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Monday Message 28.04.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 28 April 2014


Personal Email: [email protected]

Hello. I hope you had a good break and to those who observed religious festivals that you enjoyed peaceful and spiritual days. We reconvene to take up our tasks that were adjourned part heard.
With direct action suspended in terms of strikes and no returns, we should be entering a period of reflection and dialogue. Reflection as to what our profession needs and dialogue as to how to achieve it.
This began before the break with a further meeting with the representatives of the MOJ and with particular reference to timetabling. Tony and I will of course update the executive as talks progress. Should substantive issues arise we know to consult more widely!
The work of the three ongoing inquiries is at different stages.
Sir Bill Jeffrey is due to publish his report within the near future. I have no idea what it will contain, but I have written to him very recently to say that whilst I met with him some months ago, as did a number of others from the CBA executive, at the time we were entirely preoccupied with the threatened cuts and so I felt I had not done justice to our submissions. We cannot express strongly enough that at all costs the future of the independent Criminal Bar must be ensured, both in terms of sources of work and at rates representing proper remuneration. To remedy this I am speaking with him again at the beginning of this week. We will then need to wait and see what comes in his report and respond accordingly.
By contrast, the Leveson inquiry is just beginning. Both the bar and solicitors will have input into this review.
In the meantime the committee set up by the Bar Council, chaired by Judge Geoffrey Rivlin QC and including representatives from the CBA, has held its first meeting.
The essence of the suggested terms of reference for the Working Group is: “Having regard to the interests of justice and the current state of public finances, to consider and formulate proposals for the future of the criminal justice system and the role of barristers in that system”.
Judge Rivlin spoke at the Bar Council meeting on Saturday 26th April and is clearly passionate about the future of the Bar.
His recollections go back to the days of “dock briefs” when the unrepresented could look amongst the assembled barristers and select one he fancied the look of”.
He recalled how one Defendant brightened his day by announcing: “I’ll have young ‘un with glasses”. I’m sorry now that he mentioned it. The Attorney General was present and made a careful note of the scheme.
Perceptively, Judge Rivlin observed: “The Criminal Bar has been badly bruised. But nothing could be more demoralising than change for changes sake. Impact upon the quality of justice is the overriding concern.” At all times, primacy will be given to the notion of a strong, independent Bar.
He described three strands to his inquiry:

  1. The Bar – justification of what we do – recruitment – training – advocacy standards.

  2. To feed into Leveson and add materially to that inquiry on efficiencies.

  3. Surveying the views of the Criminal Bar and taking soundings from on circuit and from within the Judiciary; considering how we relate to parliament and the media.

Meanwhile the CBA drafted its submissions in response to the BSB’s proposed regulatory amendment – with huge thanks to Sally Anne Hales QC, Valerie Charbit, Mark Trafford and Jonathan Carroll. This response is principled and continues to preserve the high ground for the Criminal Bar. How can we have reached the stage where our regulators try and implement a device whereby they can sanction the government changing our remuneration mid contract?  Read the CBA response HERE
This submission will in turn feed into the response from the Bar Council and the many other persuasive responses submitted by individuals, chambers and Circuits.
Of course the BSB’s proposed amendment was prompted by the whole VHCC situation (“debacle”). I have been contacted directly by a number of criminal practitioners who make their living out of VHCC work all expressing their ongoing concerns.
To one of them I sent this reply:
“May I say firstly how much the stance taken by you and other members of the Criminal Bar over the issue of VHCCs has been and continues to be appreciated.  I too do a substantial amount of VHCC work and so refusing it obviously has its consequences.
It was never the intention of the CBA to “abandon” practitioners like yourself to the fate of working at a 30% cut.
VHCCs at this time remain outside of any agreement with the MOJ. We made it clear that we were not prepared nor indeed are we in a position to tell people to do them at the proposed cut rates. In the same vein, we cannot tell people not to do them and have gone so far as to say there is no policy reason why they should not do them. We advised the government that we did not believe the Bar would agree to do the work at such paltry rates – had the government been prepared to move on its statutory instrument, I said I would have encouraged the Bar to do them but they were not willing to move.
I have very recently repeated to government that it remains my belief that the Bar will not do them at these rates and so we must await their response.
So for now it remains a matter of individual choice. For instance, leaving aside my CBA Chairman’s hat, I will not accept a VHCC case at cut rates. The government will have to see whether the independent bar will be prepared to work at 30% cuts (particularly in the light of some high profile trials) and what they will do if the Bar will not. The MOJ also said it would not be expanding the PDS beyond its most recent round of recruitment.
I am sorry the CBA cannot give individuals in your position a further steer on this topic. We fully appreciate the dilemma you are facing and hope you will understand that the CBA is also in a difficult position as we must ensure that we do not offend our accord.
You are also aware that on behalf of the Criminal Bar I suggested that the Bar found VHCCs an unseemly way to work and the MOJ said they will begin to work with us to replace the system. That will not happen overnight but we will be hoping to address this in the near future as one of the main planks of our discussions with them.
I am of course more than happy to talk through this with you or anyone that would so wish.
You are not alone in these concerns ….”
A number of members of the CBA have informed me that having consulted with each other their sets will no longer accept VHCC work.
Of course I will continue to work to resolve the issue of VHCCs in a manner that does not involve the Criminal Bar taking cuts.

