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Monday Message 17.02.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 17 February 2014


Personal Email: [email protected]

This week I sat for three days at Basildon Crown Court. For those of you that don’t know it, it is a haven of peace, separated from humanity by the subway of death, through which many walk to Marks and Spencers and Primark but few return.
In just three days I learned as follows:

  1. Two members of the Bar, aged in their 30’s had told the usher Jackie, that they could no longer afford to stay at the Bar.
  2. That for the first time sitting, I had the experience of sentencing two Defendants committed for sentence on the video link from prison. The system obviously needs tightening up. I ended up asking the Defendant to help out the prosecution on some of the details which he was delighted to do. The second Defendant was not so engaged and preferred reading the newspaper, until I said that if he listened closely he may learn something to his disadvantage. But how can such innovations be anything other than schemes that save money by not ferrying Defendants around the country ?.There are of course many efficiency and cost saving measures that can be put in place.
  3. On day two a case could not proceed as an interpreter had not been arranged to attend court. The Defence counsel made an application for wasted costs. I adjourned it to follow the next hearing.

The reality is that the CJS is a sausage factory and like all sausage factories there are masses of savings that can be devised were this government interested.
I am of course heartily sick of this dispute. It follows me everywhere and into every nook and cranny of my life, but I will not give it up. I am sure that the only way of getting these cuts shelved, which is all we ask, is to stand up to them.
I am proud of the CBA and the way it has unswervingly followed a path that has given the Minister of Justice a way to pause and reflect. That he will not take it is an unreasonable response to a reasonable position.  I asked for a week or ten days to announce the next steps. I was aware that Nick Lavender QC, Chairman of the Bar had been invited in to meet with the Lord Chancellor. I did not take umbrage or indeed anything else at not being invited. But I awaited the news of what had happened.
Rien, Nada, ingenting, niets, gornisht. (Come to think of it I’m not sure we needed an interpreter at Basildon). Nothing whatever came from the meeting.
But then Mr. Grayling met with the solicitors, including Nicola Hill and Bill Waddington. Anything come out of that?  Zero, niks, wala. Not a bean.
So around the corner will come all sorts of responses when the cuts to AGFs’s are given a start date and the Lord Chancellor knows we will not do them. These are now the next incremental steps to try and persuade Mr. Grayling to think again.
The CBA Executive has indicated, me included, that from the 7th March we will not be available to do returns. That is, we will only be doing our own work.
For the non-lawyers that read this and with the greatest of respect I include the Lord Chancellor, there follows an explanation of returns:
From 7th March 2014 many barristers will withdraw their goodwill from the criminal justice system by refusing to appear in court on each other’s cases in protest at legal aid cuts.
Traditionally, criminal barristers have kept the courts running smoothly by moving cases between one another to ensure that every defendant has a barrister in court when the case is called on. The Criminal Bar Association understand that a number of barristers wish to suspend this practice of cooperation (known as ‘returns’) which barristers believe will leave the courts struggling to cope with a huge backlog of work, as barristers have to travel between courts to cover their own cases.
Criminal barristers who take this action are doing so to highlight the vital role they play in the criminal justice system, which they feel is being ignored in Minister Chris Grayling’s proposals to cut £220 million in legal aid fees, cuts neither justified nor necessary.
At the moment there is no end date for this suspension, although the Minister told me some months ago that he believed the lack of resolve plus the lack of finance meant that the Bar could not sustain its protest. 
But by the 7th March, the postponed announcement of the response to consultation may have been published, in which case the next steps will be being considered by them.
Some frequently asked questions:
Q. Will barristers instructed in prosecution briefs be likely to return cases.
A. This action does not apply to prosecuting briefs. 

Q. How long will this aspect of the protest last:
A. The no returns policy will be kept under review and new information / change of circumstances will be responded to. We would therefore suggest that those wishing to protest only consider / manage their diary for the period of four weeks from 7th March
Q. What cases and hearings will this apply to?
A. Those that wish to take this bold and principled step, will apply it to all cases and hearings, be they mentions, PCMH’s, murder trials. Naturally this would not apply to Prosecutions or private cases.
We think the effect will be seen by the MOJ very quickly. We will monitor it to protect the juniors and in order to do so will review it on a weekly basis.
We have of course taken account of the correspondence that we have received on the topic.
HERE is a fuller explanation of the RATIONALE for the policy and a longer list of FAQS
HERE is a PROTOCOL for refusal of returns if that is what you choose to do. The protocol document appears below.
Specific enquires will be dealt with by email at: [email protected]
The 7th march was also decided by the CBA Executive to be a day of active unity to those who wished to step up from the half day of the 6th January to a full day.
It will send out the same message of resolve. A like protocol will apply.
But as it is March, that is what we will do. We propose to march to Westminster.
Again as with all these things it is entirely a matter of choice as to what you choose to do.
The protest will join forces with our solicitor brethren.
Of course the dispute relates to defence fees and not prosecution fees, that said those prosecuting one day and defending the next may wish to come out alongside those defending. If as a prosecutor you choose not to work, make sure you give the CPS as much warning as possible.
Sample letter to professional client HERE
Sample letter to Listing Officers/trial judges HERE
The diary below is directly taken from a practitioner on the North Eastern Circuit. He was called in the early 1980’s. I will call him Mr. Circuteer.
Bail App £100 & a Sentence — Opened and Mitigated — when need to adjourn for a PSR arose — fee tumbled from £60 to £46.50
(Parking £7.20)
Non-effective PCMH £0 (£0 even if effective, as included in fee) & a Mention £46.50
(Parking £4.80)
PCMH £0 (as included in fee)
(Parking £4.50)
Sentence £0 (as included in fee)
(Parking £4.50)
Sentence — Level 1, causing death by dangerous driving — at Court till 3:30 —  £0 (as included in fee)
(Parking £14.40)
TOTAL billable fees: £193 (less petrol, parking, rent & clerk’s fees etc)
I know this is a pretty disastrous week, and, thankfully, they’re not all like this, or common, but it does show that there are “myths and realities”. It also shows the diminution of work at the Bar, as, years ago, if one went to cover a sentence, mention or PCMH, invariably, one would have several, similar briefs.”
We will let you know (if he /she lets us know), how his riches accumulate over the next few weeks.
THE C.B.A. Welcomes three new members to its executive following the election:

  1. Jonathan Lennon, 23 Essex St
  2. David Wood, Charter Chambers
  3. James Vine, 5 St Andrews Hill

Senior members of the Bar. Don’t dither. We owe it to Mr. Circuteer to try and give him a future. That is what the CBA is trying to do.
Meanwhile I’ve begun rigorous training for the Long March to Westminster.  Pass me that bus timetable….


Nominations for Assistant Secretary Position:

Our current Assistant Secretary (Toyin Salako) is unable to take up her position as incoming Secretary. As such the nominated Assistant Secretary, Emma Nash will take over from Dermot Keating as Secretary on 1st March 2014.  


Therefore, Nominations are invited for the position of Assistant Secretary of the CBA. Those wishing to stand must be members of the CBA and must be proposed and seconded in writing or by email by members of the CBA.   

These should be sent to the Secretary:


Dermot Keating

25 Bedford Row


DX 1043

[email protected]


Nominations must be received by 4.00 p.m. on Friday 21 February 2014.


In the event of there being more than one candidate a combined electronic and postal ballot of the membership will be held. The successful candidate will hold the position of Assistant Secretary for a year from 1st March 2014 – 28th February 2015 and will then become Secretary for the following year. 





Dermot Keating

Secretary of the Criminal Bar Association

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