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Monday Message 16.12.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 16 December 2013


Personal Email: [email protected]

Your stocking filler “bumper edition” contains:

  1. “The Christmas Carol “: What the Dickens is happening?
  2. A tavern in Westminster
  3. The 6th January: D Day
  4. Meetings with the Lord Chief Justice and D.P.P.
  5. Message from the Lord Chief Justice
  6. Statement from Tony Cross QC
  7. A Christmas Review

It is a cold and unhappy time for the Criminal Bar as we see the image of Ebenezer Scrooge being taken round between Christmas Past, Christmas Present and Christmas Future.
Christmas Past: Ebenezer moves into the picture of an Inn of Court, it is dining term, students sitting with barristers and then into a set of Chambers, a full library and lots of pink ribbon and finally a barrister’s home, fire in the grate, turkey on the table. He sees criminal barristers of all ages, amidst their colleagues, going about their daily work, proud to be part of a noble profession, contributing to the essential smooth running of the criminal justice system and fairly rewarded for their efforts: a contented client to the rear, a career path before them, order on the streets maintained by skilled prosecutors, and the “scales of justice” evenly balanced. Ebenezer sleeps content at what he has seen.
He wakes. It is now the 6th January 2014. The ghost of Christmas Present has come to show Ebenezer, in contrast to his predecessors’ eras, how the “scales of justice” are now badly damaged; to show him why this criminal bar is being driven to take action in its desperation to try and save their profession and prevent the desecration of the Criminal Justice system. He can see several Crown Courts with no barristers working in the morning. “Take a long look” invites the Ghost, “this is what awaits the Criminal Justice System if you continue in your mean and cruel ways”.
He finds himself back in his bed, but is rudely awakened by a new apparition. It is the Ghost of Christmas Future. He is lured in trepidation finally to the graveyard, where therein lies a headstone:
“The Criminal Justice System
Destroyed in the year 2014
For want of £24 million”
Ebenezer Scrooge shrinks back: “Is this really to be my legacy?”
It is a matter for you Ebenezer. Stop the Cuts and the epitaph will change. You are our Lord Chancellor. You took an Oath to Protect the Rule of Law. We ask you to fight for the sustained future of the Criminal Justice System. Safeguard the profession. Listen to the wisdom of those with experience. Do what you know is right.
If it was ever thought these are just the sentiments of the “self interested”, then listen to the voices of experience, of those most learned and with no personal axe to grind. During the debate to annul the Statutory Instruments cutting VHCCs (transcript availableHERE), Lord Carlile, Baroness Deech, Lord Brown of Eaton Under Heywood, Lord Woolf, Lord Hope of Craighead, Lord Mayhew, Baroness Scotland, Lord Alton, Lord Thomas, Lord Bach, Lord Beecham each in turn warned of the false economy of the proposals, the failure to undertake a proper impact assessment of the effects of the cuts in terms of lost business, delayed and lengthening of trials, on equality & diversity at the Bar, the lack of investment in the administration of justice and the rule of law. References to “a shabby example of Government behaviour”, “gangrenous wound” and “the figures are simply misleading” were not throwaway lines.
They foretold that the proposed action to make savings would not in fact achieve its purpose, while “creating a serious risk of damaging severely the criminal justice system of this country”. They implored the government to think very carefully about whether the effect of these changes, in the short, medium and long-term, are really worth the apparent saving. As Baroness Scotland said “I hope that our view is that justice is not for sale, that we understand its value and not just its cost”.
In response, Lord McNally for the government did not begin well:
“This is the first time that VHCC cases have been cut by this government. I do not think they were cut by the previous government. Were they? I stand corrected.”
“These matters have been discussed over a long period. We received 16,000 responses from representative bodies…” (did he forget to add “and on the issue of proposed cuts we ignored them all”?).
Had this been Counsel in the Court of Appeal, he would have withdrawn his application.
This excellent debate was followed within days by the publication of the Human Rights Joint Committee’s Report on “The implications for access to justice of the Government’s proposals to reform legal aid” available HERE). More criticism here of the government’s cavalier approach to ensuring the protection of fundamental rights, while focusing instead on rushing through cost savings.

