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Monday Message 09.12.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 9 December 2013


Personal Email: [email protected]

As the world mourns the passing of Nelson Mandela, we are reminded of the greatness of one man who stood up for justice – or against injustice. He was not afraid to stand up for what was right, despite the prolonged personal cost, and we can only admire his strength of character. I was blessed to meet Mr. Mandela when he visited the UK some years ago. He recounted how he could find no law firm to give him an apprenticeship in the UK and later none to represent him in his treason trials until a few particular firms came forward, prepared to stand up and be counted. My recollection of him accords with everybody else’s: warm, simple, enigmatic. Head and shoulders above the crowd.
South Africa has always played a part in my life, being where my grandfather was born. Raised near Bloomfontein & studying in Witswatersrand before coming to Bart’s to study medicine. Of significance is the fact that he wanted to read for the Bar but could not afford the 100 guineas pupilage fee. In those days the Bar had not heard of social mobility. We all applauded when access to the profession was improved by the mandatory funding of pupils, paid for by individual chambers, now set at a minimum level of £12,000 p.a. But one wonders what will happen to the opportunities for new entrants to the criminal bar when criminal chambers can no longer afford to fund the training– or the pupils can’t afford to take up such few places that may exist? Within a short space of time, the profession will close to those from less privileged backgrounds, and just like in my grandfather’s day, they will look to apply their abilities elsewhere.
A stark contrast within different parts of the profession was highlighted this week by a commercial set offering pupilages at £65,000 p.a. As this figure does not include any VAT or chambers overheads, in real terms it offers a new entrant – before completing their training – an income of over £100,000 p.a., substantially higher than the vast majority of practising criminal barristers, including those at the very “top”. This is the rate set by the market. Of course, those choosing to practice criminal law have long been aware of the ever widening gap in fee income between themselves and their colleagues in other areas of practice; we choose to practice criminal law for different reasons; we accept the comparative lack of high earnings;  we continue to do so despite substantial fee cuts and personal difficulties; we  continue to provide a high quality service and play a vital part in the effective operation of the criminal justice system, frequently acting on a pro bono basis and spending long hours, often working into the night, for no personal reward. But there are only so many times you can squeeze a lemon and we have now run dry.
We are not asking to match the fees earned at the commercial bar, nor even for a pay rise – such as the 11% for MPs – but we are asking to be recognised as an essential cog in the wheel of the criminal justice system and to be valued for our contribution. We are asking the government to wake up to the impact on the future of the justice system if it destroys the criminal bar; the effect on access to justice for those who need legal representation; and for a government talking “tough on crime”, the false economy of driving skilled prosecutors away from the profession.
If the Lord Chancellor was ever in any doubt as to the depth of the resolve of individual practitioners, this week has shown their resolve to stand up, be counted and fight for the future of the criminal justice system.
The CBA Bursary Awards were distributed by Lord Justice Treacy, who gave us an insight into (soon to be announced) sentencing guidelines in sexual offence cases.
As it happens I had a very enlightening experience in the RCJ this week. A young barrister approached me to thank me for the efforts the CBA were making on her behalf. I asked her to keep in touch. A little later I received an e mail from her telling me that the Lord Justice she had been before had asked her of her journey to court. He was told she had travelled from Anwick leaving at 4 am, made more difficult by her child being unwell before she left. The Judge responded by saying, it is a shame the public do not appreciate how hard criminal barristers work so often for so very little money. It brightened both her and my day and whoever the Judge was – thank you.
What a fiasco. Within hours of putting out a list in response to solicitors unable to find counsel to accept VHCC work at reduced rates, dozens were e mailing and tweeting of their outrage. I’m afraid the Legal Aid Agency made matters worse by later issuing a different list, the implication being that those on the second list would take reduced rate schemes. I have received an explanation from the L.A.A. as to why they released one list, but none as to why they released a second.
In swift succession this prompted sets of chambers up and down the country to issue public statements to the effect that their doors were closed to the acceptance of VHCC cases at the cut rates. Serious cases fixed for later in the year are now left without counsel. I should say that not everybody has said they will not do the work. One person to my knowledge has said they will and I take my hat off to their being prepared to undertake such demanding work for 30% less. Assuming there will be at least 70 VHCC cases looking for counsel, perhaps an average of 4 Defendants per case, that means this woman or man may find themselves instructed for 280 Defendants in overlapping trials. I have to admit that as a junior I occasionally found myself in two cases at once, but 280 would be ambitious even by my standards.
The reality remains: experienced counsel will not do these cases at the derisory rates offered. Inexperienced lawyers recognise they cannot do them and clients will not allow them. There is an old saying about peanuts and monkeys. Please think again Lord Chancellor, freeze the cuts.
The debate in the House of Lords is spearheaded by Lord Carlile QC, C.B.E.
Alex has not for one moment shrunk away from the task of trying to persuade the government of the outrage that is felt in these cuts. He has himself worked within the VHCC system and so is only too familiar with how poor a system it is in the first place. The debate is on Wednesday, but if there are any last minute matters you would like to bring to his attention, please do so via Aaron our administrator on[email protected]
THE 6th JANUARY 2014
The protest that many wish to make is against the 3D’s:

