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Monday Message 02.12.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 2 December 2013


Personal Email: [email protected]

This week it came to light that the MOJ were £56 million “under budget” for the last fiscal year: this is exactly what the Criminal Bar has been saying. The effect of cumulative cuts since 2010 are still working their way through the system and are already on course to deliver even greater cuts to the Legal Aid spend for this year. And this is before the extensive cuts to civil/family legal aid introduced in April are taken into account. So why are the MOJ in such a rush to “slash & burn” the Criminal Bar out of existence without properly assessing the impact of their proposals?
My thoughts returned to the wording of the MOJ’s “impact assessments” contained in the documents forming part of their Transforming Legal Aid Consultations. They make interesting reading not least because of the breathtaking assumptions which underlie them and the cavalier nature by which they appear to have been reached. Nowhere is there any evidence on which the assumptions were based, just bald statements. Take a look for example at “Reforming fees in criminal legal aid – response impact assessment”and the “Key Assumptions”:
1.    “The supply of advocates willing to do legal aid work will be sufficient to meet demand” 
Are the MOJ waking up to the fact that the confidence in this assumption is misplaced? Word has reached us that wherever rulings have been asked for in recent weeks, the LAA is turning this way and that to keep old VHCC cases under old rates, using the artifice of holding “Pre Trial Reviews” to get cases started before the cut-off date next year.
All rather undignified. Why? Because they now understand that you will not do the work under the new regime. Of course everyone must do what they wish and what their conscience dictates. So many of you have written to me with pride to say you are refusing to work at the new rates and to announce you would not take returns either. Thank you to those, especially the young Bar, who have taken this principled stand. As usual you have demonstrated why we Silks should do everything in our power to fight to save this profession. Why would you accept a change to your contractual terms of such significance, a cut of almost one third of your fees at one fell swoop? Surely the government understands that putting a band aid over an old scratch may be effective, but rather begs the question about how they propose treating the patient once they have cut off one arm and both legs.
2 . “The same quality of services will continue to be supplied by advocates”
Of course this assumes there will be sufficient advocates of quality left in the future willing to undertake this work at the paltry rates offered. Nowhere does the impact assessment consider the extent and cumulative effect of the cuts already imposed since 2010 on the remuneration for criminal advocates. Not a second’s thought to the advocate’s ability to make a living, to sustain their profession, certainly no assessment of their impact year on year. It doesn’t take much to realise that by making it impossible for advocates to sustain their livelihoods, the number of advocates in criminal practice will shrink.  Of course the MOJ want this, they say there are “too many barristers” (although this makes absolutely no difference to their budget) – but which ones will go and which ones will stay? Even the AG acknowledges that the brightest and the best will not come to the Bar in future. The true impact will be a “domino effect”: Less people to fund the required training for new entrants; less entrants to the profession (attracted elsewhere by much higher rates of remuneration, who can blame them?); less experience, less expertise, lower quality; more litigants in person; slower & less efficient courts; the “false economy” of rising costs as the courts and judges become overwhelmed by delays and the absence of independent, skilled advocates on whom the system relies.
3.    “This proposal might lead to more junior legal professionals being allocated to VHCC cases. However, we believe that more junior legal professionals are able provide a sufficiently good quality legal service to enable individuals to be adequately represented in court” 
No recognition here that, no matter how able the junior legal professional, these cases by their very nature are the most substantial, demanding and complex of trials requiring the expertise, skill and incalculable experience of the more senior members of the profession; no appreciation of the heavy weight of responsibility carried throughout the conduct of such trials; no recognition of the ways in which those with so much experience assist the courts and contribute to the effective and efficient disposal of such cases.