The Bar Council was told on Saturday of the abuse of process argument being taken this coming week on behalf of those Defendants that cannot find proper representation. The government has appointed an amicus curiae to assist the Court and he/she will be paid at Junior Treasury Counsel rates i.e. £120 per hour – almost double the cut rates for a QC. By comparison, the new rate for a led Junior in a category 3 VHCC case is £47.20 per hour.
As the Americans say “you do the math!”
Beneath all of this exists the struggle to ensure that publicly funded work does not become the poor relation. Recent warning bells:

  1. Sarah Forshaw has drawn attention to the fact that it is business law that is intended to become the flagship to the celebration of the anniversary of Magna Carta. In other words, the sidelining of the publicly funded justice system – the very heart of the wording of the Magna Carta.

  2. As Nick Lavender pointed out again at the Bar Council meeting on Saturday, the Defendant Mr. Evans recently claimed he did not choose legal aid as he did not feel it could provide him with adequate representation. This is the “writing on the wall” unless the government starts to “join the dots” and sees the full implications of its determination to save money at all costs.

  3. The MOJ has recently rejected the joint overtures from the CLSA & the LCCSA to meet with them. We support their request & the reasons set out by Bill Waddington, CLSA in his letter of 25th April highlighting the true impact of the recent fall in crime statistics on the legal aid budget, available HERE. We fully support their call for a meeting with the MOJ; it must be right in reviewing the future of the criminal justice system that the solicitors input is equally as important as that of the Bar.

The renewed application for leave is to be heard on the 9th May, not until after that will the picture become clearer. But just as with the cuts I do not propose to ignore what we set out to achieve in the area of regulation.
Over the last 8 months I have read e mails, letters, articles, blogs and twitter feed. It comes and continues to come in all shapes and sizes. Nothing is more depressing than the occasional abusive tweet or bitter article about my failure to cure the ills of the world. I can assure you none of my shortcomings hurt so much as not being able to gain automatic promotion for the mighty Leyton Orient. But none have impressed as much as those that take trouble to provide insightful analytical contributions to what we are trying to achieve.
In this era of Jaw Jaw not War War, I really hope to read analyses of the state of our profession that will assist JEFFREY, LEVESON and RIVLIN and will let you know on what topics and to what address these maybe sent.
The struggle that continues is to ensure that the publicly funded Criminal Bar remains a vital part of a properly funded justice system; a profession of excellence, attracting a socially diverse cross section of individuals into a structured career with appropriate reward. We will make pay rises a part of our future landscape. As a profession you have performed fantastically in this struggle, do not underestimate what you have achieved so far and what we are determined to secure in the future.
I think twitter permits 140 characters. The Bar has hundreds of them. Sadly we lost one very recently. George Papageorgis was larger than life and drew you in to engage through his charm and warmth. We send his family our condolences.

After the stresses of the last months, we deserve an evening for mingling with friends and colleagues.
I believe we have turned the first corner and can start to rebuild our profession with strength. We have seen the benefits of working as a team. So let’s take a night off and make our annual social event bigger and better than ever.
Please book your tickets for the 16th May now by contacting Aaron or via the website HERE.

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