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Monday Message 07.12.20

Chair’s Update:
James Mulholland QC

This is a pivotal week in shaping the future of the Criminal Bar. Should the changes envisaged by HMCTS be imposed on the profession, this will usher in restricted, divisive and discriminatory working practices. We need to attract, retain and promote through the ranks the very best talent from as broad a spectrum of society as possible. If we are to avoid a deeply fractured society, those who prosecute and defend must reflect the State in all its elements. We must continue to strive to bridge the divide which currently exists across gender, age, race, disability and socio-economic background.

We are in no doubt that Extended Operating Hours will be the final nail in the coffin of a viable, independent Criminal Bar.  That viability underpins the rule of law. You undermine one and you damage the other.  It was a former Lord Chancellor, Michael Gove MP, who in 2015 talked of One Nation Justice. For that to occur, everyone must have continued access to a large selection of criminal advocates who come from every walk of life and whose hallmark of excellency is guaranteed by the Criminal Bar. The rule of law requires the weak and vulnerable, whether they be prosecution witness or defendant, to have legal representatives who will act without fear or favour on their behalf.

In order to sustain our profession for this generation and generations to come, the one thing we need to extend is the diversity of the people who become criminal advocates. EOH will, regrettably, have the opposite effect narrowing the characteristics of those who enter the profession, dividing it from those for whom it acts and eventually reducing numbers to levels which will compromise the ability of the courts to function.

We say yes to equality of opportunity for all. We say no to Extended Operating hours. It is a proposal created by those who know little about the daily lives of criminal barristers and one that is wholly inflexible to the needs and legitimate aspirations of a Criminal Bar. We are one Bar and we stand together for an inclusive profession and One Nation Justice.

The Consultation closes at 23.45 hours on Thursday 10th December 2020. Here is the email for the submission of responses:

[email protected]

It is rather telling that the email address makes reference to “Extending Operating Hours”.

We remind you once again of two important documents for your urgent consideration that were published last week:

  1. Letter to HMCTS on behalf of the CBA setting out our strong objections to the further expansion of EOH across our jurisdiction
  2. Report of the CBA Working Group on Court Capacity, published today on the CBA website

We urge you to respond to the HMCTS consultation. Despite the structure of the five questions posed, you are entitled to reject the Scheme as per the wording of HMCTS in the initial paragraph at page 29 where it states that ‘[w]e would like to hear your views on whether we should proceed…’.

Standing up for lawyers:
Over the weekend, a member of the public, a self-styled “political commentator” with more than 15,000 followers on social media, decided to publish an unwarranted attack on a criminal barrister following public coverage of a murder trial.  The contents of the publication were reported to the relevant media platform by a large number of individuals including many criminal barristers and, as a consequence, removed from the site. It demonstrates how effective we can be when we support each other in the face of aggression. The barrister had been instructed to act for the defence. A criminal barrister may defend one day and prosecute the next.  Such attacks are based on a complete misconception as to the role of a criminal advocate and an innate prejudice against our adversarial criminal justice system. They also encourage others to rely on speculative comments based on inaccurate information as to what took place in a court of law. The justice system is there to protect the individual against the powers of an overreaching State whilst upholding our criminal laws equally on behalf of witness, complainant and defendant alike; that is what the rule of law means.

Recently, there has been a marked increase in both the number and severity of verbal assaults on lawyers from various sections of the public, shared and amplified on social media sites. This has led to a worrying trend in calls for others to join in these attacks and harass, intimidate and threaten lawyers for nothing more than doing their job. This is an unacceptable assault on lawyers and the rule of law upon which we all rely to keep us safe from harm.

Silence is not an option in a situation such as this as it only leaves us vulnerable to the continued anarchic shouts of the mob in the future. The first to be attacked by mob rule will be the lawyers, followed by those whom the lawyers defend before, ultimately, the democratic State upon which the people rely to keep them safe. However, by then there will be no lawyers left for the State to turn to for assistance.


James Mulholland QC


The Criminal Bar Association

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