Tip for Raab: best not to wink when you see the CBA
QCs have slammed the Lord Chancellor, Dominic Raab, and the Lord Chief Justice for their "misleading" and "intimidating" responses to criminal barristers going on strike.
This week, criminal barristers staged walk outs over a legal aid funding row with the government. The Criminal Bar Association (CBA) said that "sliding pay and worsening conditions" has led to criminal advocates leaving the profession in their droves, which in turn has contributed to the huge backlog of cases in crown courts.
The Lord Chief Justice, Lord Burnett of Maldon, issued a warning to striking barristers in a statement saying that "a failure to attend at court, having accepted instructions, may amount to professional misconduct."
Lord Burnett said that if an instructed barrister does not attend court, "the judge should ask the defendant...whether they have discussed the matter with their barrister and whether they have agreed to their barrister’s non-attendance." The CPS would then decide whether to "make an application for wasted costs."
"All cases in which there is non-attendance should be referred to the Senior Presiding Judge’s Office to consider whether to involve the Bar Standards Board," said the Lord Chief Justice. "The question whether a failure to attend amounts to professional misconduct, will then be a matter for any disciplinary process."
The Bar Standards Board stated that barristers who deliberately failed to attend a hearing "may face regulatory action".
Two former chairs of the CBA, Caroline Goodwin QC and Chris Henley QC, penned an open letter to The Times, that was signed by over 70 QCs.
The QCs said that Lord Burnett's statement had been interpreted by "many" barristers "as an attempt to intimidate us". They argued that Lord Burnett appeared to contradict himself, as he stated at the outset that "the judiciary is not a party to the dispute", but then instructed judges "to report the names of any barrister who takes such action."
"We are concerned that the independent office of the lord chief justice risks being seen as doing the job of a partisan enforcer for a government whose degrading of the justice system has been draining it of the very professionals on which it relies: barristers to prosecute, defend and provide judges," wrote the QCs.
The letter added that Lord Burnett's "warning may have the effect of condemning the courts to a painful asphyxiation rather than providing the oxygen that we all, judges, barristers and those unwillingly caught up in the system, so urgently need."
Chris Henley QC told RollOnFriday that the Lord Chief Justice's comments "simply made us more determined to stand firm. It was very poorly judged and firing aggression on completely the most vulnerable targets, whose commitment keeps the system he presides over going."
"If any barrister is disciplined I predict the whole profession would immediately walk out. Discipline every single one of us for bothering to care about the future of criminal justice or leave us all alone."
Lord Burnett's statement was also lambasted by the London Criminal Courts Solicitors Association:
Also invoking the ire of striking barristers, was Dominic Raab. The Lord Chancellor has failed to ingratiate himself with the CBA in the past, and his statement on the strikes will not have improved the relationship:
Dissecting Raab's statement, Henley QC told RollOnFriday: "The 43.5% is deliberately misleading. There were three options on the electronic ballot paper which involved supporting the same ‘strike’ action as is now happening."
"The three options were to strike and take no other action, to strike with no returns, or to strike with no returns and no new work. 81.5% voted in favour of one of the striking options, on a very high turnout. Only 18.5 % voted against striking."
Henley told RollOnFriday that Raab's reference to a 15% rise, "would not apply to any of the 60,000 cases in the backlog of work. It would only apply to future/new cases from October. So no barrister would see any benefit until the back end of next year at the earliest. Raab knows this."
Henley also said that an independent review by Sir Christopher Bellamy QC called for "an immediate injection of a minimum of 15%" last December. But "under the government’s proposals", it would take two years from that review for such rises to be implemented, claimed Henley.
"Hundreds of junior criminal barristers have left the profession in the last two years, and hundreds more will leave before any of us see any benefit from fee increases," said the QC.
Raab's name also cropped up in reports in the Law Gazette and The Times, concerning an alleged government memo requesting that courts hand over striking barristers' ID. According to the stories, an email was sent by HM Courts and Tribunal Service instructing court staff to report to the deputy prime minister, the names of any barristers who failed to attend court.
But when RollOnFriday contacted the Ministry of Justice about the supposed email, a spokesman said: "This was a misinterpretation and the copy was changed around this – It wasn’t accurate."
Raab + LCJ = Scum.
Raaaaab is an extraordinary example of failing upwards and then sideways. Useless in his Brexit role. Oversaw the biggest British foreign policy humiliation in half a century in Afghanistan and now seems determined to wreck what’s left of criminal justice. I would happily slam his face repeatedly into a desk.
And the Tory rags with straight faces run one story having a pop at striking barristers with another underneath about government plans to legislate to ensure criminals go to jail more quickly and for longer.
While i'm sympathetic and would support criminal barristers not taking on new instruction, where instruction has been accepted you are accepting a duty which you should make every effort to see through, regardless of your opinion on political or industrial concerns.
A little bit squealy from the Criminal Bar here.
Fair enough, go on strike. You want more money then that's a way of going about it. I don't necessarily disagree with your complaints. The money does suck.
But you can't have your cake and eat it. As I suspect many of the current strikers will have huffed about this Government's actions in the past.
If your strike action causes you to knowingly leave a client that you had previously undertaken to be the advocate for alone in the dock without representation then you do have to accept any consequences of that decision. It is entirely your fault. You took a deliberate decision to leave them there, so you can't be surprised if/when people hold you to account for that.
Put it another way, deliberately failing to turn up to court for any other reason would be a potential disciplinary matter. So saying that you deliberately didn't turn up because you and many others wanted more money doesn't really change that.
What barristers are really upset about here is that they were working on the, possibly lazy, assumption that the court system and BSB would nod in vigorous agreement with them, that everything would be blithely adjourned into the future, and that nobody would ever say a cross word to them about it.
It's not a moan about "intimidation". It's a complaint that the rules aren't being bent for them in the way they expected.
Anonymous @09.03. Damn right.
Interesting to see Raab apparently arguing against FPTP there.
I am on the whole in support of the Bar and this strike. By being self-employed, the Bar are able to squeeze the Government in ways the LA solicitors cannot.
The systematic dismantling of the justice system hurts us all, regardless of practise area. We were once seen as the most fair system in the world. Successive governments have sought to undermine lawyers at every turn, since at least 1997. If we cannot access justice, then lord help us all. It is naive to think it will never happen to me or one of my family. If Home Secretary gets her way then soon anyone can be rounded up and deported on her whim.... careful what you wish for.
However, as sympathetic as I am to the criminal Bar's plight. This sort of nonsense sticks in my craw:
" ... whose degrading of the justice system has been draining it of the very professionals on which it relies: barristers to prosecute, defend and provide judges,"
Yes only the barristers can possibly be the talent pool to select the future judiciary. If only there were another talented group of legal professionals that were capable of reasoned judgement of complex arguments. Perhaps a group that don't love the sound of their own voice so much that even when they have crossed the Rubicon to the bench - can't help but shout, moan and belittle those still at the coalface. FFS!