  1. Demolition of the Criminal Bar through unacceptable fee cuts

  2. Dismantling of access to justice

  3. Destruction of the Criminal Justice system

Please think again Lord Chancellor, freeze the cuts and I have no doubt that half days and days of action will not happen.
To assist those individuals who wish to protest, we have decided it is sensible to issue a protocol. At every step we have taken advice from an eminent competition silk.
The rates payable for Crown Court advocacy were fixed by the Government in 2007 following the Carter report. The fees then fixed were supposed to represent reasonable payment for work done. Since that time there has been no increase in fees to take account of the rises in the cost of living. Additionally there has been a series of reductions in fees which has resulted in the average fee payable for a case now in 2013 being over 35% less in real terms than that which would have been paid in 2007. Many Crown Court advocates have seen their fees cut by a larger percentage than that – e.g. Silks involved in murder trials. The Government’s own figures in the first of the recent consultation documents suggested that 60% of the criminal bar now received less than £50,000 p.a. from criminal legal aid – a figure that includes VAT. From the resultant ex-VAT figure of up to £35,000 a barrister has to make provision for chambers expenses, a pension, health insurance etc.
In addition to that the Government has cut the fees in VHCC cases by a further 30% across the board from December 2013 and now proposes to cut again fees payable on graduated fee cases. If these new reduced fees are introduced the overall reduction in fees in real terms since 2007 will be over 41% on average.
The bar has stood firm against further cuts, pointing out that no other profession has sustained cuts of the magnitude already imposed on us. We have been met only with the response that the Government needs to save money and that we will have to bear the brunt of it again. 
In the past the bar has made polite protests and done no more with the result that we have been targeted for fee cuts on a repeated basis. There is now a strong feeling at the criminal bar that if these cuts are introduced they will make it impossible for many to continue in practice. The loss of a large number of good practitioners will either destroy the criminal bar or render it a small and ineffective group unable to prosecute and defend to the high standards that have been expected of them hitherto. The criminal justice system will suffer as a direct result of the cuts. Trials will take longer and Judges will be deprived of the help that they have rightly come to expect will be provided to them. 
It is against the background and for the reasons set out above that many members of the criminal bar intend to attend a series of meetings across the country on Monday 6thJanuary 2014 so that they can discuss their futures. They will be ready to resume by 2pm. It is not a decision that has been taken lightly.
It is of course a matter for each individual barrister to decide whether he or she will protest in this way. It is anticipated however that the likely consequence will be that Crown Courts throughout the land will not be able to sit until 2.00 pm.
The rest of this document sets out a suggested non-binding protocol to ensure that there is minimum inconvenience to the Courts and to lay clients. 

  1. The guiding principle should be that those who decide not to attend Court on the morning of the 6th January 2014 should give notice of their unavailability.


  1. If you are already engaged in a case that is listed for that morning but do not wish to attend until 2pm you should: –


a. Write to your professional client to ask them to communicate with the lay client (making it clear that the obligation on the client to attend court is unaffected);  and

b. Ensure that your clerk notifies the court that you are not attending court that morning.

You should do this immediately so that you will have given the court four week’s notice.

  1. If you do not have a fixture that day, and intend not to attend court that morning, then you should now inform your Clerk that you will be unavailable that morning. You should inform the Listing officer for the Courts at which you would ordinarily work that you will be unavailable that morning. You may wish to avoid listing or adjourning hearings to the 6th Jan time will allow these cases to be heard before Christmas.


  1. If you are prosecuting on 6th January 2014 the same principle of notification and the same procedures should apply.


  1. If you are appearing in a Magistrates Court that day you should notify the Court and your professional client that you will not be attending.


  1. Those concerned that their lay client’s liberty may be specifically at risk on the morning of the 6th January may wish to ensure that arrangements for attendance are made for their professional client’s representative to attend on them until 2pm until such time as you will be present.


  1. If that day you have a privately paying client similar principles apply to those that apply to those who are prosecuting on that day.


  1. Some cases that day may be particularly sensitive and simply cannot be moved until 2.00pm. These though will be rare. If you are in a case involving the young or vulnerable then you should attend on the morning of the 6th January 2014


  1. We intend to inform the LCJ, all Presiders, all Residents and all Circuit Judges of this protest. To this end again a letter has been drafted by the CBA in consultation with the Circuit Leaders.


  1. If you are uncertain how these plans may affect you, please email us at [email protected] 


  1. Each circuit will have a DOA committee. Each circuit will have a team of silks and senior juniors who will try to provide assistance with any potential disciplinary problem. We hope that their services will not be required. If they are, please email [email protected]  

I am arranging to meet with the Lord Chancellor again. I think it important he understands our resolve and our willingness to hold constructive talks with him. I will tell you what he says. We have been privileged to live in Mandela’s days.

Nigel Lithman QC

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