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Monday Message 25.11.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 25 November 2013


Personal Email: [email protected]

“The Price of Justice”
“Ask not what your profession can do for you, ask what you can do for your profession?”
Of course the words resonate on the anniversary of JFK’s death. He was not prepared to shy away from tough issues. Even 50 years after his assassination, we are all familiar with his acts and declarations on civil rights and his stand over Cuba and that is why we know him intimately by his initials.  He did not back down. He knew that doing nothing is very rarely the right option.
So it is with the CBA: we have watched, listened, heard and assessed what it is that you wish to do in relation to QASA and the cuts. Both issues have been regarded as an unacceptable “pincer” attack on the Criminal Bar and the future of the Criminal Justice system. They cannot be separated.  We’ve heard your individual and collective views expressed to the CBA through the correspondence sent over the last 2 years, the overwhelming response by your heads of chambers, and attendance at meetings including those at which the Circuit leaders have provided their agreement and support. We have also listened to the words of the Bar Council. We know that these words are not empty. All of this means that we will support lawful, proportionate and reasonable action that you wish to take. We will coordinate your actions to try and ensure they do not damage the criminal justice system that the government seems hell bent on destroying.
This week I have seen the Lord Chief Justice and explained the measured approach we understand the members of the Criminal Bar wish to take.  Following our executive meeting last week, I will be discussing these matters with the Circuit Leaders and Bar Council. Already we see the vultures circling, ready to pick on the bones of the criminal bar HERE.   Doing nothing is not an option.
For those who did not see it, earlier this week we published the contractual advice received from Ian Mills QC and attach it here in summary. It is self explanatory and answers in the affirmative the question: “Can a VHCC contract be terminated without claw back?”
1.          The Legal Aid Agency (“LAA”) proposes amendments to the contractual arrangements pursuant to which advocates provide legal services in “very high cost cases” (the “VHCC Contracts”). Their intended effect is to replace existing contractual provisions for payment rates with terms that incorporate rates set out in intended secondary legislation. If enacted, the statutory rates would be 30% lower than those presently provided for under the VHCC Contracts. There are three such contracts: the 2008 VHCC Contract; the 2010 VHCC Contract; and the 2013 VHCC Contract.
2.          Ian Mill QC, a commercial practitioner at Blackstone Chambers, was asked to advise the Criminal Bar Association on the contractual effects of the proposed amendments. He was not asked to address their legality as a matter of public law. The specific contractual matters upon which he was  asked to advise were as follows:
(1)        whether the LAA was contractually entitled to introduce the proposed amendments;
(2)        whether, in response to their introduction, an advocate would be entitled to terminate his or her VHCC Contract; and
(3)        if so, with what consequences, in particular as regards: (i) recoupment of sums paid by LAA in respect of services already provided by the advocate, on the ground that termination amounted to an “unreasonable return” of the advocate’s instructions; and (ii) “remainder work” under the VHCC Contracts.
3.          In summary he advised as follows:
(1)        There is a good arguable case that the LAA has no contractual entitlement under the 2008 or 2010 VHCC Contracts to introduce the proposed amendments, because the relevant contractual power does not extend to amendments made to comply with legislation such as the intended legislation, which was laid before Parliament by the Ministry of Justice (of which the LAA is part).
(2)        In addition, in relation to all three Contracts, were the proposed amendments to be construed so as to incorporate payment rates under the relevant legislation as for the time being in force, such that they would be subject to future amendments to that legislation, it is also arguable that the LAA would have no contractual entitlement to introduce them, this being unnecessary to give effect to the relevant legislation, and so outside the relevant contractual powers. 
(3)        However, he does not consider that to be the appropriate construction; rather, he considers that the proposed amendments would incorporate only the payment rates set out in relevant legislation as enacted. That being the case, future changes to subordinate legislation to introduce changed payment rates would require amendments to be made to the Contracts – thereby preserving the Bar Council’s status as a consultee and the advocate’s contractual right to terminate in the face of such amendments.
(4)        In the event that the LAA were to proceed as it proposes, an advocate would be entitled at common law to terminate his/her 2008/2010 Contract(s) if the argument set out at (1) above is correct, on the basis that the introduction of the reduced rates of payment would amount to a repudiatory breach of that Contract (“common law termination”).
