Skip to main content

Monday Message 07.07.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 7 July 2014


Personal Email: [email protected]

TOUR de FORCE 2014
As the cyclists participating in the Tour de France wind their way through crowds from Yorkshire down to London, we watch with amazement at the hill climbs and what I believe technically are called “le flat bits” and await the resolution of each stage. So too we progress through the stages of the issues between the independent Criminal Bar and the MOJ. We are pleased that the most pressing is now resolved. A joint announcement to this effect has been made to the press and, in conjunction with this MM, is to be read as the CBA’s position.
Let us rewind some weeks ago to the decision in the Operation Cotton case. Some 41 members of the Criminal Bar, despite the impact on their livelihoods, had refused to undertake this and other current very complex High Cost cases at the proposed cut rates; we also faced the unacceptable threat of a further expansion of the PDS to undertake that work. In its’ judgment, the Court of Appeal expressed the view that “it was of fundamental importance that the MOJ led by the Lord Chancellor and the professions continue to try to resolve the impasse that presently stands in the way of the delivery of justice in the most complex of cases: this will require effort by both sides. The maintenance of a criminal justice system of which we can be proud depends on a sensible resolution of the issues that have arisen.”
This has been recognised and an agreed outcome achieved through steadfast resolve and an open mind. The government has now offered fixed fees to those barristers involved in these particular cases. There will be those who want to know the nitty gritty detail and sums involved. Suffice it to say that the fees offered have been accepted by the individuals concerned and enable these cases to be done. They have signaled their content with the outcome negotiated on their behalf and consider these fees to be appropriate and acceptable. This has always been a commercial decision by those offered these cases. It is not an issue on which the wider membership of the Criminal Bar can impose their views.
But for the rest of the independent Criminal Bar not directly involved in these particular cases, this agreement acknowledges that it remains vitally important that those most experienced and best placed to do this work continue to do so. There is thus no need and the government has agreed it will not expand further the Public Defender System. This ensures that the rights of a client to be represented by whomsoever he/she wishes are respected. It also signals to the City and those bringing their business to the UK that they can continue to have confidence in our justice system.
Moving forward, the way such High Cost cases are administered is seen as unnecessarily bureaucratic and we will immediately progress to working with the government to replace them with a better scheme. Our position remains as before, the independent Criminal Bar will continue to undertake such work where appropriate fees are offered.
Of course nobody can pretend we have got to this place without a good deal of pain. This is not a moment for triumphalism or celebration, other than the triumph of good sense and the celebration of the Bar being restored to its even keel in this regard. This period has been one of turmoil for the legal aid system and we do not forget that major problems remain, amongst them reduction in solicitors’ contracts which erodes public access to lawyers. These problems need to be addressed.
Since March there has been a protracted period of negotiation between us and the Ministry to reach this stage. It will continue and is being formalised. This is undoubtedly the way forward. Relations between the Bar and Lord Chancellor are now back on track to where they should be. The history of the relationship between the Independent Criminal Bar and the Lord Chancellor is an important one and should not be diminished. It can adapt to the modern era most easily through the continued mechanism of consultations between the Bar and the Lord Chancellor through his (or her, if there comes the time) ministry.
The past months have also led to a good deal of uncertainty and that includes the impact on centres such as Southwark in being able to list its cases. In this regard, we can also assist the Resident Judges by discussing the courts’ administration. The Bar is too large a body of talent and expertise not to be harnessed into assisting with the decision making process. We look forward to working with the Leveson and Rivlin reviews and helping to increase efficiencies in the provision of legal services.
I’ve heard it said that during the last weeks whilst we moved towards this announcement we have overlooked other aspects that are of real concern to the Criminal Bar. I assure you we have not forgotten other concerns, for example the issue of QASA, the hearing of which is imminent. Remember those spinning plates? Once I flip each stick a little more, Tony Cross will slide in and take the task over.
Last week I pointed out the numerous different parts of the press that have become pro Bar.  I am told this issue of “Country Life” contains an excellent editorial on the Bar and the Criminal Justice System. Who’d have thought it? Next stop Steam Railway Monthly.
I am pleased to announce that two candidates have come forward for the post of Vice Chairman: MARK FENHALLS QC and PAUL KELEHER QC. Each would make a worthy successor to TONY CROSS QC and during the next year will, I am sure, take on part of his burden. I have no doubt each would make their period in office their own Tour de Force. 
Voting will open on 9 July and close 31 July, voting will be by electronic or paper vote. Candidate’s manifestos will be sent out with voting information.  It is a matter for you to decide who will wear the Yellow Jersey.

There is to be a Thanksgiving Service for Richard Sones at The All Saints Church, Ockham, Surrey on 10 July at 12 noon
5 KBW has arranged a service in London at Temple Church on the evening of Wed 16 July at 6:15pm.
The service will last for approximately 1 hour. It will be followed by a reception in Parliament Chamber, Inner Temple. It would be helpful if those wishing to attend the reception could notify [email protected] in advance.

View more news