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Monday Message 05.05.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 5 May 2014


Personal Email: [email protected]

Last week I was travelling along the Westway towards Shepherd’s Bush when my front nearside tyre hit a pothole and punctured. Do not panic dear reader, Tony Cross and I always make sure that we are in different places so as to provide continuity in leadership should one of us be “taken out”. No brand accreditation permitted in the Monday Message but Kw*k F*T soon had me back on the road.
I was surprised at the blow out as the government in the Spring Budget had committed £200 million to the repair of potholes. This is a nationwide scheme as there is no point mending the holes in Essex if the moment you cross into Suffolk the same problems present themselves.
Doesn’t the government now have to take the same approach to the CJS as it has to potholes? The money has been found for the roads (coincidentally the same £200m being stripped from the CJS), surely it must now be found for supporting the criminal justice system? The reluctance of HM Treasury to fund a sustainable justice system is causing it to continue to spiral downwards towards its ruination. It is falling apart.  It has to stop.
We are at a critical point. It is time to stop blaming the lawyers for greed and to rethink this. Playing a “blame game” does not address or fix the problems. It is time for the government to listen and work with the professions to secure the right framework and fund a sustained criminal justice system. It must decide what “British Justice” actually means and its true value to this country, or whether it wants to be credited as the architect of its downfall. It can re-think its position, “join the dots” and see the wider implications for our society and its’ own income stream from the billions invested in the UK each year as a result of our world renowned legal system or simply ignore its’ responsibilities until it is too late & the price of its short-sightedness are insurmountable – both in terms of the human impact and financial costs.
Unlike a Tale of Two Cities whilst this is “the worst of times” for the legal system, it is impossible to describe it as also “the best of times” and none of us take pleasure in the events of the week just gone. At what point will the Government stop and heed the warning bells?
LORD JUSTICE NEUBERGER – has described the cuts in legal aid as creating “a serious risk of people being denied access to Justice”.
LORD PANNICK – has described the erosion of legal aid for Judicial Review as defining “a society with problems”.
SIR EDWARD GARNIER QC – In summary told the Guardian, “the Ministers at the MOJ would not do such a case cut by 30%. This is nothing to do with a Barristers strike. The system is going wrong. The government is taking a short term cock eyed view of how to deal with a reasonable desire to cut expenditure. They are not going about it the right way and the maintenance of law is suffering as a consequence” Read the article HERE
H.H.J. LEONARD QC – has ruled that through the lack of proper qualified and experienced representation, the Defendants in Operation Cotton cannot receive a fair trial: “To allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court”. The judgement can be read HERE
NICK LAVENDER QC – has issued a further statement on the Bar Council website. Strong but sensible and not allowing the government to carry on blaming the Bar.
“It is a shame that the government did not heed the warnings it received. It is also a shame that the Government is now trying to put the  blame  for its own actions onto barristers, when the truth is that no-one can be criticised for deciding not to accept a 30% cut.” Link HERE to statement on Bar Council website.
None of this has come as a surprise to anybody.
Our joint statement put out after the ruling  seen HERE, repeated the fact that there was not the fat in the system to cut in the first place , as made clear by everybody over the last year, including Lord Faulkes. Remember these cuts come on top of years of previous cuts. The Criminal Bar has been pared to the bone – it already offers excellent value to the taxpayer.
My interview to Channel 4 News made it clear that the refusal by the members of the 70 Chambers approached by the solicitors in the case to take the work was not the result of a boycott, official or otherwise, but from an unwillingness by each individual approached to take up a contract that has been cut by 30%. This is the reaction of a free market.
By contrast the Ministry’s tone was different. Again we had figures bandied about, ambiguous and unexplained.  “A barrister will make £100,000 from such a case”.
Including VAT?
A year’s work?
Minus expenses?
Debunking these figures is the excellent “maths lesson” from Simon Myerson QC: Read it in full HERE
Even if a Barrister could make £100,000 from such a case, and prep and trial takes the best part of a year, why pay a Public Defender Silk £125,000 a year, plus expenses, pension and that all important sick pay? How is that offering “better value” for the taxpayer?
These employees will not give the taxpayer the same value for money. They will not work evenings and weekends. They can be expected to work with all the enthusiasm of an employed lawyer. Unfortunately the government is on record as saying they are indifferent to the quality of the lawyer. There is no doubt that this will end up costing the government far more than if it simply made the work available to the independent Bar at the rates they originally agreed to pay.
The fall out is worse. What hope will we have of attracting overseas investment into this country without the legal infrastructure behind it to deal with fraud? And how might the City react to what could be seen as a “fraudster’s charter?”
And meanwhile the problems go on
I witnessed this first hand. In the case in which I was representing the first Defendant listed for sentence before HHJ Zeidman QC at 10 a.m. on Friday, the prison service announced that the Defendant could not be brought from prison until 4.30 p.m. The case has to be relisted next Wednesday. This waste occasioned by either the prison service or Serco will have cost the government 1000s of pounds. The authorities are being asked to come to court to explain a problem – & unnecessary waste – that we see every day.
And on
Neurologists are refusing to compile expert reports or give evidence in criminal trials as their fees have been subject to 20% cuts. Of course it is their fault.  Of course they too are being “greedy”.
I’m afraid the Government blames everybody from A – Z. Unfortunately they have missed out the letter G for themselves.
Just look at the press reports. The media is agreed, even the Mail. To blame the problems on greed is a finally exploded myth.
The FT Editorial: “Legal Aid cannot be compromised: If the legal system in England and Wales is to be truly just, it requires equality of arms between prosecutor and defendant. An individual facing trial is, more often than not, someone whose liberty is at stake. It is a basic principle of justice that such a person must have access to qualified legal counsel, irrespective of income”. Read the article HERE
The Public Defender Service were said to be hanging around touting for work in cases where the solicitors were refusing to apply for ROs. How crummy is that? Sources report they were even provided with papers by the CPS representatives in cases where they had not yet been instructed. Surely not? What about professional ethics?
I am afraid the dignity is being sucked out of the profession.
I do not want to say I told you so, but for 8 months I’ve told you so.
Featuring this week: One is tall and handsome, the other is George Clooney.
Alex Cameron QC must be praised and thanked for his hard work and ability in presenting the defence argument pro bono and presenting it brilliantly.
Of course also acting pro bono are our lawyers in the QASA leave hearing on 9th May. Our regulators the BSB will not.
Meanwhile Gorgeous George has snagged himself a barrister from Doughty Street Chambers. That must have taken some clerking!
Have you booked your ticket? Space is getting tight, don’t miss out on a great evening! Further details on how to book are available HERE or by contacting Aaron. 
Despite financial constraints, the profession continues to do what it can to help support new entrants. If you are eligible, please apply now , further details are available HERE
The traffic lights are at amber. Warning lights are flashing. The Government still has time to decide if it wants to go to green by solving these problems or back to red. I’m for green.

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