(5)        In addition, under the express provisions of each Contract, the advocate would be contractually entitled to terminate prior to the date on which the relevant amendment comes into force, subject to the giving of notice (“contractual termination”). He does not consider that entitlement to be subject to any other contractual restriction.
(6)        If the advocate did terminate on either ground, a consequence would be that he or she would be entitled to payment in respect of work done under the relevant VHCC Contract, up to the date of termination, in accordance with the un-amended terms of the contract.
(7)        Contractual termination would not amount to a “return” of instructions within the meaning of relevant provisions of the VHCC Contracts, let alone an “unreasonable return”, and so would not trigger LAA’s contractual right of recoupment in such cases.
(8)        Those provisions would also have no application in circumstances where a common law termination has occurred. The advocate would be relieved from performance of all executory obligations under the Contract.
(9)        An advocate intending to serve notice of termination (in particular, in respect of his/her 2008/2010 Contract(s)) would be well advised to do so both at common law and as a matter of contractual entitlement.   
(10)     Common law termination would not give rise to any obligation on the part of the advocate to undertake any post-termination VHCC Work, irrespective of the provisions of the VHCC Contract itself, save to the extent that his/her professional obligations require otherwise.
(11)      The current situation regarding those professional obligations is unclear and unsatisfactory. Advocates need assistance from the BSB but do not appear to be getting the assistance that they require at present.
(12)     Contractual termination leaves open the possibility, both as a matter of contract and as a matter of professional obligation, that an advocate may be required to undertake post-termination VHCC Work. That said, there are sound arguments under each VHCC Contract for an advocate being entitled to refuse as a matter of contract to undertake such work. 
The Advice of Ian Mill QC is available from the CBA upon request.
The cut-off date for notifying termination is drawing even closer.
This week we will know the results of the QASA action. Because the rate cuts have been at the fore of our collective mind, I have been asked whether it means somehow that the CBA might have changed its’ view on QASA? The CBA has not and the position remains the same. You have indicated that you will not sign up to the scheme. You have heard support for that view from the CBA and the Circuit Leaders. You know of the agreement that one circuit will not encroach on another’s territory to take the work not done as a result of non- registration.
Please let us pause to thank our members who are litigants David Howker QC, Kate Lumsdon, Rufus Taylor and Christopher Hewertson our silks Dinah Rose QC and Tom De La Mare QC, their junior, our friend Mark Trafford, our solicitors Baker McKenzie and the many others associated with the action who have given unstintingly of their time and legal prowess. To them, doing nothing was also not an option.
One wonders how many people can be fooled & for how much of the time? This week has seen the admission that the police have been “massaging” the way in which they record crime statistics so that the number and nature of serious criminal offences are “lost in translation”. Repeating the same misleading, incorrect statistics does not make them true. Let us expose the ones being used as the justification for wreaking untold damage on the criminal justice system:
1.     We do not have “one of the most expensive legal systems” in the world or in Europe for that matter. Thank you to Professor Gary Slapper for once again exposing the lie HERE.
2.     The legal aid spend is not “£2 billion” a year. The depth of the cuts imposed since 2010 to date have already dramatically reduced the figure to well under £1 billion; and this figure is continuing to fall as the impact of these cuts are still working their way through the system. The MOJ’s oft quoted statistics are badly out of date and they must know it. Thank you to Chris Henley for his lucid presentation on the correct figuresHERE. These are before any further proposed cuts are applied.
3.     The “block” contracts awarded by the MOJ to such large entities as Serco and Capita have led to huge inefficiencies, delays and waste in the system. Money poured down the drain instead of being properly invested in the criminal justice system. Over 10,000 complaints have already been lodged over the non-attendance of or inadequacy of interpreters, leading to unnecessary and costly adjournments; equally, the repeated failure to produce defendants on time or at all for their court hearings have led to further and unnecessary wasted court time. Thank you for recording these daily occurrences on #mojwaste and #courtdelays – please keep your contributions coming, we are collating them all.
4.     The true figure the MOJ says it needs to cut from its budget of payments to the Criminal Bar is £24million. This is the figure given to me by the Lord Chancellor in our first meeting. Isn’t it ironic that this is the exact same figure reportedly offered this week by GS4 for their disgraceful breaches of contract in relation to tagging offenders and rejected as insufficient by the MOJ? Wouldn’t the Criminal Bar be a much better long term investment?