I have been asked by a number of questions about the protest that many wish to make on 6th Jan.
What is its’ purpose? It is not just a stand against fee cuts for the Bar; the future of access to justice in the UK and the safeguarding of the Criminal Justice system cannot be sustained if these fee cuts pertain.
Why do people wish to protest? It is so they can raise awareness and publicise what will happen to the future of the criminal justice system if the Government does not reverse its’ course. Those due to work on the morning of the 6th January, whether in the Magistrates or Crown Court, whether instructed in legal aid or private cases may choose equally to join in the half day of action.
Why is it half a day, rather than a whole day or more? It is a reasonable and proportionate step in response to the MOJ’s continued actions and refusal to change its’ course. Those wishing to protest in this way are not acting lightly; and whilst they may have the ability to bring the Criminal Justice system to a halt for a full day, they are taking a more measured, incremental approach. The message can be delivered at this stage by limiting the inconvenience to the courts and lay clients to half a day while ensuring that those most vulnerable are not left without representation.
What should I do on the 6th January if I wish to protest? Ensure you notify everyone you need as to your intentions (see the non-binding protocol set out in last week’s Monday message). You will find two sample draft letters hyperlinked, which may also assist, one to a professional client, the other to the CPS.
Sample letter to CPS Solicitor
Sample letter to Professional Client
Frequently Asked Questions
My meetings with both of them have been as cordial as they have been open and frank and I have no doubt this will continue. All I can say at this moment is that there was not a hint of hostility and we are lucky to have them. This Message contains a lot of the things we say “No” to, but let us not forget the things we say “yes” to.
I have assured the Lord Chief that we will continue to play a positive role in the development of a Criminal Justice System in which the Bar plays a pivotal part.
This morning I received the following message from the Head of his legal team, Claire Fielding:
Dear Nigel
The Lord Chief Justice and Senior Presiding Judge sent the following joint message to the Presiding and Resident Judges on Friday evening:
“Dear colleagues
You will be aware that members of the criminal Bar intend to stage a protest on Monday 6th January 2014, when they will make themselves unavailable for court until 2pm.  The Criminal Bar Association, in consultation with the circuit leaders, has issued a non-binding Protocol in relation to this action, which may extend to defence solicitors in the magistrates’ court.  
We have received a lot of queries about the position of the courts and are aware that many of you are receiving similar queries. In light of this, we thought that it may be helpful to confirm our view in writing to you all and to make this view public in due course, in order to minimise uncertainty.
The position of the judiciary is straightforward. It is constitutionally independent.  Monday 6th is a working day and as such, the business of the court will go ahead as normal. In line with usual practice the court should hear any applications to adjourn, taking into account the interests of both parties and the administration of justice, but will only remove a case from the list if an application is made on properly arguable grounds.
Each decision regarding listing prior to 6th January must of course be for the individual judge to which the case is allocated or the Resident Judge, taking into account the particular circumstances of the case. All decisions on the 6th January itself are for the judge listed to hear the case that day”.
Best wishes

I replied with:
“Would you thank the Lord Chief. He could not be fairer”
“The CBA have formed a National Committee. This is structured in a way so as to ensure close liaison with the Circuits. It is comprised of your circuit’s nominees to the CBA executive. In the case of the South Eastern (having regard to its size) there are additional members over and above the SE Circuit reps.
The National Committee will give guidance and direction to the Circuit committees. The Circuit reps will form their own committees in consultation with their Circuit Leaders. Each set now has a CBA representative.
The CBA Executive debated as to what shape the day should take. We concluded that there should be a meeting of Barristers (and we anticipate Solicitors) outside at least one Crown Court per circuit. This is necessary so as to secure maximum publicity of the right sort.
The meetings outside the Court will be brief and a message to the press and public will be read out. The message will be the same but possibly subject to regional variations designed to attract particular attention of the local press.
The bigger Circuits will wish to have meetings at a number of centres.
Ultimately though the locations will be a matter for the Circuit. Decorum will be maintained outside of courts and any placards/banners will be supplied by the executive and on theme.
Some Chambers in Manchester and Preston to give two examples have already notified their solicitors that none of their Counsel will be attending Court on the morning of the 6th – this though is a matter for each individual and set.
The NC will be on hand to deal with other matters that arise. We are liaising closely with the Solicitor groupings. We encourage the Circuits to do likewise.
Discipline. We are forming a small group of Silks who will be on hand should the need arise. The Circuits will have their own teams to advise
Progress. I am pleased to report that considerable progress has been made. I was particularly pleased that the Western were first out of the blocks closely followed by the Northern, Wales and Chester and the NE, all of whom seem to be well on their way. Andrew Langdon and Andrew O’Byrne are part of their respective Circuit committees. The Western are organising a team to visit a local school on the morning of the 6th to deliver a talk on the CJS.
The response so far to the protest on the 6th appears universal.”
My strategy has been to take a stand against further cuts with determination. It means that when we say we will do something we mean it. I have met with the Lord Chancellor and continue to offer to do so. What have we done over these past few months?
a. Said “No” to QASA in the Courts. We continue to do so. 

b. Surveyed the whole of the Criminal Bar through their Heads of Chambers to establish the strength of their resolve 

c. Roundly said “no” to VHCCs at reduced rates. The Bar has closed its doors to undertaking these highly complex cases at derisory fees. 

d. Submitted our extensive response to the Second Consultation on Legal Aid 

e. Held a highly publicised day’s rally at Lincoln’s Inn on a Saturday, outside court time. Further similar meetings and events have taken place on the circuits. 

f. Garnered support in the press and Westminster 

g. Proposed participation in a half day refusal to work in court 
h. Undoubtedly a refusal to work at AGFS’s revised rates 

i. A response from us to the Consultation Paper Publication 

j. Further step by step measures if necessary 

Meanwhile we ask the Lord Chancellor to show the Criminal Bar the respect we deserve by entering a constructive dialogue with us. We ask him to “freeze the cuts” and undertake a proper assessment and costing of the criminal justice system in the light of the Jeffrey Report once it is published. He knows we will not take a penny more cuts, but a system such as ours is too subtle and intricate to just resolve around money. It is also too precious to watch it disintegrate.
I represent 5000 of you and it remains an honour to do so. I often look wider than my immediate officers or executive to advise me, but of course the roles that Tony Cross, Dermot Keating, Tom Payne and Aaron Dolan play at the heart of this are invaluable. There are many of you in addition that work tirelessly for the CBA and I would like to thank you. I wish you all a happy, healthy and peaceful holiday.

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