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Monday Message 26.01.15

CBA Chairman’s Message:
Tony Cross QC 

Monday 26 January 2015


E: [email protected]
T: 07860 692693 

On the 22nd of April 2013 I helped organise the very first day of action of Barristers that this country had ever seen. There had been talk of it before but it had never been done. 400 Barristers from the Northern Circuit stayed away from Court.  In November 2013 Nigel Lithman and I brought together Barrister delegates from every Chambers from every circuit to a meeting in London.  In the months that followed the Bar took unprecedented action.  By the end of March 2014 Government indicated a desire to bring the dispute to an end.  The resolution of the dispute was endorsed by the vast majority of the CBA.  There have been no cuts in fees.  Since then we have engaged with Government.  We have done what we do best, we have pressed our case to “Level the Playing Field” and to remove corrupt practices.  There are signs that they are listening to us HERE.  We have tried to persuade the Government to change their mind as to dual contracts because we believe they are unworkable and would seriously damage the CJS.  We shall continue in our efforts to persuade them of this.
Our tactics over the past 18 months have been straightforward.  We have demonstrated that we can organise the Bar; that we are not afraid of Government but importantly we have recognised that it is necessary to engage.  We are not afraid to engage with government.  Engagement does not mean appeasement.  Through engagement we can argue our cause and that is what we shall continue to do.  Nigel and I recognised that we are a body of wide political views-radicals and conservatives, however no one should now doubt that if at some stage in the future the Bar needs to return to direct action that it will.
The Global Law Summit:
I am sorry that my appearance at the GLS has angered a number.  I am to play but a small part in a panel discussion entitled “Whose responsibility is it to maintain the rule of law.”  It is (with one notable exception-me) a rather distinguished panel.  I intend to use the opportunity to set out very clearly the CBA’s view on this topic.  I intend quite obviously to speak my mind.  I will though do it courteously and critically.  My appearance has been the subject of much discussion on Twitter.  Some have accused me of treachery.  The terms of my engagement were discussed at the most recent CBA Executive.  There was criticism from some of my appearance however the consensus was that this was a perfect forum to put forward our case.  I dare say that Lord David Pannick and Ed Fitzgerald QC are not going along just to flatter the organisers and sponsors of this conference.
Not the GLS:
There are of course contrary arguments.  Some believe that no one should in any way play any part in the GLS.  There are many different forums to show opposition.  They are listed HERE.  I would encourage all who feel the need to protest to take the opportunity to do so in the way that they feel is appropriate.
The Solicitors Judicial review:
Bill Waddington reports to me that both the CLSA and the LCCSA were cautiously optimistic as to their chances of success in the JR.  Government refused to accept the argument that their reforms would lead to market collapse.  It is not expected that judgment will be delivered before the end of January.
LJ Leveson has now reported and we look forward to full discussion of it by our membership and executive.  One thing is plain, as the Learned Judge concluded (and we agree) that if the system is to work “remuneration for those engaged in the system must be commensurate with the skill and expertise which has to be deployed, otherwise the highest calibre individuals will not be prepared to work in the field and standards will inevitably drop.”  This message is not the appropriate forum to discuss the report but proper case ownership and the duty of engagement as spoken of by the Judge is undoubtedly the right answer for both the prosecution and the defence.  We of course welcome the proposed change to the definition of Instructed Advocate.  We also firmly believe that warned lists should be phased out.  They are bad for witnesses and run contrary to the principles of case ownership and the duty of engagement.  Fixed dates encourage good practice by both prosecution and defence.  Warned lists do not.  One thing is certain sure that these proposed changes will require funding.  When and if that happens then perhaps Parliament will leave the criminal law alone as Leveson LJ noted, more than 4000 new criminal offences between 1989 and 2009, and who knows how many more since, must be enough….

The CPS:
Last week saw the publication of the CPS Draft Guidance on Speaking to Witnesses at Court.  Unsurprisingly this seemed to cause much interest in the press.  My Sunday was spent at the BBC in Salford and then an early morning visit to BBC Newcastle to do a spot on the Today programme.  Much of the consultation is laudable but the proposal to discuss the “general nature of the defence case where it is known (mistaken identification, consent, self-defence, lack of intent for example)” is in my view dangerous and impractical.  We shall respond in detail.
On Saturday there was a great deal of talk on social media about one CBA member being blocked by the CBA twitter account.  News of what was briefly called ‘block-gate’ spread quickly across Twitter, perhaps because there wasn’t much else happening and it was cold outside.  Sadly I was taking an hour off and not paying attention. (Ordinarily I would have been watching the Clarets but Spurs had seen us off in the 3rd round.)  It did happen.  It shouldn’t have happened, and we have apologised to the member concerned, and now do so to all our members, for this brief lapse in the standards you are entitled to expect.
The rather sad truth of all this was that on Friday evening, when he should have been having a beer and recharging his batteries, one of our tweeters (who are dedicated CBA members giving their time free of charge day after day) allowed his understandable frustration to briefly get the better of him.
The CBA tweeter in question didn’t need telling that he shouldn’t have blocked the member, and unblocked him before being asked.  I have now allowed him to come off the naughty step, and he promises not to do it again.

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