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Why the Criminal Bar must strike

Not everyone believes that direct action is the way forward in fighting the cuts the MoJ seem intent on imposing. Nigel Pascoe QC has consistently argued that direct action cannot be resorted to. You can read his observations at his blog http://nigelpascoeblog.wordpress.com/2014/02/12 . Ian West, barrister at Fountain Chambers, Middlesbrough who recently spoke at the One Bar One Voice event in London argues that direct action is what must happen. What follows was originally posted as a response to Nigel’s blog.

Nigel,

I am one of those ‘Young Turks’ (more a middle-aged Turk, actually) who espouses direct action. Why? Have I no consideration for my clients? Of course I do. On 6th January, I was defending a man charged with witness intimidation. I told the lay and professional client, and the court, that I wouldn’t be there until 2.00pm. In the event, the court, on the Friday, simply accepted the fait accompli, and listed the case at 2.00pm. Had it not done so, I was confident that the judge, when the case was called on at 10.30am, would have adjourned until 2.00pm to start when I got there. I was as confident as I could be that no sane judge (and at Teesside CC the judges are all sane) would have attempted to start the trial without me. (Had that happened, my plan was to join the trial at 2.00pm, do my best, and appeal if the client was convicted.)

You are probably appalled that I even ‘took the risk’. I am not proud of having done so, even though I knew the risk was zero. I did so, because, having been involved in criminal Barpolitics – as an elected member of Bar Council, and a member of RemCom, and the BC’s Carter Response Team, latterly as a member of the CBA Executive Committee – I have learned that there’s no negotiating with a bully. If you give a bully your dinner money on Monday, it doesn’t matter how little he asks or you give him, or what he says about that will be the end of it, you had better know that he will be back on Tuesday, and Wednesday, and every day until you punch him on the nose, and stop giving. (In fact, I learned that lesson at school, forty years ago.)

Mr Grayling is a bully. He is unlike any other Lord Chancellor there has been – certainly in my time, or ever. The position used to be reserved for eminent lawyers, and was regarded by them as a non-political appointment, and the pinnacle of a career in the law. Charlie Falconer broke that mould, but Grayling has stamped all over the pieces and swept them away. He regards the post as a stepping-stone to higher things. He cares not for the value (as opposed to the price) of the family silver of which he is the custodian. He is in charge of a small spending department, and one which has relatively little control over that spend – criminal legal aid being typical, in that it is entirely responsive to legislative, and prosecutorial,decisions. That said, Mr Grayling does not fight for his departmental spend in negotiations with the Treasury. He would rather gain political ‘brownie points’ with Gideon by giving him every budget cut he asks for, and more, in the hope of personal advancement. By way of example, the cut demanded of him by Gideon last year was £142m: http://www.lawgazette.co.uk/news/osborne-imposes-further-142m-of-cuts-on-moj/70016.article but Grayling unilaterally decided to make it £220m – a figure which has now acquired the status of holy writ, when it is nothing of the sort.

But back to the client. Of course, I am unhappy about even the possibility of leaving my client in the lurch. Every barrister is. But barristers are, though you may not like to think so, in reality no different from any other wage-labourer. I do the job I do not out of a love of my clients, or even an overwhelming sense of duty to them, but to earn a living. In that respect, I am no different to a tube train driver, a fireman, a doctor, or anyone else. Strikes hurt the service user. That’s what they are meant to do. The labourer has no other weapon but the withdrawal of his labour if he is unhappy at the price on offer. Strikes are always a matter of last resort; the ‘nuclear option’; especially for barristers. But there comes a time when that nuclear option becomes the only option. And that, I regret to say, is the position the criminal Bar faces now. Mr Grayling is not for negotiating. There is no reasoning with him. This goes against all of our instincts as lawyers. We are used to placing rational arguments before a decision-maker who has no agenda – a judge or jury – in the expectation that reason will prevail. Mr Grayling is not a judge, and it is a serious mistake to try and deal with him as if he were. He is a hard-nosed politician, who sees a desire to talk, and an unwillingness to withdraw labour, as simply weakness to be exploited.

