Skip to main content

Monday Message 03.03.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 3 March 2014


Personal Email: [email protected]

This has been the week for announcements: two dignified and evocative, one shabby and misleading. The remainder a mixed bag.
Those who have spent their life at the Bar, the Judiciary, senior and junior alike, will have read with sadness of the death of two of the great characters of our profession.

This week The Inner Temple announced the passing of Florence O’Donoghue (as Irish as W.B.Yeats) and Graham Hylands (as Northern as The Angel of the North). Florrie moved from student mess to Hall mess at Inner, telling tales of the Bar to any student who happened to have a cigarette on him or her (Florrie unfortunately had run out), whilst Graham would perform much the same feat at Brio’s Italian Restaurant, Leeds, during every lunchtime adjournment.
Larger than life characters imbued with decency and most significant, individuality. If the Minister of Justice had known them or their ilk, perhaps that would have made him pause before burying this profession. If not for them, perhaps the three barristers who wrote to me thanking me for my leadership, but saying they now must leave the Bar. Two are single mothers, one earning £39,000 before expenses saying she is probably going to work as a child minder – and not her own.

On Monday at a meeting, I asked the head of the Legal Aid Agency when the announcement by the government was to be made. I was told: “I don’t know. It will be fairly imminent”.
On Thursday a number of us took a call from the Minister of Justice, telling us the cuts were to be 6% and come in after the Jeffrey Review in the summer. Receipts of £50k and less would be cut by 2%. There would be interim payments and revised cracked fees.
It was presented on its face as if the Minister was giving the Bar a “fairer” deal than those on the Solicitors side of the profession (8.75% cut now followed by another 8.75% next year). But as I put the phone down it all sank in. How can the Criminal Bar survive cuts of this order? And what does 6% mean? Is it capped at 6% or an average? The answer is supposedly “an average”. The Bar Council enlightened me: “Its swings and roundabouts”.
So what if you have an all “roundabouts” practice? The answer is very different. Many have begun to do the simplest of calculations. What if my practice last year were to be repeated but at the new rates? The answers are coming back 10% cuts, 12%, 18%, 23%, forget it %, don’t bother to go to court %, bankrupt %.
We should have known that the % cuts for the Bar would be presented with “spin”. We’ve already seen how the figures they’ve published are calculated to mislead. An “average 6%” does not bear any sort of examination. And the VHCC cuts of 30% are in addition.

The Circuits have all agreed they support the CBA policies of A DAY OF ACTION this Friday plus THE POLICY OF NO RETURNS. We are united in purpose and action within the criminal bar and with the hundreds of solicitors firms up and down the country who now face extinction. Our strength comes from the collective decisions made by individual practitioners.

Please stop asking me what you should do. This is for you to determine as an individual, it is not for me, the CBA, the CPS, your colleagues or anyone else to tell you what to do. Those who choose to support this day of action, or indeed any other, take a share of the responsibility for the future of our profession. The power of public opinion is in your hands. The future of the landscape of criminal justice in this country depends on the courage of such individuals.

The CPS has sent various letters of differing tones. I still standby my estimation of our DPP as someone who acknowledges and respects the role of the criminal bar. I do not believe Alison Saunders shares the Lord Chancellor’s view that the independent criminal bar can disappear without serious consequences for the criminal justice system in this country. Like the strong opinions expressed by Treasury Counsel in their response to the consultation, we are all aware that the public may not care who defends criminals, but they certainly care who prosecutes them.
This is the response of Mukul Chawla QC to one such letter HERE.  The response of Alistair Webster QC HERE and Sarah Forshaw QC’s response HERE.

The response from the Bar Council to Thursday’s announcement emphasised the sense of betrayal felt by practitioners at the Ministry’s total disdain of the thousands of responses to their consultation, link to Nick Lavender’s published response HERE.  Following the “One Bar One Voice” meeting across the various specialist bar associations on 15th February, we may see practitioners not affected directly by the cuts choosing to support the day of action.

The Heads of Chambers of the South Eastern Circuit appeared particularly exercised as to whether Wigs and Gowns should be worn on the day.
The reality is that some protestors, probably the less self conscious and more determined, will wear robes. I take my wig off to them. I myself will probably be wearing something that suits my figure, something designed by Millets Camping Equipment store.
I have also heard from those most vehemently against the wearing of robes that they also disapproved of days of action, no returns and every other action. There are those few that have said no to everything. Do nothing and it will all be fine. Really?


Again it is up to you as to how this is implemented. Please do not ask me what you should do. The start date is the 7th March.
Will I personally be accepting a return from a member of the Bar or solicitor to whom it has been returned? No.

Between now and the summer we must change this Government’s mind. We are fighting for survival.
It was heartening to hear the Leaderene of the South East Circuit repeat her resolve to follow the policy of “Not a penny more”.
The overwhelming strength of views expressed at Saturday’s meeting of the Northern Circuit was equally robust.  Vice Chairman, Tony Cross QC’s account of that meetingHERE
The policy of No Returns, if supported, will send the clearest of messages within the month. But meanwhile we must give leadership as to our next move. I rule everything in as the next move and nothing out. No effective leader will do otherwise.
Of course I know how high feelings are running – do not confuse me with the person who puts himself first. I will see this through.
I will miss Florrie O’Donoghue and Graham Hylands, although I knew them less well than others. But I have known and know hundreds like them. They were their own men. They would not be told what they should do. Like you they spent their professional lives choosing the right thing: when to offer no evidence, when to call their client, when to forgo attending their children’s school events in order to stay in and work, when to curtail their planned family holiday to prepare a brief.
They would know the time to stand up and speak out is now.
Nigel Lithman QC

View more news