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Monday Message 20.01.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 20 January 2014


Personal Email: [email protected]

How many places do we visit or pass by in our lives that immediately bring to mind episodes that have taken place there? Some invite a smile, others a grimace. My two meetings this week at Portcullis House certainly brought forth no smile. Interestingly, they also made me glad that of all the career paths that one might have taken I had not walked down the path of a politician.
Perhaps the most telling part of my week was an interview with Radio Russia. They declined my offer to conduct it in Russian (which I felt I might manage as my Grandfather had left me a beautiful samovar) but instead allowed me 10 minutes to enlighten Moscow as to what was happening to the English Criminal Justice system.  How sad and ironic is that, considering the respective histories of Britain and Russia?
This has been yet another seminal week:
Sir Bill Jeffrey was gracious enough to come to Chambers. I have assured the Lord Chancellor we will contribute to this review of Criminal Advocacy in the Courts and of course where we give an assurance we always follow through.
I brought with me Shauna Ritchie from Chambers to give the view of the middle – junior ranking barrister.
She explained how even in a set such as 2BR people would rather go on secondment then be left not earning a decent living. He learned how this can spoil the traditional balance of a set. He learned how whole circuits are having to reduce or eliminate pupilages and how you cannot hold this review without bringing in the question of fees.
Of course we focused on quality and he understands this is already suffering through the undermining of the profession. I have promised to meet with him again. The CBA leads the Criminal Bar and must take up the cudgels wherever.
I am fast learning that the Monday Message is read far and wide. It probably has a circulation the size of many a magazine. It is read by the Judiciary and those that stalk the corridors of power.  I have been told by the Lord Chief Justice and the DPP that they read it and also by those within the Ministry of Justice.
I expect Monday afternoon the MOJ take it down to Bletchley Park to see what assistance the Code Breakers can give them and from there straight to GCHQ.
You ask what was decided by the Action Group? That must remain undisclosed until the moment for its unveiling. But the MOJ must appreciate that the Bar is not a push over, it knows its own worth and strength. All options are open.
SHARLESH VARA M.P. Minister of Legal Aid addressed the meeting chaired by Karl Turner MP. The Grimond Room at Portcullis House was full. Not for the only time this week I was with Nick Lavendar QC, who I think has got off to a cracking start as Bar Chair, along with Alex Carlile QC and Mark Trafford. I’m sorry that I had to attend that meeting rather than a Court of Appeal Users Group where I would have preferred to be; I hope Lady Justice Hallett will forgive my late change of plan. But this nonsense has to be dealt with.
At the meeting, I started by saying that it remained of interest as to why figures published and statistics were used to show the Bar in the most unattractive and misleading way. But that was not my question.
I said I didn’t understand why figures included VAT. They were not our earnings. But again that was not my question.
My question was this: “Had the Minister sanctioned the Legal Aid Agency to approach Silks direct, ask them if they were able to take a VHCC case and ask them to keep the conversation confidential?” I pointed out that this was unwise, inappropriate, ignored client choice and was of dubious legality.
He answered that he had not mastered that part of his brief yet. A comment strangely enough he will hear more and more by the lawyers they are relying on to do the work that the independent Bar will not do.
Lord Carlile’s question was more direct: “If you say the Bar earns £84,000 including expenses, then presumably you have no difficulty hearing it said that you earn £174,000 on the same basis?”
Perhaps, at that moment, Mr. Vara understood how it feels to be attacked in the way we are every day and in every way.
The Lord Chancellor’s team now included his Legal Aid Minister, Hugh Barrett from the LAA and others. Ours included Nick Lavendar, Ra Healey and Ed Vickers.
I opened the batting urging transparency and complaining that the LAA should not approach counsel directly as it was inappropriate. The LC asked what I expected him to do, just let nobody do these cases? I told him he would always find someone to do a case, my wife could give it a go, or indeed our cleaner, but the point is to get the right people to do the cases – which they won’t do if he cuts the rates.
I’m afraid I got the feeling we were exasperating him.
 I also read to him an e mail that I’d received in the early hours of that morning, from a member of the Bar assessing that still working at 1.45 am, he was now  earning “a fiver an hour”.
One vital matter was exposed. The LC said his choices were limited:
HE NEEDED £35MILLION “CASHABLE SAVINGS”. He saw his choices as limited between our cuts or closing courts and making redundancies.
I do not accept that. He must link savings to the cuts, it is unreasonable not to.
Hence this is now the strategy:

  1. We continue to urge a moratorium on the cuts pending the outcome of the Jeffrey Review.


  1. Our position remains that the proposed cuts are not in the public interest, will lead to delays, increased costs and potential miscarriages of justice and we will continue to inform the public of the likely fallout.


  1. Alongside this, whether the Lord Chancellor wants to or not, we will look at a range of possible proposals as to how his office could find £35 million cashable savings outside of our cuts.


  1. In return he must stay the cuts.


  1. He knows that there is a rock solid resolve not to work at reduced rates, even if that takes us to hard places.

There was one matter raised that I was unhappy about. The Lord Chancellor in response to my complaint that the LAA is approaching the Bar direct, said that the CBA was phoning up and putting pressure on individuals not to take cases. I must say the complaint sounded like “your pressure is beating our pressure”.
But we must keep the moral high ground.
I do not accept that this allegation is true, but in any event I do not want anyone to put any pressure on anyone to do anything. Everyone must decide on what is the right thing to do.
Of course it is sad to learn that a few members of the Bar have joined something called the Public Criminal Service or something or other, happily the name escapes me. Sad that people who have earned well over the previous years are abandoning the Juniors and sad to learn they have merely been paying lip service to this struggle. They have clearly concluded that it’s all about them.
I was asked for a comment by Frances Gibb of The Times. She clearly understands what is happening in a way that government does not.
First, the few that might abandon their colleagues will not be able to do all the work.
Secondly, it shows the MOJ will do anything rather than talk meaningfully to us.
Thirdly, whilst these few are prepared to work for these cut rates, the MOJ shows itself really willing to destroy the Criminal Justice System. Client choice disappears at a stroke in this race to the bottom.
I was even more sad to realise that my new best friend Eammon Holmes  has not contacted me since he invited me last week to share his couch at Sky television and I have come to the conclusion that he is just a bit fickle. I have replaced him.
I was thinking my new best friend might be Nicholas Lavendar, but we are not there yet, so I am pleased to announce that instead this week it is Nicola Hill, President of the LCCSA .
She hosted at Kingsley Napley a meeting of CBA, LCCSA, CLSA and Circuit Leaders.
We resolved to work with complete unity and with the Bar Council  to create a new committee to speak with the Lord Chancellor with one voice. We will set out our aims together and explain how we will achieve them.
I am resolved that this will happen. It means that we have pooled resources for statistical evaluation and PR. We will make our demands together and say what we will do if we don’t get them together.
The MOJ will meet with the CBA, Bar Council and Circuit Leaders to explain their figures.
Hopefully this will open the door to proper discussion.
We will quickly learn whether this is leading somewhere.
If the door closes, we will know we have done all we can to be reasonable and can do no more.
My fortnightly fish ‘n chips in Muswell Hill. There too I was caught between a Rock and a hard Plaice, but went for the Dover Sole.
QASA: At the time of writing I do not know the outcome of the JR proceedings, this will be revealed tomorrow morning and I will update this message shortly after.
This continues to be a fast moving scenario for the Bar. But in 37 years in practice I have learned that what clients value more than anything is calm and determination and I refuse to sacrifice either.

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