What does the Ministry suppose will happen when the same “junior legal professionals” progress to being just a little too senior, is it envisaged that their career progression should come to a stand-still while their then “more junior colleagues” replace them too? Is it envisaged that once one reaches 35 or so, one is “ready for the scrap-heap” as any further expertise that may be gained after that is of no value and all too easily replaceable. Like Silvio Berlusconi always looking for the “cheaper, younger model”
Let’s imagine for a moment the analogous position of a consultant doctor or surgeon. Were the government to announce a 30% cut in remuneration for doctors & surgeons & justify it by saying “never mind, we believe that more junior doctors are able to provide a sufficiently good quality service to enable individuals to be adequately operated on in theatre”, how might the patient react? What might be the impact on the health service and the “value” delivered to the taxpayer?
4.    The missing “impact assessment”: 
What is so striking, (there’s that horrid word again ) about the “impact assessments” is their failure anywhere to give any thought at all to the impact of the proposals on the long term criminal justice system in this country. This is too important to ignore. We have offered time & again to work with the MOJ. Their only response so far is to impose swinging fee cuts and continue (as someone else has said) to “peddle the lazy fiction” about the previous earnings of a small few (such figures taken before the full impact of the cumulative fee cuts to date).
We are asking the MOJ to stop the wrecking ball before the momentum goes too far and it smashes into the edifice of the criminal justice system. We are asking the MOJ to pause and re-think: there is time to change its’ course. There are still substantial savings working their way through the system, wait & see their effect. Accept our genuine offer to work with you in finding such further savings that can be made. We ask you to undertake a proper, evidentially based “impact assessment” of the proposals on the future of the criminal justice system. We ask you to wait for the outcome of the Jeffrey Report before doing anything. What can be more sensible that to devise the system and then cost it.
6th JANUARY 2014
It has become fashionable to e-mail friends and family to notify them of an important date for their calendar. So here is one from the CBA. We know, because you have told us, you want your voice heard in response to the imposition of VHCC cuts and the proposals for further fee cuts. We know, because you have made it clear, that you want to show the MOJ the depth and breadth of your concerns, how destroying the future of the criminal bar will impact upon the criminal justice system in the long term.
Some members of the CBA have decided that they will no longer be available /will not work during the morning of the 6th January; but will be available to attend Court from 2 pm only on that day. Those of you who want to show your support will decide for yourselves whether you too will choose to work for the first half of that day or only as from 2 pm. We hope that judges will be sympathetic to applications for a 2 pm start. This appears to be a wholly reasonable and proportionate response to the conduct of the MOJ. 
Before announcing this, as a matter of courtesy, I have spoken to the Lord Chief Justice, the Recorder of London and Common Serjeant, the DPP (and my wife, who says she doesn’t mind where I am on the morning of the 6th so long as it’s not at home).
The Circuit Leaders and CBA propose to draft a protocol concerning that day and cooperate with courts to ensure nobody’s liberty is compromised. Perhaps don’t bombard us with questions at the moment, whilst we devise this protocol. I will speak again to the DPP about prosecutors. But like defence counsel, they must choose their own course.
This half a day’s “non-attendance” on the first day of term, if supported by you up and down the country, will show the sincerity and strength of feeling among the criminal bar; it will demonstrate the importance of the role played by criminal advocates in the efficient disposal of criminal cases: put another way, it will give a glimpse of the future if our profession is dismantled into non-existence.
I had a very positive meeting this week with Alison Saunders, the new DPP. I promoted the need to brief at the level that took account of our skills and raised the issue of prosecutions that failed through briefing at too low a level. We discussed levels of fees and lateness of payment in particularly for old cases, last minute instructions and illegible briefs. I also raised particular difficulties experienced by particular counsel.
We agreed to meet 3 times a year, when I will raise matters of generality and specificity on behalf of prosecutors. I informed her of proposed action on the 6th January, in the spirit of transparency.  She understands the rationale for choosing that date and that we propose to have ongoing discussions.
I agreed with her that the fee cuts against which we rail are defence fees. However I pointed out that today’s prosecutor is tomorrow’s defender (and vice versa).
I found her easy to speak to and wish her luck in her post.
I will update her about the day of action.

