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Monday Message 17.03.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 17 March 2014


Personal Email: [email protected]

So let us draw back and survey the scene.
By Thursday afternoon the government announced its package for public sector workers. They are all getting a 1% increase (including Judges). The nurses were immediately considering industrial action as some were only getting their increases in other ways and not the 1%. We don’t begrudge them – but one wonders how they would have reacted to announcements of “an average 6%” pay cut on part of their salary and a 30% pay cut on the other?
The Criminal Bar of course are getting nothing – when all we’ve asked for is a pay freeze. Actually, the Criminal Bar are getting much worse than nothing. No goodwill, no respect and no consideration from the government, instead nothing but contempt.

We have shown this week what happens when goodwill is withdrawn from us. We are able to do the same. Hundreds of cases have been affected all over England and Wales by the No Returns policy. The message you have chosen to send to the MOJ has rung out loud and clear. In the absence of their goodwill, you are only prepared to do your own work. In this past week at least 200 cases have been returned, only 3 have been picked up. As professionals, we take no pleasure in causing disruption to the courts or in leaving defendants unrepresented. But our goodwill has been taken far too much for granted.
On Wednesday as the policy approaches its half way point, we will consider what it is achieving. But the answer so far is pretty clear. It is only the professionalism of the independent criminal advocates, frequently working for no fees, who have been helping the system to function smoothly. Our goodwill is the “oil” that keeps the machinery running and helps the delivery of a cost effective and efficient criminal justice system. Along with the Bar’s unwillingness to undertake VHCC cases at paltry rates, this shows the Government that its “impact assessments” underlying the cuts were very far wide of the mark. Operating the system without the goodwill of the independent criminal bar is a wholly false economy.
In the meantime, any doubts as to the protocol you should follow, please attend to the Lord Chief Justice’s directives HERE. They trump all others including the CBA’s.

On Wednesday evening attending on Dominic Grieve with Nick Lavender, the Bar Council Chief Exec and Sarah Forshaw, we set out all of the above. I emphasised how little we were asking: a delay on cuts until after the reports of the 2 formal inquiries and in the meantime a proper engagement with the MOJ.
I observed that our demands could not be less, but the Minister must take his foot off our collective necks.  If he were to do this, normal service could be resumed.
The stock response from the Attorney, as with the Minister: “Well, if you won’t do this work, we’ll bring in someone that will.”
Who are you going to call? Ghostbusters? My Cousin Vinny?

What follows again demonstrates why maintaining the expertise of a strong, independent Bar is so vital.
On Thursday, Emma Stuart-Smith and I attended the House of Commons to give evidence to the Criminal Justice and Courts Bill Committee.  We gave evidence alongside Martin Westgate QC of the Administrative Law Bar Committee for a very strictly monitored time period of 30 minutes. 
The wide reaching Bill proposes to remove automatic release for those sentenced to extended sentences and, for determinate sentences for certain offences, the release instead to be at the discretion of the Parole Board.  It also proposes to introduce a mandatory court costs order to be imposed upon sentence, new offences for jurors and amendments to judicial review funding.
We had no significant concerns with the disposal of certain, non-imprisonable offences being dealt with by a single lay magistrate.  I expressed my view however that the removal of automatic release dates would bring back the problems of IPPs and spoke of the dangers presented by uncertainty as to the length of a sentence.  I added that the imposition of a mandatory courts cost order was wrong in principle. Tempting as it was to ask it be imposed and the monies fed into funding legal aid, my experience as a Recorder tells me it has no role in court proceedings. You can hear it now: “4 years Snodgrass and £80 levy. Pay it on your way downstairs.” My estimation of politicians grew even higher as I was talking about the new juror offences when time was deemed to have run out and I was stopped mid sentence. Not for the first time in the last 6 months were my words found dispensable.
I mention this new legislation in order to pose the question again. Who are these “other people” that are going to help the courts interpret statute and run an effective court system? Greg Bull and his two silk friends can’t be everywhere. Or can they? Southwark on a silk’s brief, Liverpool on a junior’s, maybe Amicus Curiae to a VHCC abuse argument, before popping over to the Hague?  We know when it comes to the PDS, the Government is prepared to ignore their oft repeated mantra “we need to deliver value to the taxpayer”; maybe in addition to paying their fares, expenses and pension, and a salary higher than the fees the Government says it can afford to pay the Bar, they’d like to buy them a little plane: “P.D.S. 1” and then they can cover all our work?
Meanwhile the actual Amicus Curiae will be on Public Law rates not Criminal Legal Aid Rates.

The Bar Council meeting on Saturday included the attendance of Dominic Grieve and a large crowd to debate the Government’s response to the second consultation on Legal Aid. It is remarkable to hear Nick Lavender, the CBA and every other “eminence grise” speaking with “ONE VOICE” and making the same valid points:

  1. The figures are not comprehensible
  2. A 6% cut is not what it says
  3. The crushing of the CJS reverberates into the wider economy as vast litigation, worth billions to this country, will go elsewhere
  4. The effects on equality and diversity will be irreversible
  5. All of this is to save £10million
  6. The Barristers’ Benevolent fund, says one of its trustees, has never been in greater need.

Our strength comes entirely from unity and we have demonstrated to anybody who cares to look that the criminal bar is united. But we are also united with the aspirations of solicitors which mirror our own. Like a Newtonian principle our support for each other is mutual and total. The CLSA have organised their own national meeting, convened at short notice. They are convening a meeting of all firms undertaking publicly-funded criminal defence work on the 19 March starting at 2pm in Manchester (The Palace Hotel). An equity partner (or someone with authority to make decisions on behalf of their firm) from each practice should attend so that the profession’s next steps can be considered at national level.
Please urge your solicitor colleagues to send a representative.
The link to the booking form appears HERE

The Circuit Leaders and I agreed at Saturday’s meeting that we found your resolve remarkable and awe inspiring. Even those at the most junior end and those who are struggling want your views heard.
You have demonstrated what the Minister predicted you would not. He told me last September that “the need to pay mortgages” made you incapable of refusing to work at reduced rates. Perhaps for a handful he is right. But for the overwhelming majority, you have showed courage and gumption despite the financial pain and we can only thank you for your support.
What you have done is to show him that so far you have found 4 ways of demonstrating your views: Days of Action, No to VHCCs, No to Returns and No to working at reduced rates. I am sure there are plenty more NOs where they came from.
Veiled threats from the government of “finding others to do the work” and “OCOF” add fuel to the dispute. Isn’t it time instead for the Government, the MOJ and the AG to appreciate the value of what we offer? And show us some Goodwill?

This week one of the Bar’s favourite daughters, Caroline Haughey,  lost her father in a sudden and tragic and highly publicised helicopter crash. She has been a supporter of the CBA every step of the way. Indirectly so was her father. We send our deepest sympathies to Caroline and her family and we print below her tribute to him.
“My Father was a ferocious litigant, closet lawyer and a huge admirer and supporter of the Bar and in particular the Criminal Bar. He recognised the challenges we face but knew that we as practitioners had integrity, intelligence and a desire to ensure that all men and women were equal before the law irrespective of their offences, beliefs or finances. He was incredibly proud of what we do and will always remain one of the driving forces in my life as to why I do this job…”

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