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."