The CBA Bursary awards were established in 2012 with support and contributions from 3 major publishers, Thompson Reuters, OUP and Lexis Nexis, plus 15 leading sets of chambers. The purpose of the fund is to make awards to young members of the independent bar who face particular financial difficulty. The five awards to date have been made to strikingly able young members of the Bar (sorry, didn’t mean to use the “S” word). They know the struggles that lie ahead and we are glad we have been able to take some relatively small steps to ameliorate their problems. For an hour and a half on Tuesday I was blessed with an out of body experience. For a while the clouds lifted as I remembered what we are fighting for: all that is best about the Criminal Bar. Three, two, one, “back in the room”; my soul rejoined my body alongside all of you trying to deal with the obstacles that are being thrown into the pathway of these 5 individuals. We do this for them.
On Thursday, slightly older and more experienced members of the Bar were advocating about the independence of the Bar in front of Lord Justice Leveson, Mr. Justice Bean and Mr. Justice Cranston, as the Bar’s argument that QASA is unlawful was unfolded by Dinah Rose QC, assisted by Tom De La Mare QC, Mark Trafford, Charlotte Kilroy and Jana Sadler-Forster and Baker McKenzie. As I watched for a while the clouds lifted again and I remembered what we are fighting for: all that is best about the Bar. Dinah Rose’s advocacy was little short of inspirational. Her team in support organised and determined. Remember each and every one,  as have our solicitors  given up their time for us pro bono. All of us should be in their eternal debt.
We draw breath and await the outcome.
This week I was a guest at the Kent Bar Mess. I have to say coming from the other side of The Queen Elizabeth Bridge, I was nevertheless mightily heartened by the depth and warmth of feeling expressed towards the efforts of the CBA.
The same applied on Saturday night at the Society of Asian Lawyer’s Ball.
If the Lord Chancellor expressed any interest in attending such functions, perhaps the scales would fall from his eyes.
I have asked for a further meeting with the Lord Chancellor to update him. You will recall I have said I will tell him before each step we are taking and ask him to rethink.
It is a mistake to confuse politeness with strength and determination.
We were deeply saddened to hear of the death of Gianni Sonvico, at the age of 23.
His Mother Karen Chandler, said: “Gianni lived his life with relish.
What gives us comfort are the many stories we have heard and will continue to hear about his talent for and dedication to the law, his passion for his friends, his love for his sister and all his family, his love for London and, of course, the Arsenal. He was on the cusp of a great life. We are devastated, as are his friends. He was absolutely passionate about justice and equality in law.”
Ealing-born Mr Sonvico graduated from Queen Mary, University of London, before completing his Bar Professional Training Course at Kaplan Law School this summer.
On the day of his disappearance he had tweeted: “About to head into Middle Temple for the first time since call [to the Bar]. I definitely feel far more of a member than I did as a student.
Grayling/Legal Aid Cuts
Government criticised for legal aid cuts after it is reported that there was an ‘underspend’ on last year’s legal aid bill:
Grayling grilled by Parliamentary Rights Committee:
Emma Thomson, Noam Chomsky and mother of Stephen Lawrence support #saveukjustice campaign:
General Criminal Bar News
BSB amends rule to allow barristers to refuse fee cut:
QASA Judicial Review begins: 
Hundreds of court cases being disrupted due to continued failure of MOJ contractors to provide interpreting services:
Serco facing fresh investigation into ‘catalogue of problems’ with probation contracts:
Prisoners protest on roof at Serco-run HMP Oakwood:
“Selling to the State: G4S gets stung in Britain”:
@TheCriminalBar: RT “@alisonpadfield: Just donated to @TheCriminalBar fighting fund #onebar” Thank you A. So grateful for support from ComBar #fight4legalaid
@BarristerAlex: @TheCriminalBar HHJ Pegden QC “without prof expertise & co-operation @ the very least huge amounts of ct time & public £ will b wasted”
@BarristerAlex: @TheCriminalBar HHJ McCreath “coping with long & complex cases only possible with good counsel” #VHCC #financialcrimeconference
@TheCriminalBar: Closed Sussex courts costing taxpayers £20,000 a month #mojwaste
@SCynic1: Really am very proud of those returning VHCCs. When @MoJGovUK won’t deal fairly a kicking is the only answer. Their conduct is disgraceful.
@TheLWA: @TheCriminalBar Met Counsel yesterday who had returned a VHCC case. I have been offered two as an HCA and refused as a matter of principle.
@TheCriminalBar: Taylor Street Solicitors announce that neither their HCA’s nor in house counsel will accept VHCC returns. Solicitor support solid.
@TheCriminalBar: .@HarryBentley @RebeccaHerber44 @TimothyThomas79 Entire Bar is proud of the principled stand you have taken. Juniors all, terminating VHCC’s
@TheCriminalBar: .@MoJGovUK It is the Juniors who are starting to terminate VHCC’s. Their principles show up your FatCat claims for the sham that they are
@dk25br: With @NigelLithman and Thomas Payne judging the @TheCriminalBar bursary award. Impressed with the talent at the young bar.
@TheCriminalBar: It is about time @cpsuk stopped double booking counsel! Please review your systems. We can’t afford to go to court for nothing!
@TheCriminalBar: .@MoJGovUK 2011 Rape trial shd have started at Leics today. It won’t. Postponed 2nd time, becos no courts/judges available due to YOUR cuts!


Nigel Lithman QC


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