So, much as I regret having to ‘gamble’ with my clients’ liberty, in reality I know that the judges know that it’s not their fault that I’m not there, and they are sensible enough to wait until I am there. The judges may privately fume at the inconvenience I cause them, and the client may be annoyed by the delay in dealing with his case, but there is a bigger picture here. We are embarked upon a struggle for the very survival of our profession, a profession that has endured for hundreds of years, and which serves the public interest well (and cheaply). Mr Grayling, who knows the price of everything, but the value of nothing, cannot be permitted to destroy the Crown Jewels of which he is but a temporary custodian.

If that means going on strike – and in my view, and for the reasons I have set out, it does -then that is what must happen. The clients will be inconvenienced, but no more, and in the long term, they, and the wider public, will thank us for what we are about to do.

Ian West

Fountain Chambers

Middlesbrough.

 

 

 

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2 thoughts on “Why the Criminal Bar must strike

  1. I have not met a barrister at court in the last six months who thinks other than that the Bar must strike. Nigel Pascoe QC was wrong when he raised the spectre of barristers being hauled up in front of the BSB for refusing to attend court. The evidence of 6.1.14 has shown him to be wrong. Not a single Judge, on 6.1.14 in England and Wales, threatened or rebuked any member of the Bar so far as I am aware. Most didn’t even mention their non-attendance. It was just assumed nobody would be at court.

    The vast majority of Judges appear to me to be sympathetic to the Bar’s cause, not least because they do not want to have to spend the next 20 years presiding over litigant in person and other cases which are poorly prepared and poorly presented by a demoralised group of professionals being paid peanuts, who are uniformly ‘grey’. Judges don’t want cheap conveyor-belt justice. They want the job done properly. So I don’t think we need fear the reaction of Judges at all.

    My assessment is that we have got way past the debate on whether to strike. For CBA members staring into oblivion it is not now whether but how often to strike and what other action additionally to take.

    Ivan Lawrence QC is right when he argues that we should give the Government a list of dates on which we shall be withdrawing our labour. It may be however that the time has not quite yet arrived to do that. The CBA are pursuing a careful, step by step approach, which is entirely to be respected and it may be that what Ivan Lawrence proposes is yet to come as part of that approach. I hope so. If it becomes necessary. But he is right to say that until Ministers start fearing what the Bar may do we shall get nowhere.

    My prediction is that once we start refusing to do returns on 7.3.14 there will soon be chaos. Every court list, up and down the country, every day of the week, depends on barristers doing sentences, PTR’s, mentions and the like to keep the cases going. We are paid peanuts or not at all for that work and no-one will have the slightest hesitation in declining to do it on behalf of others. Solicitor advocates won’t want to do it either. Judges won’t know from one moment to the next whether a hearing can go ahead.

    So, I am optimistic. Nigel Lithman QC and the CBA team are doing a fine job. Where they lead we shall follow. I hope the strategy will be – for N Lithman QC to stop the cuts this year and for Tony Cross QC to campaign from this autumn for a complete re-settlement to address, across the board, the absurdities in the way we are remunerated. Winning the current battle and stopping the cuts is just half the picture. It is impossible, even for a fully employed barrister, to earn a living anymore. We have, at some stage, to start regaining the lost ground of the last 15 years.

    In saying all of the above I do not for a moment forget that this fight is not just about what criminal legal aid lawyers earn. It is very much about preventing the justice system we have nurtured from being utterly degraded. That is a cause worth fighting for. That should be the banner we take to the public.

  2. I reluctantly agree with Ian. I have been doing this job for 22 years and can already see where the ‘austerity’ measures are resulting in a lower quality of justice for all. The serving of a case summary at Narey seeming enough to warrant some judges to insist that you should be advising the client to plead guilty, even where you have seen no evidence at all. Cut price justice is no justice at all. We are all now considering leaving a job that we love because we cannot stomach the thought of being forced to conduct justice on the cheap. It seems that there is money around when we need it, a bottomless pit regarding our flood defences, but not to preserve our beloved justice system which up until now has been the envy of the world. If we don’t fight for it, it will be gone. Who, if not us? If we leave it any longer, it will be too late. We are advocates for those who have no voice,who will do it when we’re gone? G4s?

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