5.     His Honour Judge Woolman took the opportunity this week to publicly support the Criminal Bar. He put his head “above the parapet” and expressed his views in a measured and unanswerable manner (copied below). We applaud him for showing that he is not fooled by the “emperor’s new clothes” and for his far-sighted vision of the realities of operating the criminal justice system without the input of the criminal bar. We would welcome other members of the judiciary adding their voices to these concerns and showing us support in a meaningful way.
His Honour Judge Woolman 21/11/13
Subject – The Bar
T20127693/T20127756 Clarke and others
This case shows how important it is for judges to be helped by an experienced Bar, not just by those who prosecute but also by those who defend.  It is only possible to do justice in a serious criminal matter if both sides are represented by skilled and experienced Counsel.  I have no doubt that this experience has enabled weeks if not months of court time to be saved, and that such trials as there have been have been considerably shortened.  Even in the sentencing process, the skill and economy displayed on both sides have enabled me to deal with a complex sentencing exercise in a reasonably short time.
Sadly, it is clear that the Criminal Bar is slowly being destroyed.  People of ability are leaving or transferring to other fields of work, and new recruits are choosing either not to come to the Bar at all, or not to the criminal bar at any rate.  Valuable skills are being lost, and will continue to be lost, and once lost cannot be easily regained.  It is like the loss of a manufacturing base.  Once gone, it is difficult to replace.  Those few who reamin will need to be backed by personal or family money.  No longer will it be possible for those youngsters who come from ordinary backgrounds let alone poor backgrounds to contemplate a career at the criminal bar.
The continuing erosion of the Criminal Bar is a matter which acutley concerns all criminal judges.  The judges need a Bar which is well trained, properly motivated and adequately rewarded.  Otherwise the judges’ task in dispensing justice will become difficult if not imposible, miscarriages of justice will occur and the results will be felt not just by defendents but by victims, the police and by society at large.  In addition cases will take longer, and more judge days will be needed not fewer, with all the extra costs involved. 
I spent much of my time as a Junior in Essex and still both practice and sit there, albeit not on the same cases. I think I can read the mood of my friends there. They will not allow what is going on to simply take its course. Nor will I.
Law Society issues warning: “The position of solicitors considering strike action is very different to that of the Bar”
HHJ Woolman in defence of the Bar
“We need to talk about barristers, before the Criminal Bar is destroyed”
Ex-MP and practising barristers says he is sure the legal aid cuts will go ahead as planned, and launches a ‘virtual chambers’ in anticipation
Serco loses out on Doncaster prisons contacts. Prions to stay in the public sector
Prison privatisation 
G4S offered to credit the government the £24.1m for the years of overcharging on tagging contracts. The government refuses to accept the credit note
Serco CEO steps down over overcharging scandal
The man in the charge of the review of the tagging scandal indicates it will not stop either Serco or G4S from being awarded future public contracts
Serco & G4S appear in front of Public Accounts Committee
@TheCriminalBar: .@MoJGovUK Our members send daily reports to dedicated email account of #MoJWaste Do you want us to share with you? Why won’t u listen to US
@TheCriminalBar: .@MoJGovUK Our offer on 4th November to help you identify and tackle waste was genuine. It is still open. Why not contact US. You said u wld
@TheCriminalBar: .@mojgovuk falsely claim Civil cuts causing no problems. See damning indictment at para 54 from Macur LJ
@TheCriminalBar: .@MoJGovUK claim to be “listening” absurd. They have ignored offer of help from @TheCriminalBar We have been excluded from discussions again
@TheCriminalBar: The CBA made a direct offer to Grayling personally on 4th November, to work with him to identify and save #MoJWaste. They have snubbed us!
The Monday Message is a vital document, but it is not Magna Carta.
Some editions will contain less than others as working on the issues is more vital than writing on them.
Equally, I do not wish to imply that Monday is not a great day. But if I have important messages to put out mid week, that is when they will go out.
Meanwhile our membership give us fantastic support and me the personal backing that makes an exceptionally difficult job possible.
I ‘d like to say thank you.


Nigel Lithman QC

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