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Monday Message 26.05.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 26 May 2014


Personal Email: [email protected]

I hope you have had a joyous weekend and have allowed me to do the worrying for us. I found myself waking at 4.30 a.m. on Friday so that I could get in a nice long day of anxiety.
Today, the chants of “here we go, here we go, here we go” are ringing in my ears as I leave the League One play-offs at Wembley; a valiant effort by the mighty O’s, sadly ending in defeat. There is of course always next year as they live to fight another day.
But it isn’t a surprise that my thoughts are elsewhere – and my determination to ensure that the future of the Criminal Bar is secured for both current practitioners and those that come after. There cannot be an outcome that sees the destruction of our profession: to quote from the judgment of the Court of Appeal in R v Crawley: “the criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime….it remains critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work, developing their skills from the straightforward work until they are able to undertake the most complex.”
This week I have spoken to two more female members of the Bar, well known, able individuals in prestige chambers, who simply will not be able to go on unless these problems are addressed. There must be a resolution that recognises the value of and secures the future of the Criminal Bar as a vital part of our criminal justice system.
The Court of Appeal included the following statement in their judgment:
“It is of fundamental importance that the MOJ led by the Lord Chancellor and the professions continue to try to resolve the impasse that presently stands in the way of the delivery of justice in the most complex of cases; this will require effort by both sides. The maintenance of a criminal justice system of which we can be proud depends on a sensible resolution of the issues that have arisen.”
These words echo what we at the Criminal Bar have been trying to do. Important we keep in mind that we went back to work in exchange for the punt into the long grass of the cuts to the AGFS and that part of the agreement is not in question. The reasons for the current impasse have been rehearsed many times. I have heard it said the MOJ believe the CBA has encouraged people not to take VHCCs at the cut rate. That is not correct. We have made it clear since the date of accepting the deal with Government that there is no boycott on members of the Bar undertaking these cases & that the decision as to whether or not to do so is a matter for each individual.
Having accepted the assurances of the Lord Chancellor in good faith, the Criminal Bar does not regard the threat to expand the PDS either as the way forward, a “sensible resolution of the issues” or the sort of “effort by both sides” the Court of Appeal envisages in the concerns expressed above; that way will inflict a mortal wound on the future of the Criminal Bar and we cannot stand idly by and see that happen. These sentiments were agreed by the CBA Executive this week who resolved that any further expansion of the PDS, by stealth or contract, should be met by determined action on our part.
Following that meeting, on advice from members of our executive with political experience and together with the Circuit Leaders, we have issued two documents to make it clear that we are willing to do our part to try and resolve the current impasse. The first was an invitation to meet with the Lord Chancellor which you have not seen. Here it is:
Dear Lord Chancellor,
Since the end of April we have not met.
Our negotiations then anticipated further engagement from both sides.
In the light of the President of the Queen’s Bench Division’s observations in the final paragraphs of R-v-Crawley, we extend an open invitation for us to meet at the earliest opportunity to break this impasse. We can then arrange for our teams to meet to discuss substantive matters.
Both your department and the criminal bar have repeatedly stated their belief in the importance of a strong, independent and high quality criminal bar at the heart of the criminal justice system. You have made your own position clear on this on many occasions. We are just as sure that you do not wish to see the hard-working taxpayer spend even more money on a Public Defender Service that we all recognise is a more expensive, less high quality mechanism to deliver advocacy. It would be surprising if your Government, of all governments, was the one that nationalised this part of the public sector.
We very much look forward to meeting you after the European elections and we are confident, as we all were a couple of months ago, that we can quickly design a new system for high cost cases that will satisfy all of the stakeholders in the criminal justice system and provide value for money and a quality service for the British taxpayer.
Yours sincerely,
Nigel Lithman QC
Chairman, The Criminal Bar Association
Tony Cross QC
Vice Chairman, The Criminal bar Association
Sarah Forshaw QC
Leader, South Eastern Circuit
Mark Wall QC
Leader, Midland Circuit
Andrew O’Byrne QC
Leader, Northern Circuit
Paul Lewis QC
Leader, Wales & Chester Circuit
John Elvidge QC
Leader, North Eastern Circuit
Andrew Langdon QC
Leader, Western Circuit
Many of you will have seen the Press Release that was issued but the link to it is HERE
Somewhat remarkably I find a number of people, usually in a rude and demanding manner and some of whom should know better, say well why haven’t we gone straight back to the barricades?
I don’t know about you, but if I can get the crown to drop its case before I go into court that is what I prefer to do. But more particularly, I do not believe that the Criminal Bar has been anything other than reasonable in everything it has done this year and in the way that it has done it and I would wish this to continue if possible.
It is in that spirit that we hope to be able to continue to work with Nick Lavender QC and the Circuit Leaders in a joint approach to breaking the current impasse. I am also part heard in yet another useful conversation with the Lord Chief Justice. I have had replies from Bill Waddington, Nicola Hill and Paul Harris. Of course there are bridges to build, but we hope to meet shortly.
Meanwhile there are those by nature to whom everything appears to be cream. It is their role in life, whatever the recipe says, to “whip it up”. That is not the role in life of responsible leadership and Tony and I will continue to work towards a resolution of the impasse while standing firmly against any threatened expansion of the PDS.
If not: “Here we go, here we go, here we go….” AGAIN!

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