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Monday Message 28.10.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 28th October 2013


Personal Email: [email protected]


On this stormy day I remember Captain Scott in Antarctica, looking out of the tent in despair at the blizzard, trying to march just the last 11 miles to safety.
There at “One Ton camp” sits the Lord Chancellor in the warmth of the MOJ (radiators turned up despite huge increases in energy prices) whilst he and his fellow MPs await their pay rises. Meanwhile our members huddle around a one bar electric heater, awaiting not just pay freezes but these savage cuts. How many able advocates will be forced out into the cold? When will the Government wake up to their reality of a barren, frozen landscape stripped of the best, experienced and brightest representation our independent profession has to offer? Or the impact a poorly funded justice system will have upon “law and order” in this country and the public’s right to a fair trial?
Early in the week I finished a case in Southwark before starting one in Bradford.  Fraud in one place, firearms in the other: poles apart. Yet I was greeted by the same folk with the same problems in both places. Cheery and gloomy in equal measure.
My case in Southwark was prosecuted by one of the most able members of the Bar. There is to be a retrial. It is a complex VHCC case about to become more complicated, where an inexperienced criminal advocate would not have a clue as to how it should best be presented – or dare I say defended. My client was beside himself with upset as the case collapsed to be retried. It now depends on the MOJ whether “a proper fee” is authorised for the retrial.
The first barrister I met in Bradford asked what we could do about a case where there was an election to the Crown court and after three hearings the Crown chose to discontinue. The total barrister’s fee for this case was £200 odd and that’s before any further cuts. This is the reality of the fees currently being paid. Not the exaggerated figures spun by the MOJ. How can we permit a further 17.5% cut? The answer is obvious. We can’t and we won’t.
I will be taking advantage of being in the North this coming week to meet with circuiteers, senior clerks and solicitors in Leeds and will be asking Aaron Dolan in conjunction with Nigel Hamilton, my current junior, to arrange the same.
If he were to do likewise, visit each circuit and see the value of the work we do, the Lord Chancellor would be left in no doubt that he is reaping agony all over the land.  The series of annual cuts is driving quality downwards. The justice system needs long term proper investment, not a “cut price” supermarket budget. Here is just one example of the fall-out from my e-mail inbox this week:
“Woeful of Wiltshire/Glos” wrote to me as follows:
“You can add me to your obituary column if you like. After careful calculation it appears that even picking up good Swindon/Bristol trials would not even vaguely cover child care and travel costs. So sad”
The Judiciary like the rest of us wonder where quality is heading and the effect this will have on the justice system. They too are aware standards are spiraling downward. It would be helpful to hear their views more widely disseminated. What would they have us do?
As criminal barristers we are happy to be measured against standards of decency and caring behavior. The Recorder of London and Common Serjeant were kind enough to invite me to join a breakfast this week at the Old Bailey for the Sheriffs’ and Recorder’s fund. This aims to:
“Help give hope and assistance to the many ex-offenders who are desperate to go straight but who often genuinely lack the means to do so”. It is a compelling charity and can be contacted through
How can one be anything but proud to be a member of this profession? Massive thanks to Ed Vickers, Gilly Jones, James Wood’s team from Doughty Street, Valerie Charbit, Emma Nash, Chris Henley, Mark Trafford and Lesley Bates. See the CBA response linked in the same message sent to the membership as follows:
Please may I urge you now – each individual criminal practitioner and each set of chambers – to get on with drafting your own response. By all means refer to the CBA response if you wish and use it for inspiration but it will be much better if you can submit your own thoughts so that the MOJ sees the level of opposition to these proposals and the effect that they will have on individuals.
The responses need to be sent to [email protected]   by 5pm on Friday 1st November.
The CBA Response is HERE.
Best wishes,
The Law Society made up some ground by joining one of our campaigns.
They were granted leave to be joined as an interested party on behalf of the complainants. They find no problem with being on different sides to their regulators. It shows that where there is a political will there is a way. Of course it also happens to be the right thing to do.
Our policy is to stand firm on refusing any work at cut rates. I have continued to make this clear this week, whether it be current/ongoing VHCC contracts or new work.
The priority is to provide timely advice. This will be done. I will ensure that we will provide it well in time to take necessary steps to react to these cuts. Meanwhile there is no reason not to continue work at the current lamentable rates.
Upon the coming into being of the proposed Statutory Instrument, I have no doubt we can exercise our contractual right and terminate ongoing cases and refuse to enter new contracts at cut rates.
STEPS 1, 2 and 3 have been announced. Be in no doubt if this madness persists, STEPS 4, 5 & 6 will follow. And yes I do know what they are.
BAR CONFERENCE: Saturday 2nd November
I spoke to the Attorney General, The Rt. Hon. Dominic Grieve QC MP on Wednesday, please come and address him yourselves at the Bar Conference.
The CBA workshop will examine the tension between “our present” and “our future”. Let’s have a good turn-out. Alongside the AG, the guest speakers will be Mukul Chawla QC and Paul Mendelle QC. I will moderate, but after their opening statements, the floor will be yours to ask questions of any of us and we hope you will do so.

You must all come. Vice Chairman Tony Cross QC is managing the event.
This is a vital step along the way to ensure that the Lord Chancellor realizes that we will not work at these rates.  The idea is to ensure we have at least 2 members of each chambers PLUS as many of you as will attend at LINCOLNS INN on 16TH NOVEMBER 11.30 a.m.
Please register your attendance HERE
·      Law Society backs challenge to QASA, stating that their intervention is in the best interests of all advocates HERE
·      There has been further coverage of Maura McGowan’s letter to the Select Committee, which disputed the accuracy of statements made by Grayling when giving evidence. The incident is described as a ‘spat between the Bar Council and Ministry of Justice’. Note that the MoJ has stood by the statement made by Grayling HERE
·      The Guardian comparing the fees paid by the Government for counsel who act for them (focusing on James Eadie QC and Jonathan Swift QC) to the fees paid to legal aid lawyers. Although the CBA will not wish to criticise these counsel for earning substantial fees, you may want to pick up on the MOJ’s argument justifying the pay differential: “cases involving the most complex legal challenges” means using “the most experienced barristers”. Obviously there is scope for arguing complex legal challenges also arise in legal aid cases HERE
·      Also, may irritate some among us to see MPs plan to press ahead with their 11% pay rise whilst expecting us to lay down and accept a 17.5-30% cut HERE and HERE
·      Proof that privatisation of criminal justice system does not necessarily save money: costs per prisoner in public sector is £34,200 as compared to £42,000 in private HERE
·      84% of probation officers willing to strike over privatization HERE
·      Bolton’s Police and Crime Commissioner calls for government rethink on legal aid reforms HERE
@TheCriminalBar: .@MoJGovUK pretend they want to engage, so why do they keep on misleading the public about us?
@TheCriminalBar: .@cpsuk admits that @MoJGovUK cuts cause “significant delays to trials in Gloucs” #StopDelayingJustice
@TheCriminalBar: ,@MoJGovUK As you well know, we work late nights EVERY night for free, AND we get a pay CUT #Fight4LegalAid
Batten down the hatches. There are more storms ahead.
Scott’s last entry was “Every day we have been ready to start for our depot 11 miles away but outside the door of our tent it remains a scene of whirling drift.”
We may be poles apart, Lord Chancellor, but we will not give up and shall not perish.


Nigel Lithman QC


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