The Times Article – NLQC – 17.10.13

The Times Article – Nigel Lithman QC Interview 17.10.13

 

Will rank and file advocates be prepared to take on rape, murder and fraud cases under the new reduced-fees regime?

 

Nigel Lithman, QC, is a bit of a comic. He even does it professionally – appearing as an after-dinner speaker where he deploys well-practised timing rather than stock jokes. At present, though, Lithman finds little to laugh about.

“The Criminal Bar is in crisis,” he says, “the worst in its 400 years.” And it is across the system: he talks about an e-mail from a criminal law solicitor: “His wife has Crohn’s disease and he is in jeopardy of not being able to support his family. It made heart-rending reading.”

 

As chairman of the Criminal Bar Association, it falls to Lithman to take up the case for 4,000 criminal barristers as they face cuts of 17.5 to 30 per cent in legal aid fees. He is seeking a meeting with Chris Grayling, Justice Secretary, to “update him, make him understand we are firm in our resolve”.

Grayling has said that he does not want to inflict pain on the Bar, Lithman says. “I believe him. But he doesn’t seem to recognise that £28,000 gross a year – that is a derisory sum when judged by the work they are doing.”

Things have gone beyond polite talks. By “resolve”, Lithman means the action that criminal barristers are preparing to take to drive their message home. This cannot by law be strike action; but it can mean that they will not sign up to the new contracts with reduced fees – leaving criminal trials unable to proceed.

A survey has shown 95 per cent ready to decline the new contracts involving 30 per cent cuts in fees for the most serious and complex trials – murders, rapes, frauds.

 

“These cases will grind to a halt because – subject to clarification on the legal position – barristers won’t sign up between the lapsing of the old contracts at the beginning of November and the start of the new ones at the beginning of December. You have a case due to go into court in six weeks’ time, having spent a year preparing for it… the idea that a month before trial they can cut the fees by 30 per cent is completely unacceptable.”

 

Lithman, 61, is an experienced criminal QC, with a list of big cases to his name. He has built up a specialist practice acting for defendants. “I have secured hundreds of acquittals,” he says. He acts regularly for police officers and represented the deputy chief constable of Essex in a private prosecution brought by an animal rights group.

Apart from regulatory work such as health and safety, where he prosecutes, it is only defence work. “I am better at knocking things down rather than building them up.”

 

His success is such that he has featured on the notorious “fat cats” list, produced by the Ministry of Justice, of top legal-aid earners.

“Within a profession of this size, you will find a handful of people who have done exceptionally well. But this is not about us: it’s about the rank and file who make the system work. It’s about ensuring the average member of the Bar or criminal lawyer earns a proper living wage.”

“What a few of us earned in the past is of no relevance today: it’s as relevant as talking abut Grayling’s earnings, and expenses. Personalising things does not achieve anything.”

 

Not that Grayling himself has used the “fat cat” slur – and Lithman acknowledges this. “He tells me he has never used the expression and I accept that because he says he stands by Government figures, and they are the only relevant ones; that 60 per cent of the Bar earns £50,000 including VAT [before overheads], which brings annual earnings to somewhere in the mid-£30,000s. That’s the sum the public has to decide whether it is worth running the criminal justice system for – because with those fees, and cuts, they will not find members of the Bar prepared to do criminal legal aid work.”

 

Lithman’s own established position also enables him to take up the cause. Barristers of 15 years’ call have not seen a pay increase – rather a 40 per cent cut in fees since 1997. “While many, including myself, have done well, having got to this position I am now able to fight for the membership.”

The battle is not just over the so-called high-cost serious trials. Barristers are also concerned about the cuts in daily fees for other cases. Grayling has insisted that juniors are assured a fee of £225 a day.

 

Lithman is sceptical. “We are now going in for as little, sometimes, as £45 a day; sometimes for applications that pay nothing. Or visiting a client in Belmarsh for nothing. Perhaps, cumulatively, one might earn over three or four days £225, but that must be split between the lawyers involved.”

 

There is a second front, too: the battle over performance grading. Barristers do not oppose a grading scheme (Quality Assurance Scheme for Advocacy, or QASA) but are concerned about the conflict of interest involved, with judges marking counsel who appear before them.

 

They also vigorously oppose the idea of a new category of “plea-only advocates” who will be permitted to enter guilty pleas, while having no experience of handling contested trials. The CBA has won leave to bring a judicial review to have the scheme declared unlawful.

 

Lithman went into the Bar for “the opportunity to do some good, make a difference to people’s lives”, he says. He grew up in Walthamstow, his father a doctor – but the young Lithman was no good at science and was squeamish. He had a place to read oriental studies at Cardiff (“I could have been Welsh by now.”) but took a London University law degree at Chelmsford College, then joined One Harcourt Buildings. He is now at 2 Bedford Row.

 

He lives in North London with his wife, Debbie (who also trained and practised for some years at the Bar), has three stepsons and is chairman of Highgate synagogue. “It’s a wonderful community – the kind of supportive small community the Bar used to be. That community aspect is increasingly important to me and why I want to do this job.”

He worries, too, about the likely legacy of the cuts. “If youngsters coming into the profession with substantial debt take the view that they can’t afford to do criminal work, you will lose the best brains from there and the Bar will become a privileged profession of amateur status as it used to be – and there will be nobody of quality available to become criminal judges.”

 

“The Criminal Bar has a great future. But its tipping point is now,” Lithman says. “Every barrister fights injustice; it’s what they come into the profession for. And that’s what I am doing.”

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