocates, as a notion, like a smelly car park, offensive on so many levels.
They had not even occurred to the formulators as an idea until really late in the day. Despite our repeated and sound objections we have been ignored.
For generations has been a hallmark of excellence, separate and apart from the junior bar. Those successful in their applications have already been quality assured, jumped through hoops and over hurdles. My generation had feedback from every court and every resident Judge, presider, circuit leader Uncle Tom Cobbly and all. The current generation have spent thousands and had every box ticked repeatedly. Still our regulators ignored us on this topic.
These are the headings as to why we have said we will not register. But over and above them is the question of JR.
Those better versed in such matters than us draw attention to headings that indicate QASA is unlawful.
Concerned as much for the Judge watching him as his client, cannot do right, fear nobody, as somebody once said.
Will he disclose his marks to counsel and in turn to the client?? If so and he has failed to conduct the trial appropriately, this will surely support or found an appeal.
Quality Assurance must not come out of the ether or apocryphal accounts.  It must be evidenced. Is it?
Hence you will not be surprised that Judicial Review is very much a live topic under consideration. It will feature as a major topic in discussions with Circuit Leaders that are being held in the middle of this month
9.      MY STYLE.
I was once cross examining a victim, asking if he seriously suggested that my 5’7” client beat him up, standing as he did 6’.6” and weighing 17stone. The Judge looked down at me (5’7”) and said “I find it is the little ones that can be the most aggressive. “. He of course is right. But I hold myself out as an advocate and hence I trust that during the year I will resist being abusive to or about anyone. One can be clear, firm and highly principled without being rude.
10.  MY AIMS
I am now privileged to Chair the largest specialist bar association of England and Wales.  My loyalty and ambitions begin and end with the Criminal bar. I am not political with a large P.  (Though at my age I am afraid I do need quite regularly a large P). I do not propose to lose my sense of humour or ignore a good gag. I hope to meet regularly and go forward hand in hand with the Circuit Leaders.
I send my congratulations to the new DPP designate and hope to meet regularly with her.
I have shared chambers at 2 Bedford Row with Maura for many a year and respect her. I have no doubt that where we disagree and I have no doubt we will, we will do so politely and firmly. Just as we only have one interest in court overriding all others, the client, so I now have one all-embracing interest, the Criminal Bar
It is frankly undesirable that those who do not exclusively represent the criminal bar, i.e. the Bar Chairman the Circuit leaders and those who do not at all represent the criminal bar, i.e. the solicitors have met with Mr. Grayling whilst the representatives of the C.B.A. have not. I wish this to change and hope Mr. Grayling will agree to meet with me.
I propose to continue to beat the same drum as over the years, except this time louder. We cannot accept any more cuts.
I am not a trade union leader. (Nor am I a VERY naughty boy), I could not get a donkey jacket to fit and every time I hear the word brazier I giggle. But I am Chair of an ancient and honourable profession that includes public sector workers.
These public sector workers, despite extensive representation in parliament, have accepted cut after cut after cut. This has to end and like any other public sector workers, the debate must begin as to whether we ask for inflation linked rises or inflation +.
Mr. Grayling will be pleased that we won’t immediately be seeking the 10% rise recommended to MPs, but he will have noted his own figures put 60% of the criminal bar on £50k or less, with no pension provision, minus expenses, including VAT etc. etc. etc.
This Wednesday, assuming events in Syria do not overtake us I am meeting with David Davies M.P. and others to discuss in advance, a strategic approach to the anticipated Legal Aid Mark 2.
As I pledged in my manifesto and the basis on which you elected me. I propose to visit each circuit, hopefully one a month and there meet with Heads of Circuit, Heads of Chambers,  Senior Clerks / Administrators and anyone else that would care to meet with me. This association is truly national.
This year, as last year the CBA will again be noted for its events of excellence, leading the way in education and advocacy. You will see again The Kalisher lecture, our support of the Young Barrister’s conference, various educational events, the Spring Conference, the dinner and much much more beside.
Let’s keep a spring in our step, a smile on our faces and go forward together.
a)      Serco under investigation for alleged fraud in relation to prison escorting contract:
b)      Chris Grayling gave a short speech about the above, in which he states that ifSerco do not clean their act up they will not be awarded any public                      contracts in future
c)      Serco’s shares then fell by 13% on Thursday!
d)      All of the above has led to fresh claims there should be an investigation into how the prisoner Richard Kwakye was able to escape Kingston Crown Court          last year, whilst under Serco’s control.
e)      BSB brings judicial review of a disciplinary tribunal decision ordering that an acquitted barrister who represented herself should be awarded costs,                    fearing the decision could set a costly precedent.
f)      The Low Commission’s (not a typo – it is chaired by Lord Low) preliminary report suggests money held my law firms could be used to plug the gap left by           legal aid cuts.
g)     Co-Op Legal Services makes £3.4million loss in first half of 2013.
h)     A direct action group – UK Uncut – warns that nationwide demonstrations will be held on October 5 against the legal aid cuts. The demos will include road         blocks: 
i)      Two CPS staff members jailed for making fraudulent claims.
j)      Serco pledges to weed out any internal wrongdoing
k)     Stobart chairman-elect promises clean slate for all  
l)      A post on ICLR’s blog relating to QASA and its impact on solicitors and barristers:
m)    More about Co-Op legal services’ £3.4 million loss:
n)     Grayling indicating he won’t delay legal aid cuts:
Nigel Lithman QC

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